The first is Haynsworths and Prettyes Case Where a man seis'd of Land in Soccage having Issue two Sons and a Daughter devis'd to his youngest Son and Daughter Twenty pounds apiece to be paid by his eldest Son and devis'd his Lands to his eldest Son and his Heirs upon Condition if he paid not those Legacies that his Land should be to his second Son and Daughter and their Heirs The eldest Son fail'd of payment After Argument upon a Special Verdict It was resolv'd by the Court clearly That the second Son and Daughter should have the Land 1. For that the devise to his Son and his Heir in Fee Hill 41. El. Cr. 833. a. being no other then what the Law gave him was void 2. That it was a future devise to the second Son and Daughter upon the contingent of the eldest Sons default of payment 3. That it was no more in effect than if he had devis'd That if his eldest Son did not pay all Legacies that his land should be to the Legatories and there was no doubt in that Case but the land in default of payment should vest in them Which Case in the reason of law differs not from the present Case where the land is devis'd by devise future and executory to the Nephew upon a contingent to happen by the Testators Son and Daughters having no issue 18 Jac. Pell Browns C. Cro. f. 590. The second Case is that of Pell and Brown the Father being seis'd of certain land having Issue William his eldest Son Thomas and Richard Brown devis'd the land to Thomas and his Heirs for ever and if Thomas died without Issue living William then William should have the lands to him his Heirs and Assigns 1. This was adjudg'd an Estate in Fee-simple in Thomas 2. That William by way of Executory devise had an Estate in Fee-simple in possibility if Thomas died without Issue before him And it being once clear That the Estate of Thomas was a Fee-simple determinable upon a contingent and not an Estate tayl and so in the present case it being clear'd that George the Testators Son had the land descended to him in Fee from the Testator and took no Estate tayl expresly or by implication from the Will it will not be material whether the Contingent which shall determine that Fee-simple proceeds from the person which hath such determinable Fee or from another or partly from him and partly from another as in Haynsworth's Case the Son determined his Fee-simple by not paying the Legacies in Pell and Brown's Case Thomas his Fee-simple determined by his dying without Issue living William the Fee-simple vested in George the Son by descent determines when he and his two Sisters dye without Issue and upon such determination in every of these Cases the future and executory devise must take effect But the great Objection is That if this should be an executory devise to the Nephew upon the contingent of George the Son and both his Sisters dying without Issue It will be dangerous to introduce a new way of perpetuity for if a man have several Children and shall permit his Estate to descend or by his Will devise it to his Heir so as he may therein have an unquestionable Fee-simple which is the same with permitting it to descend he may then devise it futurely when all his Children shall dye without Issue of their bodies to J. S. and his Heirs as long as A. B. and C. strangers shall have any Heirs of their bodies living and then to a third person by like future devise For if he should devise it futurely to J. S. and his Heirs as long as J. S. had any Heirs of his body it were a clear Estate tayl in J. S. upon which no future devise could be but it would be a Remainder to be docked This Objection was in some measure made by Doderidge in Pell and Browns Case and the Iudges said there was no danger Vid. Stiles Rep. Gay Gaps Case 258 275. because the Estate in Fee of Thomas did not determine by his dying without Heir of his body generally but by dying without Issue living William for if the land had been given to Thomas and his Heirs for ever and if he died without Heirs of his body then to William and his Heirs Thomas his Estate had been judg'd an Estate tayl with the Remainder to William and not a Fee upon which no future or executory devise can be So was it adjudg'd in Foy and Hinds Case 22 Jac. Cr. f. 695. 6. and anciently 37 Ass p. 18. 5. H. 5. f. 6. and to be within the reason of Mildmay and Corbets Case of Perpetuities But in Pell and Browns Case the Iudges said it was more dangerous to destroy future devises than to admit of such Perpetuities as could follow from them any way by determinable Fee-simples which is true for a Fee simple determinable upon a contingent is a Fee-simple to all intents but not so durable as absolute Fee-simples And all Fee-simples are unequally durable for one will escheat sooner than another by the failer of Heirs An Estate of Fee-simple will determine in a Bastard with his life if he want Issue An Estate to a man and his Heirs as long as John Stiles hath any Heir which is no absolute Fee-simple is doubtless as durable as the Estate in Fee which John Stiles hath to him and his Heirs which is an absolute Fee-simple Nor do I know any Law simply against a Perpetuity but against Intails of Perpetuity for every Fee-simple is a perpetuity but in the accident of Alienation and Alienation is an incident to a Fee-simple determinable upon a contingent as to any more absolute or more perdurable Fee-simple The Chief Justice Justice Archer and Justice Wylde for the Defendant Justice Tyrrell for the Plaintiff Judgment for the Defendant Hill 21 22 Car. II. C. B. Craw versus Ramsey Philip Craw is Plaintiff and John Ramsey Defendant In an Action of Trespass and Ejectment THE Plaintiff declares That Lionel Tolmach Baronet and Humphrey Weld Esquire January the Twentieth the Sixteenth of the King demis'd to the Plaintiff the Mannor of Kingston with the appurtenances in the County of Surrey one Messuage two Barns one Dove-house two Gardens eighty Acres of Land and ten Acres of Meadow with the appurtenances in Kingston aforesaid and other places and also the Rectory of Kingston aforesaid To have and to hold to the said Philip and his Assignes from the Feast of the Nativity last past for five years next ensuing By virtue whereof he entred into the Premisses and was possessed until the Defendant the said Twentieth of January in the Sixteenth year of the King entred upon him and Ejected him with force to his Damage of Forty pounds To this the Defendant pleads he is not Culpable Vpon a Special Verdict it appear'd That Robert Ramsey Alien Antenatus had Issue 1. Robert 2. Nicholas 3. John 4. George Antenatos
during the wives life which was not to be intended 15 El. Moore f. 123. n. 265. Another Case I shall make use of is a Case Paschae 15 El. A man seis'd of a Messuage and of divers Lands occupied with it time out of mind leased part of it to a stranger for years and after made his last Will in these words I will and bequeath to my wife my Messuage with all the Lands thereto belonging in the occupation of the Lessee and after the decease of my Wife I will that it with all the rest of my Lands shall remain to my younger Son The Question in that Case was Whether the wife should have the Land not leased by implication for her life because it was clear the younger Son was to have no part until the death of the wife And the Lord Anderson at first grounding himself upon that Case in Brook as it seems of 29 H. 8. twice by Brook remembred in his Title Devise n. 28. and after n. 52. was of opinion That the wife should have the Land not leased by implication But Mead was of a contrary opinion for that it was expresly devis'd That the wife should have the Land leas'd and therefore no more should be intended to be given her but the Heir should have the Land not in lease during the wives life To which Anderson mutata opinione agreed Hence perhaps many have collected That a person shall not take Land by Implication of a Will if he takes some other Land expresly by the same Will but that is no warrantable difference For vary this Case but a little as the former case was varied That the Land in lease was devis'd to the wife for life and after the death of the wife all the Devisors land was devis'd to the youngest Son as this Case was and that after the death of the wife and the youngest son the Devisors Heir should have the Land both leas'd and not leas'd it had been clear that the Heir exactly according to the Case of 13 H. 7. should have been excluded from all the Land leas'd and not leas'd until after the death of the wife and the younger son And therefore in such case the wife by necessary implication should have had the Land not leas'd as she had the Land leas'd by express devise and that notwithstanding she had the leas'd Land by express devise for else none could have the Land not leas'd during the wives life Horton vers Horton 2 Jac. Cr. f. 74. 75. Wadham made a Lease for years upon condition the Lessee should not alien to any besides his Children The Lessee deviseth the term to Humphrey his son after the death of his wife and made one Marshall and another his Executors and died The Lessor entred as for breach of the Condition supposing this a devise to the wife of the term by implication The opinion of the Judges was It was no devise by implication but the Executors should have the term until the wives death but it was said If it had been devis'd to his Executors after the death of his wife there the wife must have it by implication or none could have had it But Popham denied that Case because if the devise had been to the Executors after the wives death the Executors should when the wife died have had the term as Legatees but until her death they should have it as Executors generally which by all opinions fully confirms the difference taken That a devise shall not be good by implication when the implication is not necessary and in this Case all agreed the Case in 13 H. 7. to be good Law because the implication there was necessary Edward Clatch being seis'd of two Messuages in Soccage tenure Dyer 15 16 El. 4. 330. b. and having Issue a Son and two Daughters by three several Venters His Son being dead in his life time and leaving two Daughters who were Heirs at Law to the Father devis'd one of the Messuages to Alice his Daughter and her Heirs for ever and the other to Thomazine his Daughter and her Heirs for ever with limitation That if Alice died without Issue living Thomazine Thomazine should then have Alice's part to her and her Heirs and if Thomazine died before the Age of Sixteen years Alice should have her part in Fee also And if both his said Daughters died without Issue of their bodies then the Daughters of his Son should have the Messuages The youngest daughter of the Testator died without Issue having past her Age of sixteen years It was resolv'd That the words in the Will If his two Daughters died without Issue of their Bodies did not create by implication cross remainders in tayl to the Devisors Daughters whereby the eldest should take the part of the youngest but her part should go to the Heirs at Law according to the Limitation of the Will and those words were but a designation of the time when the Heirs at Law should have the Messuages Note That one of the Daughters dying without Issue the Heirs at Law by the Will had her part without staying until the other Daughter died without Issue 1. From these Cases I first conclude That only possible implication by a Will shall not give the Land from the right Heir but a necessary implication which excludes the right Heir shall give it 2. That the difference taken is not sound That one shall not take by implication of a Will any Land where the same person hath other Land or Goods expresly devis'd by the same Will for if the implication be necessary the having of Land or any other thing by express devise will not hinder another taking also by implication as appears in the three Cases by me made use of viz. 13 H. 7. 3 E. 6. 15 Eliz. cited out of Moore 3. Whether any thing be given expresly by Will or not a possible Implication only shall not disinherit the Heir where it may as well be intended that nothing was devis'd by implication as that it was But if any man think that to be material in this Case the Daughters had respective Portions expresty devis'd them viz. Six hundred pounds to each of them and therefore shall not have the Land also by implication only possible to disinherit the right Heir Quest 2 For the second point These words My Will is if it happen my Son George Mary and Katharine my Daughters to dye without Issue of their Bodies lawfully begotten then all my free-Free-lands shall remain and be to my said Nephew William Rose and his Heirs for ever are so far from importing a devise of the Land to the Son and Daughters for their lives with respective Inheritances in tayl by any necessary implication that both Grammatically and to common intendment they import only a designation and appointment of the time when the Land shall come to the Nephew namely when George Mary and Katherine happen to dye Issuless and not before And where
the words of a Will are of ambiguous and doubtful construction they shall not be interpreted to the disinheriting of the right Heir as is already shew'd This being clear That there is no devise by this Will of the Land by implication in any kind to the Son and Daughters it follows that Katherine the surviving Daughter of the Testator and Lessor of the Plaintiff had no Title to enter and make the Lease to the Plaintiff Gardner and then as to the Case in question before us which is only Whether the Defendants be culpable of Ejecting the Plaintiff It will not be material whether The devise to the Nephew William Rose be void or not and if not void how and when he shall take by the devise which may come in question perhaps hereafter But to that point ex abundante and to make the Will not ineffectual in that point of the devise to the Nephew if no Estate for lives or other Estate be created by this Will by Implication to the Son and Daughters it follows That the Nephew can take nothing by way of Remainder for the Remainder must depend upon some particular Estate and be created the same time with the particular Estate Cok. Litt. f. 49. a. The Remainder is the residue of an Estate in Land depending upon a particular Estate and created together with the same and the Will creating no particular Estate the consequent must be That the Land was left to descend in Fee-simple to the heir at law without creating either particular Estate or Remainder upon it Sir Edward Coke hath a Case Cok. Litt. f. 18. a. but quotes no Authority for it If Land be given to H. and his heirs as long as B. hath heirs of his body the Remainder over in Fee the Remainder is void being a Remainder after a Fee-simple though that Fee-simple determines when no heirs are left of the body of B. whether that case be law or not I shall not now discuss in regard that when such a base Fee determines for want of Issue of the body of B. the Land returns to the Grantor and his heirs as a kind of Reversion and if there can be a Reversion of such Estate I know not why a Remainder may not be granted of it but for the former reason this can be no Remainder because no particular Estate is upon which it depends and if the Lord Coke's Case be law it is the stronger Cok. Litt. f. 18. a. Sect. 11. that no Remainder is in this Case But without question a Remainder cannot depend upon an absolute Fee-simple by necessary reason For when all a man hath of Estate or any thing else is given or gone away nothing remains but an absolute Fee-simple being given or gone out of a man that being all no other or further Estate can remain to be given or dispos'd and therefore no Remainder can be of a pure Fee-simple To this purpose is the Case of Hearne and Allen in this Court 2 Car. 1. Cr. f. 57. Richard Keen seis'd of a Messuage and Lands in Cheping-Norton having Issue Thomas his Son and Anne a Daughter by the same Venter devis'd his Land to Thomas his Son and his heirs for ever and for want of heirs of Thomas to Anne and her heirs and died It became a Question Whether Thomas had an Estate in Fee or in Tayl by this Will for he could not dye without heir if his Sister outlived him who was to take according to the intent of the Devisor Two Judges held it and with reason to be an Estate tayl in Thomas and the Remainder to the Daughter who might be his heir shew'd That the Devise to him and his heirs could be intended only to be to him and the heirs of his body But three other Judges held it to be a devise in Fee but all agreed if the Remainder had been to a Stranger it had been void for then Thomas which is only to my purpose had had an absolute Estate in Fee after which there could be no Remainder which is undoubted law The Case out of Coke's Littleton and this Case are the same to this purpose That a Remainder cannot depend upon a Fee-simple yet in another respect they much differ For in this last Case after an Estate in Fee devis'd to Thomas and if he died without heir the Remainder to a Stranger or Sister of the half blood not only the Remainder was void as a Remainder but no future devise could have been made of the land by the Devisor for if Thomas died without heir the land escheated and the Lords Title would precede any future devise But in that Case of Sir Edward Coke which he puts by way of Grant if it be put by way of devise That if land be devised to H. and his heirs as long as B. hath heirs of his body the Remainder over such later devise will be good though not as a Remainder yet as an Executory devise because somewhat remain'd to be devis'd when the Estate in Fee determin'd upon B. his having no Issue of his Body And as an Executory Devise and not as a Remainder I conceive the Nephew shall well take in the present Case And the intention of the Testator by his Will will run as if he had said I leave my Land to descend to my Son and his Heirs according to the Common Law until he and both my Daughters shall happen to dye without Issue And then I devise my Land to my Nephew William Rose and his Heirs Or as if he had said my Son shall have all my Land To have and to hold to him and his Heirs in Fee-simple as long as any Heirs of the bodies of A.B. and c. shall be living and for want of such Heirs I devise my Land to my Nephew William Rose and his Heirs The Nephew shall take as by a future and Executory Devise And there is no difference whether such devise be limited upon the contingent of three Strangers dying without Heirs of their bodies or upon the contingent of three of the Devisors own Children dying without Heirs of their Bodies for if a future devise may be upon any contingent after a Fee-simple it may as well be upon any other contingent if it appear by the Will the Testator intended his Son and Heir should have his Land in Fee-simple This way of Executory devise after a Fee-simple of any nature was in former Ages unknown as appears by a Case in the Lord Dyer 29 H. 8. f. 33. concerning a Devise to the Prior of St. Bartholomew in West-Smithfield by the clear Opinion of Baldwin and Fitz herbert the greatest Lawyers of the Age. But now nothing more ordinary The Cases are for the most part remembred in Pell and Browns Case that is Dyer f. 124. Ed. Clatch his Case f. 330. b. 354. Wellock Hamonds Case cited in Borastons Case 3. Rep. Fulmerston Stewards Case c. I shall instance two Cases
the first Cestuy que use nor his Heir the last Cestuy que use in the Case could nor can have any benefit of this warranty because William the first Cestuy que use nor his Heir could not nor can warrant to himself but as to William and his Heirs the warranty is clearly extinct The Argument And as to the first Question I conceive the Law to be that the warranty of William the Tenant in tayl descending upon Elizabeth and Sarah the Demandants his Heirs at Law is no barr in the Formedon in Reverter brought by them as Heirs to William their Grandfather the Donor though it be a Collateral warranty I know it is the perswasion of many professing the Law That by the Statute of Westminster the second De donis conditionalibus the Lineal warranty of Tenant in tayl shall be no barr in a Formedon in the Descender but that the Collateral warranty of Tenant in tayl is at large as at the Common Law unrestrain'd by that Statute Sir Edward Coke in his Comment upon Section 712. Sect. 712. of Littleton A lineal warranty doth not bind the right of an Estate tayl for that it is restrain'd by the Statute de donis Conditionalibus And immediately follows A lineal warranty and assets is a barr of the right in tayl and is not restrain'd But the reason why the warranty of Tenant in tayl with Assets binds the right of the Estate tayl is in no respect from the Statute de donis but is by the Equity of the Statute of Glocester by which the warranty of Tenant by the Courtesie barrs not the Heir for the Lands of his Mother if the Father leave not Assets to descend in recompence And therefore it was conceived after the Statute de donis was made That if Tenant in tayl left Assets to descend in Fee-simple his warranty should bind the right of the Issue in tayl by the equity of that preceding Statute of Glocester Whereas if the Statute of Glocester had not been the Lineal warranty of Tenant in tayl had no more bound the right of the Estate tayl by the Statute de donis with Assets descending than it doth without Assets For the better clearing therefore of the Law in the Case in question I shall preparatorily assert some few things and clear what I so assert without which the truth of the Conclusion I hold will not appear so naked to the Hearers as it should Ass 1. The first is That at the Common Law the distinction of a lineal and collateral warranty was useless and unknown For though what we now call a Collateral and a lineal warranty might be in speculation and notionable at the Common Law as at this day a Male warranty or a Female warranty may be yet as to any effect in Law there was no difference between a Lineal warranty and a Collateral but the warranty of the Ancestor descending upon the Heir be it the one or the other did equally bind And this as it is evident in it self so is it by Littleton whose words are Litt. Sect. 697. Before the Statute of Glocester all warranties which descended to them who are Heirs to those who made the warranties were barrs to the same Heirs to demand any Lands or Tenements against the warranties except the warranties which commence by disseisin Therefore if a Question had been at the Common Law only Whether in some particular Case the Ancestors warranty had bound the Heir It had been a sensless Answer to say it did or did not because the warranty was Lineal or Collateral for those warranties were not defined at the Common Law nor of use to be defined But the proper Answer had been That the warranty did bind the Heir because it commenc'd not by disseisin for every warranty of the Ancestor but such descending upon the Heir did bind him So if after the Statute of Glocester Tenant by the Courtesie had aliened with warranty had it been demanded if the Heir were barr'd by that warranty it had been an absurd Answer That he was not because it was a Collateral warranty of his Father without Assets For all Collateral warranties of the Father were not restrained but his warranty in that Case which could be no other than Collateral was restrained by the Statute Therefore The adequate Answer had been That the Fathers warranty bound not in that Case without Assets because the Statute of Glocester had so restrained it My second Assertion is Ass 2. That the Statute de Donis restrains not the warranty of Tenant in tayl from barring him in the Remainder in tayl by his warranty descending upon him 1. For that the mischief complained of and remedied by the Statute is That in omnibus praedictis casibus therein recited post prolem suscitatam habuerunt illi quibus Tenementum sic conditionaliter datum fuit hucusque potestatem alienandi Tenementum sic datum exhaeredandi exitum eorum contra voluntatem Donatoris But the warranty of the Donee in tayl descending upon him in the Remainder who regularly claims by purchase from the Donor and not by descent from the Donee in tayl could be no disinheriting of the Issue of the Donee claiming by descent from him against which disinheriting only the Statute provides which is evident by the Writ of Formedon in the Descender framed by the Statute in behalf of such Issue of the Donee whom the Statute intends 2. The Statute did not provide against Inconveniences or Mischiefs which were not at the time of making the Statute but against those which were But at the making of it there could be no Remainder in tayl because all Estates which are Estates tayl since the Statute were Fee-simples Conditional before the Statute upon which a Remainder could not be limited So is Sir Edward Coke in his Comment upon the Statute de Donis The Formedon in Reverter did lye at Common Law Cok. part 2. f. 336. but not a Formedon in Remainder upon an Estate tayl because it was a Fee-simple Conditional whereupon no Remainder could be limited at Common Law but after the Statute it may be limited upon an Estate tayl in respect of the Division of the Estates 3. The Statute formed a Writ of Formedon in the Descender for the new Estate tayl created by the Statute and mentions a Formedon in the Reverter as already known in the Chancery for the Donor for whom the Statute likewise intended to provide but formed or mentioned none for the Remainder in tayl And the Cases are common in Littleton Litt. Sect. 716 718 719. and in many other Books that the warranty of Donee in tayl is Collateral to him in the Remainder in tayl and binds as at the Common Law But thence to conclude That therefore the warranty of the Donee in tayl shall barr the Donor of his Reversion because it is a Collateral warranty also is a gross Non sequitur for the Donees warranty doth not therefore barr
the Remainder because it is a Collateral warranty but because the Statute de Donis doth not restrain his warranty from barring him in the Remainder as hath been clear'd but leaves it as at Common Law but it doth restrain his warranty from barring him in the Reversion as shall appear There is one Case in Littleton remarkable for many Reasons where the warranty of Tenant in tayl is lineal and not collateral to the person in Remainder and therefore binds not if the Case be Law as may be justly doubted as Littleton is commonly understood Litt. Sect. 719. Land is given to a man and the heirs males of his body the Remainder to the heirs females of his body and the Donee in tayl makes a Feoffment in Fee with warranty and hath Issue a Son and a Daughter and dieth this warranty is but a lineal warranty to the Son to demand by a Writ of Formedon in the Descender and also it is but lineal to the Daughter to demand the same Land by a Writ of Formedon in the Remainder unless the Brother dieth without Issue male because she claimeth as Heir female of the body of her Father engendred But if her Brother release to the Discontinuee with warranty and after dye without Issue this is a collateral warranty to the daughter because she cannot conveigh the right which she hath to the Remainder by any means of descent by her brother 1. Here the warranty of the Father Donee in tayl is but lineal to the Daughter in Remainder in tayl But she claims saith the Book her Remainder as heir female of the body of the Donee in tayl which differs the Case from other persons in Remainder of an Estate tayl But of this more hereafter 2. And by the way in this Case Sir Edward Coke though he hath commented upon it hath committed an over-sight of some moment by using a Copy that wanted a critical emendation For where it is said That the warranty of the Father is but lineal to the Daughter to demand the Land by a Formedon in the Remainder unless the Brother dye without Issue-male because she claims as Heir female of the body of her Father By which reading and context the sense must be That if the Son dye without Issue male of his body then the warranty of the Father is not lineal to the Daughter cujus contrarium est verum for she can claim her Remainder as heir female of the body of her Father and thereby make the Fathers warranty lineal to her but only because her Brother died without Issue male That which deceived Sir Edward Coke to admit this Case as he hath printed it was a deprav'd French Copy thus Si non frere devyast sans Issue male which truly read should be Si son frere devyast and the Translation should be Not unless the Brother dye without Issue male but If her Brother dye without Issue male Another reason is that his French Copy was deprav'd Because the French of it is Si non frere devyast sans Issue male which is no Language for that rendred in English is Vnless Brother dye For it cannot be rendred as he hath done it unless the Brother dye without the French had been Si non le frere devyast and not Si non frere devyast Sir Edward Coke's first Edition of his Littleton and all the following Editions are alike false in this Section I have an Edition of Littleton in 1604. so deprav'd which was long before Sir Edward Coke publisht his but I have a right Edition in 1581. which it seems Sir Edward Coke saw not where the Reading is right Si son frere devyast sans Issue male Therefore you may mend all your Littletons if you please and in perusing the Case you will find the grossness of the false Copies more clearly than you can by this my Discourse of it And after all I much doubt whether this Case as Littleton is commonly understood that is That this lineal warranty doth not bind the Daughter without Assets descending be Law my Reason is for that no Issue in tayl is defended from the warranty of the Donee or Tenant in tayl but such as are inheritable to the Estates intended within that Statute and no Estates are so intended but such as had been Fee-simples Conditional at the Common Law And no Estate in Remainder of an Estate tayl that is of a Fee Conditional could be at Common Law All Issues in tayl within that Statute are to claim by the Writ there purposely formed for them which is a Formedon in the Descender not in Remainder 3. A third thing to be cleared is That the Statute de Donis did not intend to preserve the Estate tayl for the Issue or the Reversion for the Donor absolutely against all warranties that might barr them but only against the Alienation with or without warranty of the Donee and Tenant in tayl only for if it had intended otherwise it had restrain'd all Collateral warranties of any other Ancestor from binding the Issue in tayl which it neither did nor intended though well it might such warranters having no title 4. The Statute de Donis did not intend to restrain the Alienation of any Estates but Estates of Inheritance upon Condition expressed or implyed such as were Fee-simples Conditional at Common Law And therefore if Tenant for life aliened with warranty which descended upon the Reversioner such Alienation or Warranty were not restrained by this Statute but left at Common Law 1. Because the Estate aliened was not of Inheritance upon Condition within that Statute 2. He in the Reversion had his remedy by entring for the forfeiture upon the Alienation if he pleas'd which the Donors of Fee-simples Conditional could not do These things cleared I think it will be most manifest by the Statute de Donis and all ancient Authority That the warranty of Tenant in tayl though it be a Collateral warranty will not barr the Donor or his Heir of the Reversion After the Inconvenience before recited That the Donees disinherited their Issue against the form of the Gift then follows Et praeterea cum deficienti exitu de hujusmodi Feoffatis Tenementum sic datum ad donatorem vel ad ejus haeredes reverti debuit per formam in Charta de dono hujusmodi expressam licet exitus si quis fuerit obiisset per factum tamen Feoffamentum eorum quibus Tenementum sic datum fuit sub conditione exclusi fuerunt hucúsque de Reversione eorundem Tenementorum quod manifeste fuit contra formam doni Hitherto the Inconveniences and Mischiefs which followed the Issue of the Donees and to the Donor when they fail'd by the Donees power of Alienation are only recited in the Statute without a word of restraint or remedy The follows the remedy and restraint in these words only and no other Propter quod Dominus Rex perpendens quod necessarium utile est in praedictis casibus which
Laws provide against ills quae frequentius accidunt It is true when the words of a Law extend not to an inconvenience rarely happening and do to those which often happen it is good reason not to strain the words further than they reach by saying it is casus omissus and that the Law intended quae frequentius accidunt But it is no reason when the words of a Law do enough extend to an inconvenience seldom happening that they should not extend to it as well as if it happened more frequently because it happens but seldom For By that Reason if Lands be given to a man and the Heirs of his body his warranty should not barr the Issue in tayl within the meaning of the Statute because there his warranty must always fall upon the Issue in tayl but if given to him and the Heirs females of his body it should barr because it falls less frequently upon such Heir female which is absurd 7. The Statute further commands That the Donors Will be observ'd according to the form of his Gift expressed in his Charter which was that if the Donee died without Issue the Land should retorn to the Donor or his Heirs Therefore such alienation is forbid which hinders the retorn of it according to the Charter and consequently alienation with warranty is forbid I add That the makers of the Statute well understood the use of restraining the Donees warranty from hurting the Donor or the Issue in tayl but not possibly the use of restraining his Lineal or Collateral warranty which were terms then useless and unknown and therefore not in their prospect at all I shall now a little resume my former reasoning for more clearing of this point If immediately after the Statute de Donis Tenant in tayl had made a Feoffment in Fee with warranty which descended upon the Issue in tayl if it had been demanded Whether that warranty barr'd the Issue in a Formedon in the Descender it had been an unintelligible Answer to have said in that Age That it did not barr the Issue in tayl because it was a Lineal warranty for that had been to answer an Ignotum per multò ignotius than which nothing is more irrational But the clean Answer had been That the Donees power of Alienation was restrained in general by the Statute de Donis and therefore his Alienation by warranty and consequently his warranty could not barr the Issue in tayl In like manner if Tenant in tayl had been with the Remainder over soon after the Statute as then it might be and he had made a Feoffment in Fee with warranty and dyed and the warranty had descended upon him in the Remainder If it had been demanded then Whether that warranty did barr him in the Remainder It had been an Answer not to be understood to have said That it did barr him because it was a Collateral warranty But the right Answer had been That it was the warranty of the Ancestor descending upon the Heir and was not restrained within the Statute de Donis and therefore must bind him in the Remainder of Common Course So as the Doctrine of the binding of Lineal and Collateral warranties or their not binding is an Extraction out of mens brains and Speculations many scores of years after the Statute de Donis And if Littleton whose memory I much honour had taken that plain way in resolving his many excellent Cases in his Chapter of warranty of saying the warranty of the Ancestor doth not bind in this Case because it is restraind by the Statute of Glocester or the Statute de Donis and it doth bind in this Case as at the Common Law because not restrain'd by either Statute for when he wrote there were no other Statutes restraining warranties there is now a third 11 H. 7. his Doctrine of warranties had been more clear and satisfactory than now it is being intricated under the terms of Lineal and Collateral for that in truth is the genuine Resolution of most if not of all his Cases For no mans warranty doth bind or not directly and a priori because it is Lineal or Collateral for no Statute restrains any warranty under those terms from binding nor no Law institutes any warranty in those terms but those are restraints by consequent only from the restraints of warranties made by Statutes Objections On the other side was urg'd Sir Edward Coke's Opinion upon Sect. 712. of Littleton and his Comment upon the Statute de Donis which is but the quoting of his Littleton where his words are The warranty of the Donee in tayl Cok. Litt. Sect. 712. which is Collateral to the Donor or him in Remainder being heir to him doth bind them without any Assets For though the Alienation of the Donee after Issue doth not barr the Donor which was the Mischief provided for by the Act yet the warranty being Collateral doth barr both of them because the Act restrains not that warranty but it remaineth at Common Law These words may have a double meaning though the alienation of the Donee doth not barr the Donor which was the Mischief provided for by the Act yet the warranty being Collateral doth barr If the meaning be That the warranty is a thing Collateral to the Alienation against which provision was made and therefore the warranty was not restrained but the Alienation was By the same reason and in the same words it may be said The Alienation of the Donee doth not barr the Issue in tayl which was the Mischief provided for by the Act yet his warranty which is a thing Collateral to the Alienation doth barr because it remains at Common Law So as this Reason concludes equally That the Lineal warranty of Donee in tayl should barr his issue as that his Collateral warranty should barr the Donor Another meaning of his words may be having first asserted that the Collateral warranty of the Donee doth barr the Donor descending upon him and giving the reason of it he gives no other but this For though the Alienation of Donee in tayl doth not barr him yet the warranty being a Collateral warran y doth barr him which is idem per idem and the same as if he said The Collateral warranty of Donee in tayl doth barr the Donor and him in Remainder for the warranty being Collateral doth barr both of them which is no reason of his Assertion but the same Assertion over again And where it follows For the Act restraineth not that warranty viz. the Collateral no more doth the Act restrain the Lineal warranty in express terms or by any Periphrasis more than it doth the Collateral but restrains all power of Alienation in prejudice of the Issue or Donor and consequently the power of Aliening with warranty to the hurt of either 2. The second thing objected was Littleton's own Authority in the same Sect. 712. his words are He that demandeth Fee-tayl by Writ of Formedon in Descender shall not be barr'd by Lineal
then Vous saves bien que de ley cestuy que demand per Formedon in Reverter ne serra barr per le garranty cestuy à que les Tenements fuerunt done in tayl sil ne eyt per descent tout soit il heire à luy le quel Roy ad per descent ou non ne poiomus enquire And on this Case Sir Edward Coke makes an Observation That the King was not bound by a Collateral warranty for the Reversion of an Estate in tayl no more is any other Donor by that Case So as Sir William Herle's Iudgment who was then Chief Justice of the Common Pleas in three several years and several Cases was directly contrary to what Finchden 41 E. 3. said it was upon Report Besides the contrary of what my Brother Ellis urg'd from this Case may be thus inferr'd out of it This Case admits that the Statute restrains the warranty of the Donee from barring some Donor viz. a Donor stranger in blood as was said for it restrains Alienation without warranty against all Donors but the Statute did not restrain the Donees warranty from barring such a Donor for his warranty could never descend upon a stranger and the Statute did not restrain a thing which could not be Therefore ex concesso the Statute restrained the Donees warranty from barring the Donor of blood to the Donee 7 E. 3. 34. p. 44. 5. The fifth Objection was a Case 7 E. 3. that Tenant in tayl made a Feoffment in Fee and died issuless and the Feoffee rebutted the Donor by the warranty This Case rightly understood is not to the purpose for the Donor was not rebutted by the warranty of Tenant in tayl which is the present question but by the Donors own warranty The Case was That A. gave Land to W. and E. his wife Habendum praedictis W. E. haeredibus inter se legitime procreatis and warranted those Tenements to the said W. E. haeredibus eorum seu assignatis The Heir in tayl made a Feoffment in Fee and died leaving no Issue inheritable and the Donor was rebutted in his Formedon in Reverter by his own warranty having warranted to the Donee his Heirs and Assigns and the Feoffee claimed as Assignee And it was adjudg'd against the Donor after in the same year as appears 46 E. 3. f. 4. b. and there admitted good Law 46 E. 3. f. 4. b. But Sir Edward Coke denies this Case to be Law now saying That the warranty determined with the Estate tayl to which it was first annexed and doubtless it did so as to Voucher but whether as to Rebutter of the Donor the party rebutting having the Land though another Estate in it and deriving the warranty to himself as Assignee is not clear 6. A sixt Objection was made from a Case 27 E. 3. f. 83. of a Formedon in Reverter brought 27 E. 3. f. 83. pl. 42. and the Deed of Tenant in tayl Ancestor to the Demandant shewed forth but the Book mentions no warranty but it is like it was a Deed with warranty and the Plaintiff durst not demurr but traversed the Deed as any would avoid demurring upon the validity of an Ancestor's Deed when he was secure there was no such Deed of the Ancestor 7. 4 E. 3. f. 56. pl. 58. The last Objection was a Case 4 E. 3. f. 56. p. 58. where Tenant in tayl made a Feoffment with warranty and the warranty descended upon him in the Remainder in tayl which barr'd him which is a Case agreed as before For the Statute of Westminster the second provides not at all for hâ—m in Remainder but as to him Tenant in tayls warranty is left as at Common Law In 4 E. 3. a Formedon in the Descender was brought by the Issue in tayl and the Release of his elder Brother 4 E. 3. f. 28. pl. 57. with warranty was pleaded by the Tenant Stoner who gave the Rule in the Case Le statute restraynes le power del Issue in tayl to alien in prejudice of him in the Reversion by express words and à Fortiori the power of the Issue in tayl is restrain'd to alien in prejudice of the Issue in tayl Whereupon the Tenant was rul'd to answer and pleaded Assets descended Here it was admitted 10 E. 3. f. 14 pl. 53. the Issue in tayl could not alien with warranty in prejudice of the Reversioner And in 10 E. 3. soon after a Formedon in Reverter being brought and the warranty of Tenant in tayl pleaded in barr Scot alledg'd the restraint of the Statute as well for the Reversioner as for those claiming by descent in tayl The same Stoner demanding if the Ancestor's Deed was acknowledg'd and answered it was His Rule was That the Iudgment must be the same for the Reversioner as for the Issue in these words Ore est tout sur un Judgment which can have no other meaning considering Scot's words immediately before that the Law was the same for the Reversioner as for the Issue in tayl and Stoner's Opinion in the Case before to the same effect 4 E. 3. Objections from Modern Reports Moore f. 96. pl. 239. In Moore 's Reports this Case is A man seis'd of Land having Issue two Sons devis'd it to his youngest Son in tayl and the eldest Son died leaving Issue a Son the youngest aliened in Fee with warranty and died without Issue the Son of the eldest being within age If this Collateral warranty shall bind the Son within age without Assets notwithstanding the Statute of Westminster the second was the question And the Opinions of Plowden Bromley Solicitor Manwood and Lovelace Serjeants and of the Lord Dyer and Catlin Chief Iustice were clear That it is a Collateral warranty and without Assets did barr notwithstanding his Nonage for that his Entry was taken away And this was the Case of one Evans 12 13 of the Queen as it was reported to me This Opinion makes against me I confess but give it this Answer 1. This Case is not reported by Sir Francis Moore but reported to him non constat in what manner nor by whom 2. It was no Judicial Opinion for Plowden Bromley Solicitor two Serjeants Manwood and Lovelace are named for it as well as Dyer and Catlin who were then Chief Iustices of the several Courts which proves the Opinion not only extra-judicial but not given in any Court 3. The motive of their Opinion was because the warranty was Collateral which is no true reason of the binding or not of any warranty 4. An extra-judicial Opinion given in or out of Court is no more than the Prolatum or saying of him who gives it nor can be taken for his Opinion unless every thing spoken at pleasure must pass as the speakers Opinion 5. An Opinion given in Court if not necessary to the Judgment given of Record but that it might have been as well given if no such or a contrary Opinion had
no such Case in 38 E. 3. f. 26. but the Case intended is 38 E. 3. f. 21. and he quotes the folio truly in his Littleton But the Case is not That an Assignee may rebutt or have benefit of a warranty made to a man and his Heirs only but that a warranty being made to a man his Heirs and Assigns the Assignee of the Heir or the Assignee of the Assignee though neither be Assignee of the first Grantee of the warranty shall have like benefit of the warranty as if he were Assignee of the first Grantee which hath been often resolv'd in the old Books To the same purpose he cites a Case out of 7 E. 3. f. 34. 46 E. 3. f. 4. which doth but remember that of 7. as adjudg'd That the Assignee of Tenant in tayl might rebutt the Donor whence he infers as before that the Tenant in possession might rebutt without any right to the warranty But the Inference holds not from that Case The Case of 7 E. 3. was That Land was given in tayl and the Donor warranted the Land generally to the Donee his Heirs and Assigns the Donee made a Feoffment in Fee and died without Issue and the Donor impleading the Feoffee was rebutted because he had warranted the Land to the Donee his Heirs and Assigns and the Feoffee claimed as Assignee of the Donee and therefore rebutted not because he had a bare possession But this Judgment of 7 E. 3. Sir Edward Coke denies and perhaps justly to be Law now because the Estate tayl being determin'd to which the warranty was first annex'd the whole warranty determin'd with it But however the Case no way proves what it is alledg'd for in Lincoln Colledge Case That a man may rebutt without ever shewing the warranty extended to him for the Feoffee did in that Case shew it So in the Case 45 E. 3. f. 18. the Feme who rebutted shew'd she was Grantee of the warranty To this may be added That what is delivered as before in Lincoln Colledge Case is neither conducing to the Judgment given in that Case nor is it any Opinion of the Judges but is Sir Edward Coke's single Opinion emergently given as appears most clearly in the Case To conclude When the Feoffees were seis'd to the use of William Vescy for his life and after to the use of the Defendant his wife for her life and after to the use of the right Heirs of William Vescy And when by Operation of the Statute of 27 H. 8. the possession is brought to these uses the warranty made by William Vescy to the Feoffees and their Heirs is wholly destroy'd For if before the Statute the Feoffees had executed an Estate to William for life the Remainder to his wife for life the Remainder to his right Heirs The warranty had been extinguish'd by such Execution of Estate and releas'd in Law for it could be in none but in William and his Heirs who could not warrant to himself or themselves By Littleton Sect. 743. for his Heirs in such Case take not by Purchase but Limitation because the Freehold was in him with a Remainder over to his right Heirs and so hath as great an Estate in the Land as the Feoffees had and then the warranty is gone by Littleton Litt. Sect. 744. And now the Statute executes the possession in the same manner and the warranty is in none for the time present or future but extinct If the warranty had been to the Feoffees their Heirs and Assigns it might have been more colourably question'd Whether the mean Remainder were not an Assignee of the Feoffees and so to have benefit of the warranty but the warranty being to the Feoffees and their Heirs only no Estate remaining in them no Assignee can pretend to the warranty 2. William Vescy could by no possibility ever warrant this Estate to the Defendant during his life and where the warranty cannot possibly attach the Ancestor it shall never attach the Heir as by Littleton's Case If a man deviseth Lands in Fee to another with warranty for him and his Heirs his Heirs shall not be bound to the warranty because himself could never be And though in that Case the Estate to be warranted commenc'd after the death of the Warranter and here the Remainder to the wife is in being before his death yet the reason differs not for himself could no more warrant this by any possibility than that and his Heir might as equally warrant the Estate devis'd as this Next Justice Jones in Spirt and Bences Case cites a Case 7 Eliz. the same with this Resolution resolved in the Common Pleas That the mediate Remainder could not be warranted In this Case if the Feoffees before the Statute had either voluntarily or by coercion of the Chancery after the death of the first Cestuy que use for life executed the Estate of the mean Remainder such person in Remainder could have no benefit of the warranty being but an Assignee of the Feoffees because the warranty was only to them and their Heirs No more can the person in Remainder here whose Estate is executed by the Statute be warranted more than if such Estate had been executed by the Common Law There are another sort of persons who may rebutt and perhaps vouch who are neither Heirs nor formally Assignees to the Garrantee but have the Estate warranted dispositione instituto Legis which I conceive not to differ materially whether they have such Estate warranted by the Common Law or by Act of Parliament The first of this kind I shall name Ass p. 9. 35 is Tenant by the Courtesie who as was adjudg'd 35 Ass might rebutt the warranty made to his wives Ancestor yet was neither Heir nor formal Assignee to any to whom the warranty was granted nothing is said in the Book concerning his vouching but certainly the wives Heir may be receiv'd to defend his estate if impleaded by a stranger who may vouch according to the warranty or may rebutt as the Case of 45 E. 3. f. 18. is But this difference is observable also where such a Tenant rebutts it appears what claim he makes to the warranty and so the Inconveniences avoided which follow a Rebutter made upon no other reason than because he who rebutts is in possession of the Land warranted A second Tenant of this kind is the Lord of a Villain 22 Ass p. 37. and therefore the Case is 22 Ass That Tenant in Dower made a Lease for life to a Villain which in truth was a forfeiture for making a greater Estate of Freehold than she had power to make and bound her and her Heirs to warranty the Lord of the Villain entred upon the Land in her life time and before the warranty attach'd the Heir who had right to enter for the forfeiture the Mother died and the Heir entred upon the L. of the Villain who re-entred and the Heir brought an Assise The L. of the Villain
recovered in Damages 101 Debt 1. Debts by simple contracts were the first Debts that ever were and are more noble than Actions on the Case upon which only damages are recoverable 101 2. Actions in the debet detinet are actions of property which is not in an action on the Case ibid. 3. Actions upon Bond or Deed made in Wales Ireland Normandy c. where to be tryed 413 4. Wheresoever the Debt grew due yet the Debtor is indebted to the Creditor in any place where he is as long as the Debt is unsatisfied 92 5. It lies not for a Solicitor for his soliciting Fees but for an Attorney it well lies and there shall be no ley Gager in it 99 Declaration See Pleading 1. The Plaintiff must recover by his own strength and not by the Defendants weakness 8 58 60 2. When the Plaintiff makes it appear to the Court that the Defendants Title is not good yet if the Plaintiff do not make out a good Title for himself he shall never have Judgment 60 3. The form of a Declaration in London according to their custome 93 4. The King may vary his Declaration but it must be done the first Term 65 5. In a Quare Impedit the Plaintiff must in his Declaration alledge a presentation in himself or those from whom he claims 7 57 Demand See Request 1. A Demand of Rent is not requisite upon a Limitation because Non-payment avoids it 32 2. But where there is a condition there must be a demand before entry ibid. 3. Where there are several Rents the demands must be several 72 4. If more Rent is demanded than is payable the demand is void ibid. Devastavit See Executors  Devise Devisor Devisee 1. The Law doth not in Conveyances of Estates admit Estates to pass by Implication regularly but in Devises they are allowed with due restrictions 261 262 c. 2. If an Estate given by Implication in a Will be to the disinheriting of the Heir at Law it is not good if such Implication be only constructive and possible but not a necessary Implication 262 263 267 268 3. The necessary Implication is that the Devisee must have the thing Devised or none else can have it 262 263 4. A. deviseth his Goods to his wife and after her decease his Son and Heir shall have the House where they are this is a good Devise of the House to the wife by Implication because the Heir at Law is excluded by it and then no person can claim it but the wife by Implication of the Devise 263 264. 5. A. having issue Thomas and Mary devises to Thomas and his Heirs for ever and for want of Heirs of Thomas to Mary and her Heirs This is an Estate tayl in Thomas 269 270 6. My will is if it happen my Son George Mary and Katherine my Daughters to dye without issue of their bodies lawfully begotten then all the Freehold Lands I am now seized of shall remain and be to my Nephew A. B. The construction and meaning of these words quid operatur by them 260 261 262 263 264 c. 7. If Land is devised to H. and his heirs as long as B. hath heirs of his body the remainder over such latter Devise will be good not as a Remainder but as an Executory Devise 270 8. My son shall have my Land to him and his heirs so long as any heirs of the body of A. shall be living and for want of such heirs I devise it to B. here B. shall take by future and Executory Devise 270 9. A Devise to the son and heir in Fee being no other than what the Law gave him is void 271 10. A Devise that if the son and heir pay not all the Legacies then the Land shall go to the Legatories upon default of payment this shall vest in the Legatories by Executory Devise 271 11. A. had issue W. T. and R. and devises to T. and his heirs for ever and if T. died without issue living W. that then R. should have the Land this is a good Fee in T. and R had a good Estate in possibility by Executory Devise upon the dying of T. without issue 272 12. An Executory Devise cannot be upon an Estate tayl 273 13. I bequeath my son Thomas to my Brother R to be his Tutor during his minority here the Land follows the custody and the Trust is not assignable over to any person 178 179 c. 14. A Devise of the Land during the minority of the Son and for his maintenance and education until he come of age is no devising of the Guardianship 184 Discent 1. Children inherit their Ancestors Estates without limit in the right ascending Line and are not inherited by them 244 2. In the collateral Lines of Uncle and Nephew the Uncle as well inherits the Nephew as the Nephew the Uncle 244 3. In the case of Aliens nothing interrupts the common course of Discents but Defectus Nationis 268 Disclaimer 1. In a Quare Impedit upon the Bishops Disclaimer there is a Judgment with a Cessat Executio quousque c. Dismes See Tythes  Disseisor 1. A Disseisor Tenant in possession may Rebut the Demandant without shewing how he came to the possession which he then hath but he must shew how the warranty extended to him 385 386 Dispensation See Title Statutes 14. 1. The Pope could formerly and the Arch-bishop now can dispense for a plurality 20 23 2. How many Benefices a Bishop may retain by Dispensation 25 3. A Dispensation for years and good 24 4. A Dispensation after the Consecration of a Bishop comes too late to prevent the Voidance 20 5. If a man hath a Benefice with cure and accepts another without a Dispensation or Qualification the first becomes void and the Patron may present 131 132 6. No Dispensation can be had for marrying within the Levitical Degrees 214 216 239 7. A Dispensation obtained doth jus dare and makes the thing prohibited lawful to be done by him who hath it 333 336 8. Freedom from punishment is a consequent of a Dispensation but not its effect 333 9. What penal Laws the King may dispense with and what not 334 335 336 c. 10. Where the Suit is only the Kings for the breach of a penal Law and which is not to the damage of a third person the King may dispense 334 336 339 340 11. Where the Offence wrongs none but the King he may dispense with it 344 12. Where the Suit is the Kings only for the benefit of a third person there he cannot dispense 334 336 339 340 13. Offences not to be dispensed with 342 14. A Dispensation to make lawful the taking from a man any thing which he may lawfully defend from being taken or lawfully punish it if it is taken must be void 341 15. Dispensations void against Acts of Parliament for maintaining Native Artificers 344 16. Where the exercise of a Trade is generally prohibited
Heirs is expresly forbidden by the Statute de Donis 374 Right See Title Action 1. Where there can be presumed to be no remedy there is no right 38 Seisin 1. THe profits of all and every part of the Land are the Esplees of the Land and prove the Seisin of the whole Land 255 2. In an Entry sur Disseisin or other Action where Esplees are to be alledged the profits of a Mine will not serve 254 Spoliation 1. The Writ of Spoliation lyes for one Incumbent against the other where the Patrons right comes in question 24 Statute See Recognizance 1. A Recognizance taken before the Chief Justice of the Common Pleas in the nature of a Statute Staple 102 Statutes in general 1. Where an Act of Parliament is dubious long usage is a just medium to expound it by and the meaning of things spoken and written must be as hath been constantly received by common acceptation 169 2. But where usage is against the obvious meaning of an Act by the vulgar and common acceptation of words then it is rather an oppression then exposition of the Act 170 3. When an Act of Parliament alters the Common Law the meaning shall not be strained beyond the words except in cases of publick utility when the end of the Act appears to be larger than the words themselves 179 4. Secular Judges are most conizant in Acts of Parliament 213 5. When the words of a Statute extend not to an inconvenience rarely happening but doth to those which often happen it is good reason not to strain the words further than they will reach by saying it is casus omissus and that the Law intended quae frequentius accidunt 373 6. But where the words of a Law do extend to an inconvenience seldom happening there it shall extend to it as well as if it happens more frequently 373 7. An Act of Parliament which generally prohibits a thing upon a penalty which is popular or only given to the King may be inconvenient to diverse particular persons in respect of person place time c. For this cause the Law hath given power to the King to dispense with particular persons 347 8. Whatsoever is declared by an Act of Parliament to be against Law we must admit it so for by a Law viz. by Act of Parliament it is so declared 327 9. Where the Kings Grant is void in its creation a saving of that Grant in an Act of Parliament shall not aid it 332 10. How an Act of Parliament may be proved there hath been such an Act where the Roll is lost 162 163 404 405 407 11. An Act of Parliament in Ireland cannot effect a thing which could not be done without an Act of Parliament in England 289 12. Distinct Kingdoms cannot be united but by mutual Acts of Parliament 300 13. A repealed Act of Parliament is of no more effect than if it had never been made 325 Statutes 1. Merton cap. 4. The Statute of Merton which gave the owner of the Soyl power to approve Common did not consider whether the Lord was equally bound to pasture with his Tenants or not but it considered that the Lord should approve his own Ground so as the Commoners had sufficient 256 257 2. The inconveniences before the making of the Statute and the several remedies that were provided by it 257 1. Westm 1. 3 E. 1. The Antiquae Custumae upon Woolls Woolfells and Leather were granted to E. 1. by Parliament and therefore they are not by the Common Law 162 163 1. Westm 1. cap. 38. Attaints in Pleas real were granted by this Statute 146 1. Westm 2. cap. 24. The Quare Ejecit infra terminum is given by this Statute for the recovery of the Term against the Feoffee for an Ejectment lay not against him he coming to the Land by Feoffment 127 Statute of Glocester 1. Restrained warranties from binding as at Common Law 366 377 2. Before this Statute all Warranties which descended to the Heirs of the Warrantors were barrs to them except they were Warranties which commenced by Disseisin 366 3. The reason why the warranty of Tenant in Tayl with assets binds the right of the Estate Tayl is in no respect from the Statute de Donis but by the equity of the Statute of Glocester by which the Warranty of the Tenant per Curtesie barrs not the Heir for his Mothers Land if his Father leaves not assets to descend 365 4. If this Statute had not been made the lineal Warranty of Tenant in Tayl had no more bound the right of the Estate Tayl by the Statute de Donis with assets descending than it doth without assets ibid. Westm 2. De Donis 1. All Issues in Tayl within this Statute are to claim by the Writ purposely formed there for them which is a Formedon in the Descender 369 2. it intended not to restrain the alienation of any Estates but such as were Fee-simples at the Common Law 370 3. This Statute intended not to preserve the Estate for the Issue or the Reversion for the Donor absolutely against all Warranties but against the alienation with or without Warranty of the Donee and Tenant in Tayl only 369 4. Therefore if Tenant for life alien with Warranty which descended upon the Reversioner that was not restrained by the Statute but left at the Common Law 370 5. By this Statute the Warranty of Tenant in Tayl will not barr the Donor or his Heir of the Reversion ibid. 6. The Donee in Tayl is hereby expresly restrained from all power of alienation whereby the Lands entayled may not revert to the Donor for want of issue in Tayl 371 7. See a further Exposition upon this Statute from fol. 371 to 393 1. Wales Statute de Rutland 12 E. 1. after the Conquest of it by Edward the First was annext to England Jure proprietatis and received Laws from England as Ireland did Vide postea 9 17 18. and had a Chancery of their own and was not bound by the Law of England until 27 H. 8. 300 301 399 400 2. Although Wales became of the Dominion of England from that time yet the Courts of England had nothing to do with the Administration of Justice there in other manner than now they have with the Barbadoes Jersey c. all which are of the Dominions of England and may be bound by Laws made respectively for them by an English Parliament 400 See for a further Exposition 401 402 c. Acton Burnell 13 E. 1. 1. Recognizances for Debt were taken before this Statute by the Chancellor two Chief Justices and Justices Itinerants neither are they hindred by this Statute from taking them as they did before 102 28 E. 3. c. 2. concerning Wales 1. Tryals and Writs in England for Lands in Wales were only for Lordships Marchers and not for Lands within the Principality of Wales Vide ante 7. pòstea 17 18. for the Lordships and Marchers were of the Dominion of England and held of
Avowry is in liew of an Action and thereto privity is requisite for the same cause he cannot have an Action of Waste nor many other Actions there mentioned and the Authorities cited and so is Littleton himself expresly Litt. Sect. 580. Section 580. Where a man by grant to himself or by descent from his Ancestor hath a Rent-charge and might once lawfully distrain and Avow for such Rent if Arrear by due Attornment made to him or his Ancestor he may still do so whenever the Rent is behind unless by Law that power be some way lost 1. That power may be lost by extinguishment of the Rent by a perpetual union of the tenancy to the rent or rent to the tenancy or in other manner the Grantee having no Heir 2. It may be lost for a time by Suspension as by such union for a time and after restored again 3. It may be lost by a Grant of the Rent upon Condition 7 H. 6.3 Br. Extinguishment p. 17. and upon performance or breach of the Condition restored again but the power of distraining is not in this Case lost by any of these ways 4. It may be principally lost by a sufficient granting over and transferring the Rent to another which way comes nearest to the Case in question And therefore I shall agree the Case so much insisted on which is said to be agreed per Curiam Andrew Ognell's Case 4. Rep. f. 49. in Andrew Ognell's Case in the fourth Rep. That if a man be seized of a Rent-service or Rent-charge in Fee and grant it over by his Deed to another and his Heirs and the Tenant Attorn such Grantor is without remedy for the Rent arrear before his Grant for distrain he cannot and other remedy he hath not because all privity between him and the Tenant is destroyed by the Attornment to the Grantee and he hath no more right than any Stranger to come upon the Land after such transferring over of the Rent I shall likewise agree another Case That if such Grantee should regrant the same Rent back to the Grantor either in fee in tail or for life and the Tenant Attorn as he must to this regrant yet the first Grantor shall never be enabled to distrain for Arrears due to him before he granted over the Rent for now the privity between him and the Tenant begins but from the Attornment to the regrant the former being absolutely destroyed and the Tenant no more distrainable for the ancient Arrears than he was upon the creation of the Rent for Arrears incurred before till first attorn'd If the Case in question prove to be the same in effect with either of these Cases then the reason of Law for these Cases must sway and determine the Case in question And I conceive that there is no likeness or parity between the Case in question and either of those Cases either for the fact of the Cases or the reason of Law I shall therefore begin with comparing this Case with the first of those Cases 1. In the first of those Cases he that is seis'd of the Rent-charge doth intend to transferr his Estate in the Rent to the Grantee and it is accordingly actually transferr'd by the Tenants Attornment to the Grant 2. The Grantee by his Grant and Attornment to it becomes actually seis'd of the Rent and may enjoy the benefit of it by perception of the Rent 3. His Wife becomes dowable of it 4. It is subject to Statutes Recognizances and Debts enter'd into by the Grantee or due from him to the King 5. It is possible to descend to his Heir 6. It may be Arrear and he hath a possibility to distrain and avow for it 1. But in the Case in question the Conizors of the Fine did never intend to transfer their Estate in the Rent to the Conizee nor that any Attornment be made to him What a man intends to pass to another he intends to be without it himself at least for some time which is not in this Case 2. The Conizee never becomes actually seiz'd of the Rent and not only doth not but never can enjoy the perception of it for there is no moment of time wherein the Conizors themselves are not actually in seisin of it and consequently may distrain if it be in Arrear and the Conizee can never have actually seisin or possibility to have Attornment or distrain his seisin being but a meer fiction and an invented form of Conveyance only 3. The Conizee's Wife is never dowable of it 4. It is not subject to any Statutes Recognizances or Debts of the Conizee 5. It is never possible to descend to his Heir for it instantly vests in the Conizors 6. It can never be Arrear to the Conizee nor hath he ever a possibility to distrain for it To this purpose what is agreed in the Lord Cromwell's Case L. Cromwell's Case 2. Rep. f. 77. 2. Rep. is applicable Then it is to be consider'd what seisin Perkins had who was the Conizee of a Fine in that Case and he had but a Seisin for an instant and only to this purpose to make a Render for his Wife shall not be endowed nor the Land subject to his Statutes or Recognizances f. 77. Therefore that first Case cited out of the Report of Andrew Ognell's Case which I admit to be good Law hath no resemblance with the present Case in any circumstance or consequent but had the Fine been to a third persons use the consequents had been the same as in the Case cited out of Ognell's Case not as to the Conizee but as to that third person to whom the rent was intended To conclude then this first part 1. That whereof the Conizors were alwaies actually and separately seiz'd the same was never by them transferr'd to the seisin of another But of this Rent the Conizors were alwaies in actual seisin for there was no moment of time wherein they were not seis'd therefore this Rent was never transferr'd to the seisin of another nor could any other for any moment of time have a separated seisin thereof for what was mine at all times could be anothers at no time 2. It is an impossibility in Law that two men severally shall have several Rights and Fee-simples in possession in one and the same Land Dyer 28 H. 8. f. 12. a. p. 51. simul semel per Fitz-herbert in the Argument of Bokenhams Case and the same impossibility is so to have of a Rent Nor hath this relation to the learning of Instants in Digbie's Case Coke 1. Rep. and Fitz-williams in the sixth Report That an old Use may be revoked and a new rais'd in the same time and an old possession ended and a new begun this is usual in all transmutation of Estates and things also For in nature a new form introduc'd doth in the same moment destroy the old according to that Generatio unius est corruptio alterius but a separate possession can never be
England or into parts not of the Dominion of England nor follows it because Goods were intended to be sold that is as Merchandise in a place where good market was for them that they were intended to be sold at any other place where no profit could be made or not so much or where such Goods were perhaps prohibited Commodities therefore the words of the Act brought as Merchandise must mean that the Goods are for Merchandise at the place they are brought unto And Goods brought or imported any where as Merchandise or by way of Merchandise that is to be sold must necessarily have an Owner to set and receive the price for which they are sold unless a man will say That Goods can sell themselves and set and receive their own prises But wreck Goods imported or brought any where have no Owner to sell or prize them at the time of their importation and therefore are not brought by way of or as Merchandise to England or any where else Secondly Though in a loose sense inanimate things are said to bring things as in certain Seasons Rain to bring Grass in other Seasons some Winds to bring Snow and Frost some Storms to bring certain Fowl and Fish upon the Coasts Yet when the bringing in or importing or bringing out and exporting hath reference to Acts of Deliberation and Purpose as of Goods for sale which must be done by a rational Agent or when the thing brought requires a rational bringer or importer as be it a Message an Answer an Accompt or the like No man will say That things to be imported or brought by such deliberative Agents who must have purpose in what they do can be intended to be imported or brought by casual and insensible Agents but by Persons and Mediums and Instruments proper for the actions of reasonable Agents Therefore we say not That Goods drown'd or lost in passing a Ferry a great River an arm of the Sea are exported though carried to Sea but Goods exported are such as are convey'd to Sea in Ships or other Naval Carriage of mans Artifice and by like reason Goods imported must not be Goods imported by the Wind Water or such inanimate means but in Ships Vessels and other Conveyances used by reasonable Agents as Merchants Mariners Sailors c. whence I conclude That Goods or Merchandise imported within the meaning of the Act can only be such as are imported with deliberation and by reasonable Agents not casually and without reason and therefore wreck'd Goods are no Goods imported within the intention of the Act and consequently not to answer the Kings Duties for Goods as Goods cannot offend forfeit unlade pay Duties or the like but men whose Goods they are And wreck'd Goods have not Owners to do these Offices when the Act requires they should be done Therefore the Act intended not to charge the Duty upon such Goods Judgment for the Plaintiff The Chief Justice delivered the Opinion of the Court. Hill 23 24 Car. II. C. B. Rot. 695. Richard Crowley Plaintiff In a Replevin against Thomas Swindles William Whitehouse Roger Walton Defendants THE Plaintiff declares That the Defendants the Thirtieth of December 22 Car. 2. at Kings Norton in a place there called Hurley field took his Beasts four Cows and four Heifers and detain'd them to his damage of Forty pounds The Defendants defend the Force And as Bailiffs of Mary Ashenhurst Widow justifie the Caption and that the place contains and did contain when the Caption is suppos'd Twenty Acres of Land in Kings Norton aforesaid That long before the Caption one Thomas Greaves Esquire was seis'd of One hundred Acres of Land and of One hundred Acres of Pasture in Kings Norton aforesaid in the said County of Worcester whereof the Locus in quo is and at the time of the Caption and time out of mind was parcel in his demesne as of Fee containing Twenty Acres That he long before the Caption that is 18 die Decemb. 16 Car. 1. at Kings Norton aforesaid by his Indenture in writing under his Seal which the Defendants produce dated the said day and year in consideration of former Service done by Edmond Ashenhurst to him the said Thomas did grant by his said Writing to the said Edmond and Mary his Wife one yearly Rent of Twenty pounds issuing out of the said Twenty Acres with the Appurtenances by the name of all his Lands and Hereditaments scituate in Kings Norton aforesaid Habendum the said Rent to the said Edmond and Mary and their Assigns after the decease of one Anne Greaves and Thomas Greaves Vncle to the Grantor or either of them which first should happen during the lives of Edmond and Mary and the longer liver of them at the Feasts of the Annunciation of the blessed Virgin Mary and St. Michael the Arch angel by equal portions The first payment to begin at such of the said Feasts as should first happen next after the decease of the said Anne Greaves and Thomas the Vncle or either of them That if the Rent were behind in part or in all it should be lawful for the Grantees and the Survivor of them to enter into all and singular the Lands in King's Norton of the Grantor and to distrain and detain until payment By vertue whereof the said Edmond and Mary became seis'd of the said Rent in their Demesne as of Free hold during their Lives as aforesaid The Defendants say further in Fact That after that is to say the last day of February in the Two and twentieth year of the now King the said Anne Greaves and Thomas the Vncle and Edmond the Husband died at King's Norton That for Twenty pounds of the said Rent for one whole year ending at the Feast of Saint Michael the Arch-Angel in the Two and twentieth year of the King unpaid to the said Mary the Defendants justifie the Caption as in Lands subject to the said Mary's Distress as her Bailiffs And averr her to be living at King's Norton aforesaid The Plaintiff demands Oyer of the Writing Indented by which it appears That the said Annuity was granted to Edmond and Mary and their Assigns in manner set forth by the Defendants in their Conuzance But with this variance in the Deed And if the aforesaid yearly Rents of Ten pounds and of Twenty pounds shall be unpaid at any the daies aforesaid in part or in all That it shall be lawful for the said Edmond and Mary at any time during the joynt natural Lives of the said Anne Greaves and Thomas Greaves the Uncle if the said Edmond and Mary or either of them should so long live and as often as the said Rents of Twenty pounds or any parcel should be behind to enter into all the said Thomas Greaves the Grantors Lands in King's Norton aforesaid and to Distrain Vpon Oyer of which Indenture the Plaintiff demurrs upon the Conuzance Two Exceptions have been taken to this Conuzance made by the Defendants The first for that
the Statute If the Father under Age should make such a Devise it were absolutely void for the same syllables shall never give the Custody of the Heir by the Father under Age which do not give it by the Father which is of Age. But in both Cases a Devise of the Custody is effectual and there is no reason that the Custody devis'd shall operate into a Lease when a Lease devis'd shall not operate into a Custody which it cannot do If a man devise the Custody of his Heir apparent to J. S. and mentions no time either during his Minority or for any other time this is a good devise of the Custody within the Act if the Heir be under Fourteen at the death of the Father because by the Devise the Modus habendi Custodiam is chang'd only as to the person and left the same it was as to the time But if above Fourteen at the Fathers death then the Devise of the Custody is meerly void for the incertainty For the Act did not intend every Heir should be in Custody until One and twenty Non ut tamdiu sed ne diutius therefore he shall be in this Custody but so long as the Father appoints and if he appoint no time there is no Custody If a man have power to make Leases for any term of years not exceeding One hundred and he demises Land but expresseth no time shall this therefore be a Lease for One hundred years There is no Reason it should be a Lease for the greatest term he could grant more than for the least term he could grant or indeed for any other term under One hundred Therefore it is void for incertainty and the Case is the same for the Custody For if the Father might intend as well any time under that no Reason will enforce that he only intended that And to say he intended the Custody for some time therefore since no other can be it must be for that will hold as well in the Lease and in all other Cases of incertainty If a man devises Ten pounds to his Servant but having many none shall have it for the incertainty It may be demanded If the Father appoint the Custody until the Age of One and twenty and the Guardian dye what shall become of this Custody It determines with the death of the Guardian and is a Condition in Law and the same as if a man grant to a man the Stewardship of his Mannor for Ten years or to be his Bailiff It is implyed by way of Condition if he live so long A Copyholder in Fee surrenders to the Lord Dyer 8 Eliz. f. 251. pl. 90. ad intentionem that the Lord should grant it back to him for term of life the Remainder to his Wife till his Son came to One and twenty Remainder to the Son in tayl Remainder to the Wife for life The Husband died The Lord at his Court granted the Land to the Wife till the Sons full age The Remainders ut supra The Wife marries and dies Intestate The Husband held in the Land The Wives Administrator and to whom the Lord had granted the Land during the Minority of the Son enters upon the Husband This Entry was adjudg'd unlawful because it was the Wives term but otherwise it had been if the Wife had been but a Guardian or next Friend of this Land The like Case is in Hobart Balder and Blackburn f. 285. 17 Jac. If it be insisted That this new Guardian hath the Custody not only of the Lands descended or left by the Father but of all Lands and Goods any way acquir'd or purchas'd by the Infant which the Guardian in Soccage had not That alters not the Case for if he were Guardian in Soccage without that particular power given by the Statute he is equally Guardian in Soccage with it and is no more than if the Statute had appointed Guardian in Soccage to have care of all the Estate of the Infant however he came by it Besides that proves directly that this new Guardian doth not derive his interest from the Father but from the Law for the Father could never give him power or interest of or in that which was never his The Court was divided viz. The Chief Justice and Justice Wylde for the Plaintiff Justice Tyrrell and Justice Archer for the Defendant Hill 19 20 Car. II. C. B. Rot. 506. Holden versus Smallbrooke IN Trover and Conversion and not Guilty pleaded Robinson the Iury gave a Special Verdict to this Effect That Doctor Mallory Prebendary of the Prebend of Wolvey founded in the Cathedral of Litchfield seis'd of the said Prebend and one Messuage one Barn and the Glebe appertaining thereto and of the Tithes of Wolvey in right of his Prebend 22 April 13 Car. 2. by Indenture demised to Giles Astly and his Assigns the said Prebend together with all Houses Barns Tenements Glebe Lands and Tithes thereto belonging for three Lives under the ancient Rent of Five pounds ten shillings Astly being one of the Lives died seis'd of the Premisses at whose death one Taverner was Tenant for one year not ended of the Demise of Astly of the Messuage Barn and Glebe Lands and in possession of them whereupon the Plaintiff entred into the Messuage and Glebe and was in the possession of the same and of the Tithes as Occupant And afterwards Frances Astly the Relict of the said Giles Astly enters upon the Messuage and claims the same as Occupant in haec verba Frances Astly Widow of Giles Astly enters upon the House and claims the same with the Glebe and Tithe as Occupant Taverner attorns to Frances Astly and afterwards grants and assigns all his Estate in the Premisses to the Plaintiff afterwards Conquest the Husband of Frances Astly took one Sheaf of Corn in the name of all the Tithes and afterwards demised the Tithes to the Defendant The Tithes are set forth and the Defendant took them whereupon the Plaintiff brought this Action Before I deliver my Opinion concerning the particular Questions before open'd arising upon this Record I shall say somewhat shortly of Natural Occupancy and Civil Occupancy First opening what I mean by those terms then briefly shewing their difference as far only as is material to the Questions now before me I call Natural Occupancy the possession either of such natural things as are immoveable fixt and permanent as Land a Pool River Sea for a Sea is capable of Occupancy and Dominion naturally as well as Land and hath naturally been in Occupancy as is demonstrated in Mr. Selden's Mare Clausum at large which lye unpossess'd and in which no other hath prior right Or of things natural and moveable either animate as a Horse a Cow a Sheep and the like without number or Inanimate as Gold precious Stones Grain Hony Fruit Flesh and the like numberless also wherein no man until the possession thereof by Occupancy had any other right than every man had which is
out of the former Premisses is That the Freehold qua Freehold is not the thing whereof there is an Occupancy for the Freehold is not a natural thing but hath its essence by the positive Municipal Law of the Kingdome it cannot abstract from the Land in this matter of Occupancy he either entred into or possessed The Freehold is an immediate consequent of the possession for when a man hath gotten the possession of Land that was void of a Proprietor or other thing capable of Occupancy the Law forthwith doth cast the Freehold upon the Possessor to make a sufficient Tenant to the Precipe Therefore As to the first Question Whether Holden the Plaintiffs Entry Quest 1 upon the Lessee Taverner's possession into the House Glebe and Barn the First of March 1666. and openly saying I enter and take possession of this House Glebe and Barn and the Ground thereto belonging and the Tithes of Woolney in my own Name and Right as Occupant upon a Lease made to Giles Astly and his Assigns for three Lives by Dr. Mallory Prebend of Woolney did make him Occupant of the House Land and Tithe or either of them the Lessee Taverner not having made any Claim as Occupant to any of them I hold clearly this Entry and Claim did not make Holden Occupant of the House Land or Tithe or of any of them To every Occupant of Land or other thing capable of Occupancy two things are requisite 1. Possession of the Land which was void and without Owner 2. The having of the Freehold to avoid an obeyance which is had as well where the possession is not void as where it is The first that is the possession is acquired by the party and his Act but the Freehold is acquir'd by the Act of Law which casts it upon the possession assoon as there is a Possessor or where it finds a Possessor when the Freehold is in none 1. This Claim and Entry was in Order to gain the first possession of the Land which was void but that was impossible to be had for the Lessee Taverner had the possession before he held it then therefore the Claim was to no end 2. Secondly A man cannot be an Occupant but of a void Possession or of a Possession which himself hath but here was no void Possession when Holden enter'd and claimed as Occupant for the Lessee was in lawful possession of the House and Barn and Land at the time of the entry and claim 3. Thirdly If this Entry and Claim should make Holden a legal Occupant which cannot be without gaining the possession then there would be two plenary legal possessors of the same thing at the same time Holden by his Entry and Claim and Taverner the Lessee by virtue of his lease but that is impossible there should be two plenary possessors of the same thing at the same time Therefore Holden can be no Occupant by such Entry and Claim Skelton Hay 17 Jac. Cr. 554. b. 4. This very Case in every point hath been resolv'd in the Case of Skelton and Hay 17 Jac. where upon an Ejectment brought a Special Verdict found That the Bishop of Worcester made a lease to Sir William Whorehood of certain land for his own and the lives of two of his Sons Sir William did let the land to John Mallett at will rendring Rent and dyed Mallett continued the possession not claiming as Occupant one of Sir William's Sons entred as Occupant and made a lease to the Plaintiff in the Action It was adjudg'd that Mallett the Defendant being in possession the Law cast the Freehold upon him without Claim and had he disclaim'd to hold as Occupant Chamberlayn Ewes C. Rolls 2. part f. 151. Lett. E. keeping the possession he must have been the Occupant for where one entred to the use of another he that entred was adjudg'd the Occupant Which Case proves one may be an Occupant against and besides his own intention and therefore a Claim to denote his intention 5. To be an Occupant is not necessary and Tenant for years as well as at will is Occupant by that Case Besides claiming to be Occupant is to claim to be in possession or to claim the Freehold or both but the Law binds not a man to claim that which he hath already and therefore he that hath possession and doth occupy the land is not to claim possession or to be Occupant of it no more is he to claim a Freehold which he already hath for the Law hath cast it where it finds the possession so having both possession and Freehold the Law binds him not to claim what he hath 6. Claim is never to make a Right which a man hath not but to preserve that which he hath from being lost As Claim to avoid a Descent whereby a man had lost his right to enter so a man makes no Claim to be remitted when by act of law he is in his Remitter As to the second Question Whether Frances Astly the Relict Quest 2 of Giles entring the Five and twentieth of March 1667. upon the Lessee Taverner's possession and claiming the House Glebe and Tithe as Occupant and the Lessee Taverner attorning to her makes her an Occupant of the House Land or Tithe The Question hath nothing in it differing from the former but only the Attornment and it is clear the Attornment of Taverner the Lessee doth not disclaim his possession but affirms it for Attornment is the Act of a Tenant by reason of his being in possession Besides admitting the Tenant a perfect Occupant he might continuing so attorn to whom he pleased as well as Astly might have done in his life time yet still continue the Estate that was in him It follows then that Taverner was the undoubted Occupant after Astly's death of the House Land and Barn but whether he had the Tithe of Woolney by such his Occupancy whereof Astly died seis'd is the difficult Question Another Question will arise when Taverner the Lessee who had by lease the House Barn and Land and so found and was Occupant certainly of those when afterwards Taverner the Lessee 12 June 1667 concessit assignavit totum statum suum de in praemissis to Holden the Plaintiff and gave him Livery and Seifin thereupon what shall be understood to pass by the word praemissis if only what was leas'd and his Estate therein as Occupant and likewise the Tithe if the Tithe accrued to him by reason of being Occupant of the land For if he were Occupant of the Tithe by Act in Law by being Occupant of the land it follows not that if he past all his Estate to Holden in the House and Land and gave him Livery that therefore he past his Estate in the Tithe nor is such passing found to be by Deed. To clear the way then towards resolving the principal Question 1. At the time of Giles Astly's death the Tithes and the House and Lands were sever'd in
Interest for the Lessee Taverner had a Lease of the House Glebe and Barn and the Tithe continued in Astly 2. This severance was equally the same as if the Tithe had been demis'd to Taverner and the House and Land had remained still in Astly's possession 3. Though the Freehold of both remained still in Astly at his death notwithstanding the divided Interest in the Land and Tithe yet the Freehold being a thing quatenus Freehold not capable in it self of Occupancy nor no natural but a legal thing which the Law casts upon him that is Occupant that will not concern the Questions either who was Occupant or of what he was Occupant Cok. Litt. f. 41. b. 4. I take it for clear That a naked Tithe granted by it self pur auter vie and the Grantee dying without assignment living Cestuy que vie is not capable of Occupancy more than a Rent a Common in gross and Advowson in gross a Fair or the like are it being a thing lying in Grant equally as those others do Coke's Littleton There can be no Occupant of any thing which lyeth in Grant and cannot pass without Deed. I cited the place at full before with other Authorities against Occupancy of a Rent 5. If a man dye seis'd of Land which he holds pur auter vie and also dies seis'd of Rent held pur auter vie or of an Advowson or Common in gross held by distinct Grants pur auter vie and the same Cestuy que vie or the several Cestuy vies for that will not differ the Case living Though the Grantee died seis'd of a Freehold in these several things I conceive that he which enters into the Land first after his death will be Occupant of the Land which was capable of Occupancy but neither of the Tithe Advowson nor Common which are not capable of Occupancy and have no more coherence with dependence upon nor relation to the Land than if they had been granted pur auter vie to another who had happen'd to dye in like manner as the Grantee of the Land did And that which hath intricated men in this matter hath been a Conception taken up as if the Occupant had for his object in being Occupant the Freehold which the Tenant died seis'd of which is a mistake for the subject and object of the Occupant are only such things which are capable of Occupancy not things which are not and not the Freehold at all into which he neither doth nor can enter but the Law casts it immediately upon him that hath made himself Occupant of the Land or other real thing whereof he is Occupant that there may be a Tenant to the Precipe But as was well observed by my Brother Wilmott No Precipe lies for setting out Tithe at Common Law and I doubt not by the Statute of 32 H. 8. c. 7. though Sir Edward Coke in his Litt. f. 159. a. seems to be of opinion Coke Litt. 159. a. that a man may at his Election have remedy for witholding Tithe after that Statute by Action or in the Ecclesiastical Court by that Statute doubtless he hath for the title of Tithe as for title of Land or for the taking of them away but not perhaps for not setting them out 6. When a Severance therefore is once made of the Land and Tithe it is as much severance of them though the Tithe remain in Astly's possession as if he had leas'd the Land to Taverner and the Tithe to another if then Taverner becoming Occupant of the Land should have had nothing in the Tithe leas'd to another as the Land was to him no more shall he have the Tithe remaining in Astly himself at his death Still we must remember the ground insisted on That no Occupancy begins with the Freehold but begins by possessing the Land or other real thing which was void and ownerless and that by Act of Law the Freehold is cast upon the Possessor either entring where the possession was void or being in possession when Tenant pur auter vie died either as Lessee for years or at will to Tenant pur auter vie for the Law equally casts the Freehold upon him as was resolved in Chamberleyne and Eures Case reported by Serjeant Rolls and others Second Part. f. 151. Letter E. and in Castle and Dods Case 5 Jac. Cr. f. 200. Therefore after such Severance made by the Tenant pur auter vie the Land and Tithe are as distinct and sunder'd from each other as if Tenant pur auter vie had held them by distinct Grants or leas'd them to distinct persons In the next place I shall agree That the Occupant of a House shall have the Estovers or way pertaining to such House the Occupant of the Demesne of a Mannor or of other Land shall have the Advowson appendant or Villain regardant to the Mannor or Common belonging to the Land and the Services of the Mannor not sever'd from the Demesne before the occupancy For a Possessor of a House Land Demesne of a Mannor as Occupant doth not by such his possession sever any thing belonging to the Land House or Demesne more than the Possessor by any other title than occupancy doth and if they be not sever'd it follows they must remain as before to the Possessor of that to which they pertain So if a Mannor being an intire thing consisting of Demesnes and Services which are parts constituent of the Mannor the possessing and occupancy of the Demesns which is one part can make no severance of the Services from the intire and therefore the Occupant hath all And these things though primarily there can be no occupancy of them being things that lye in Grant and pass not without Deed yet when they are adjuncts or pertaining to Land they do pass by Livery only without Deed. Coke Litt. f. 121. 8. Sect. 183. Whatsoever passeth by Livery of Seisin either in Deed or in Law may pass without Deed and not only the Rent and Services parcel of the Mannor shall with the Demesns as the more principal and worthy pass by Livery without Deed but all things regardant appendant or appurtenant to the Mannor as Incidents or Adjuncts to the same shall together with the Mannor pass without Deed without saying cum pertinentiis And if they pass by Livery which must be of the Land they must likewise pass by any lawful Entry made into the Land and such the Entry of the Occupant is But as by occupancy of the demesn Lands of a Mannor the Services are not sever'd so if they be sever'd at the time when the occupancy happens that shall never of it self unite them again Now in the Case before us The Tithe is neither appendant or appurtenant or any sort of Adjunct to the Glebe or House nor are they to the Tithe nor will a lease and livery of the Glebe simply with the appurtenances pass the Tithe at all nor a Grant of the Tithe pass the Glebe nor are either
arrear and impounded them And Traverseth the Conversion and taking in other manner Vpon Demurrer to this Plea all the Court held the Plea to be bad and gave Iudgment for the Plaintiff 1. Because the Rent was determined by the death of the Grantee because no Occupant could be of it 2. Because the Feme was no Assignee by her taking of Administration 3. None can make title to a Rent to have it against the terr Tenant unless he be party to the Deed or make sufficient title under it Moore 664. p. 907. Salter vers Boteler The same Case is in Moore reported to be so adjudg'd because the Rent was determined by the death of the Grantee and Popham said That if a Rent be granted pur auter vie the Remainder over to another and the Grantee dies living Cestuy que vie the Remainder shall commence forthwith because the Rent for life determined by the death of the Grantee which last Case is good Law For the particular Estate in the Rent must determine when none could have it and when the particular Estate was determined the Remainder took place And as the Law is of a Rent so must it be of any thing which lies in Grant as a several Tithe doth whereof there can be no Occupant when it is granted pur auter vie and the Grantee dies in the life of Cestuy que vie 20 H. 6. f. 7 8. This is further cleared by a Case in 20 H. 6. A man purchas'd of an Abbot certain Land in Fee-farm rendring to the Abbot and his Successors Twenty pounds yearly Rent If all the Monks dye this Rent determined because there is none that can have it It lies not in Tenure and therefore cannot Escheat and though new Monks may be made it must be by a new Creation wholly In vacancy of a Parson or Vicar the Ordinary ex officio shall cite to pay the Tithes Fitz. N. Br. Consultation Lett. G. This Case agrees exactly with the Grant of a Rent or other thing which lies in Grant pur auter vie the Grantee dying the Rent determines though it were a good Grant and enjoyed at first yet when after none can have it it is determined So was the Rent to the Abbot and his Successors a good Rent and well enjoyed But when after all the Covent died so as none could have the Rent for the Body Politique was destroyed the Rent determined absolutely By this I hold it clear That if a man demise Land to another and his Heirs habendum pur auter vie or grant a Rent to a man and his Heirs pur auter vie though the Heir shall have this Land or Rent after the Grantees death yet he hath it not as a special Occupant as the common expression is for if so such Heir were an Occupant which he is not for a special Occupant must be an Occupant but he takes it as Heir not of a Fee but of a descendible Freehold and not by way of limitation as a Purchase to the Heir but by descent though some Opinions are that the Heir takes it by special limitation as when an Estate for life is made the Remainder to the right Heirs of J. S. the Heir takes it by special limitation if there be an Heir when the particular Estate ends But I see not how when Land or Rent is granted to a man and his Heirs pur auter vie the Heir should take by special limitation after the Grantees death when the whole Estate was so in the first Grantee that he might assign it to whom he pleas'd and so he who was intended to take by special limitation after the Grantees death should take nothing at all But to inherit as Heir a descendible Freehold when the Father or other Ancestor had not dispos'd it agrees with the ancient Law as appears by Bracton which obiter in Argument is denied in Walsinghams Case Si autem fiat donatio sic Bract. l. 2. de acquirendo rerum dominico c. 9. Ad vitam donatoris donatorio haeredibus suis si donatorius praemoriatur haeredes ei succedent tenendum ad vitam donatoris per Assisam mortis Antecessoris recuperabunt qui obiit ut de feodo Here it is evident That Land granted to a man and his Heirs for the life of the Grantor the Grantee dying in the life of the Grantor the Heirs of the Grantee were to succeed him and should recover by a Writ of Mordancester in case of Abatement which infallibly proves the Heir takes by descent who died seis'd as of a Fee but not died seis'd in Fee 1. Hence I conclude That if a man dye seis'd pur auter vie of a Rent a Tithe an Advowson in gross Common in gross or other thing whereof there can be no Occupancy either directly or by consequence as adjuncts of something else by the death of the Grantee in all these Cases the Grant is determined and the Interest stands as before any Grant made 2. If any man dye seis'd of Land pur auter vie as also of many of these things in gross pur auter vie by distinct Grant from the Land The Occupant of the Land shall have none of these things but they are in the same state and the Grants determine as if the Grantee had died seis'd of nothing whereof there could be any occupancy But I must remember you that in this last part of my Discourse where I said That if a Rent a Tithe a Common or Advowson in gross or the like lying in Grant were granted pur auter vie and the Grantee died living Cestuy que vie that these Grants were determin'd my meaning was and is where such Rent Tithe or other things are singly granted and not where they are granted together with Land or any other thing out of which Rent may issue with Reservation of a Rent out of the whole For although a Rent cannot issue out of things which lye in Grant as not distrainable in their nature yet being granted together with Land with reservation of a Rent though the Rent issue properly and only out of the Land and not out of those things lying in Grant as appears by Littleton yet those are part of the Consideration for payment of the Rent Cok. Litt. f. 142. a. 144. a. as well as the Land is In such case when the Rent remains still payable by the Occupant it is unreasonable that the Grant should determine as to the Tithe or as to any other thing lying in Grant which passed with the Land as part of the Consideration for which the Rent was payable and remain to the Lessor as before they were granted for so the Lessor gives a Consideration for paying a Rent which he enjoys and hath notwithstanding the Consideration given back again And this is the present Case being stript and singled from such things as intricate it That Doctor Mallory Prebend of the Prebendary of Woolney consisting of Glebe-land
a House Barns and Tithe of Woolney and thereof seis'd in the right of his Prebendary makes a Lease to Astly of the Prebend una cum the Glebe House Barn and Tithe for Three Lives rendring the accustomed and ancient Rent of Five pounds Twelve shillings Astly demiseth to Taverner the House Glebe and Barn for a year reserving Twenty shillings and dies the Cestuy que vies living As I concluded before Taverner is Occupant of the House Barn and Glebe-land and consequently lyable to pay the whole Rent being Five pounds twelve shillings yearly though the Land House and Barn be found of the yearly value of Twenty shillings only but because the Rent cannot issue out of Tithes or things that lye in Grant it issues only out of the House Barn and Land which may be distrain'd on 2. If Taverner being Occupant of the Land shall not have the Tithes which remain'd in Astly according to his Lease for three Lives at the time of his death and whereof by their nature there can be no direct Occupancy It follows that the Lease made by Doctor Mallory is determin'd as to the Tithe for no other can have them yet continues in force as to the Land and House and all the Rent reserv'd which seems strange the Land and Tithe being granted by the same Demise for three Lives which still continue yet the Lease to be determined as to part 3. Though the Rent issue not out of the Tithe yet the Tithe was as well a Consideration for the payment of the Rent as the Land and Houses were and it seems unreasonable that the Lessor Doctor Mallory should by act in Law have back the greatest Consideration granted for payment of the Rent which is the Tithe and yet have the Rent wholly out of the Land by act in Law too which cannot yield it 4. Though Doctor Mallory could not have reserv'd a Rent out of the Tithe only to bind his Successor upon a Lease for Lives more than out of a Fair though it were as the ancient Rent and had been usually answered for the Fair as is resolv'd in Jewel Bishop of Sarum's Case Jewell's Case 5 Rep. Yet in this Case where the Tithe together with Land out of which Rent could issue was demis'd for the accustomed Rent the Successor could never avoid the Lease either in the whole or as to the Tithe only 13 Eliz. c. 10. This seems clear by the Statute of 13 Eliz. cap. 10. which saith All Leases made by any Spiritual or Ecclesiastical persons having any Lands Tenements Tithes or Hereditaments parcel of the Possessions of any Spiritual Promotion other than for One and twenty years or three Lives whereupon the accustomed yearly Rent or more shall be reserv'd shall be void Cokes Litt. f. 142. a. f. 144. a. Whence it is apparent this Statute intended that Leases in some sense might be made of Tithes for One and twenty years or Three Lives and an ancient Rent reserv'd but of a bare Tithe only a Rent could not be reserv'd according to Jewell's Case for neither Distress nor Assise can be of such Rent though an Assise may be de Portione Decimarum as is clear by the Lord Dyer 7 E. 6. and the difference rightly stated Therefore a Lease of Tithe and Land out of which a Rent may issue and the accustomed Rent may be reserved must be good within the intention of the Statute or Tithe could in no sense be demis'd 5. Taverner the Lessee being Occupant here by his possession becomes subject to the payment of the Rent to Waste to Forfeiture Conditions and all things that Astly the Lessee or his Assignee if he had made any had been subject to Also Coke's Litt. 41. He must claim by a que Estate from Astly he must averr the Life of Cestuy que vie so as he becomes to all intents an Assignee in Law of the first Lessee 6. Without question the Occupant being chargeable with the Rent shall by Equity have the Tithe which was the principal Consideration for payment of the Rent when no man can have the benefit of the Tithe but the Lessor Doctor Mallory who gave it as a Consideration for the Rent which he must still have Therefore I conceive the Reason of Law here ought necessarily to follow the Reason of Equity and that the Occupant shall have the Tithe not as being immediate Occupant of the Tithe whereof no occupancy can be but when by his possession of the Land he becomes Occupant and the Law casts the Freehold upon him he likewise thereby becomes an Assignee in Law of Astly's Lease and Interest and consequently of the Tithe An ancient Rent reserv'd within the Statute of 1. or 13. of the Queen upon a Lease of One and twenty years or Three Lives is by express intention of that Statute a Rent for publique use and maintenance of Hospitality by Church-men as is resolv'd in Elsemere's Case Elsmers C. 5. Rep. the 5. Rep. and therefore if the Lessee provide not an Assignee to answer the Rent to the Successors of the Lessor for the ends of that Law the Law will do it for him and none fitter to be so than the Occupant in case of a Lease pur auter vie as this is And if the Occupant being Assignee hath pass'd all his Estate and Interest to the Plaintiff hath good cause of Action for the Tithe converted by the Defendant Pasch 22 Car. II. Judgment for the Defendant Three Justices against the Chief Justice Trin. 20 Car. II. C. B. Rot. 2043. Harrison versus Doctor Burwell In a Prohibition for his Marriage with Jane the Relict of Bartholomew Abbot his Great Uncle The Questions are Quest 1 WHether the marriage of Thomas Harrison the Plaintiff with Jane his now wife being the Relict of Bartholomew Abbot his great Vncle that is his Grand-fathers Brother by the Mothers side be a lawful marriage within the Act of 32 H. 8. cap. 38 Quest 2 Admitting it to be a lawful marriage within the meaning of that Act Whether the Kings Temporal Courts are properly Judges of it because the unlawfulness or lawfulness of it by that Act doth depend upon its being a marriage within or without the Levitical Degrees For if within those Degrees it is not a lawful marriage by that Act. And the right knowledge of marriages within or without those Degrees must arise from the right knowledge ot the Scriptures of the Old Testament specially the Interpretation of which hath been and regularly is of Ecclesiastick Conizance and not of Lay or Temporal Conizance in regard of the Language wherein it was writ and the receiv'd Interpretations concerning it in all succession of time Quest 3 Admitting the Kings Temporal Courts have by that Act of 32. or any other special Conizance of the Levitical Degrees and of marriages within them And though this be no marriage within the Levitical Degrees it being articled in general to be an Incestuous marriage
could not be granted but to one because its nature was confin'd to one A man cannot have an Assise of Common in his own Soyl nor an Admensuratio pasturae and a Common being a thing that lies in grant he cannot grant it to himself and no other can grant it in his Soyl to him So as I conclude one or more may have Solam separalem Communiam from other Commoners but not from the Lord who is no Commoner I cannot discern the use of this kind of Prescription for the Tenants for if it be to hinder the Lord from approving the Common I think they are mistaken The Statute of Merton gives the Owner of the Soyl power to approve Common Grounds appendant Cok. 2. Instit f. 86.475 West 2. c. 46. or appurtenant by Prescription as this is if sufficient Pasture be left for the Commoners without considering whether the Commoners had the Common solely to themselves excluding the Lord or otherwise For as to Approvement which the Statute provided for the Lord was equally bound pasturing with his Tenants or not pasturing with them Therefore the Statute consider'd not that but that the Lord should approve his own ground so the Commoners had sufficient whatever the nature of the Common were To prescribe to have in such a part of the Lord's Lands Communiam for their Cattel excludes not the Lord. To prescribe to have their Pasturam Communem for their Cattel is the same thing and excludes not the Lord. To prescribe to have solam separalem Communiam is naught by Admittance Why then to prescribe to have solam separalem Pasturam Communiam which is agreed to be the same with Communiam is naught also Now to express another way that they have solam separalem Pasturam Common to them or wherein they Common changeth not the matter in the meaning but order of the words The Statute of Merton is cap. 4. 1. The Lords could not make their profit de Vastis Boscis Pasturis Communibus when the Tenants had sufficientem pasturam quantum pertinet ad tenementa sua 2. Si coram Justiciariis recognitum sit quod tantum pasturae habeant quantum sufficit c. 3. Et quod habeant liberum ingressum egressum de tenementis suis usque ad pasturam suam tunc recedant quiet 4. And that then the Lords faciant commodum suum de terris vastis pasturis 5. Et si per Assisam recognitum fuerit quod non habent sufficientem pasturam 6. Tunc recuperent Seisinam suam per visum Juratorum ita quod per Sacramentum eorum habeant sufficientem pasturam 7. Quod si Recognitum sit quod habeant sufficientem pasturam c. Communibus pasturis is once named Pastura sua for Communia sua seven times and the word Communia not named in this Act but where it mentions 8. The Writ of Novel disseisin de Communia pasturae suae which makes eight times 1. The granting solam separalem Pasturam of or in Black-acre may signifie an exclusion only of having Pasture in White-acre or any other place than Black-acre 2. The granting solam separalem pasturam of or in Black-acre may signifie the exclusion of any other person to have Pasture in Black-acre but the Grantee in which sense the word Solam signifies as much as totam pasturam 3. If the Grant be of all the Pasture the Grantor reserves nothing to himself of that which he grants but all passes into the Grantee but if the Grantor restrains the Grant after general words of granting all the Pasture the Restriction is for the benefit of the Grantor Therefore when the Grant is of Solam separalem pasturam of or in Black-acre all the Pasture is supposed to pass without restriction to the Grantee but if words follow in the Grant pro duabus vaccis tantum or pro averiis levantibus cubantibus super certum tenementum that is a restriction for the benefit of the Grantor for a man cannot in the same Grant restrain for his own benefit the largeness of his Grant and yet have no benefit of his restriction The Court was divided The Chief Justice and Justice Tyrrell for the Plaintiff Justice Archer and Justice Wylde for the Defendant Hill 20 21 Car. II. C. B. Rot. 1552. Adjud'gd 23 Car. II. C. B. Gardner vers Sheldon In Ejectione Firmae for Lands in Sussex Vpon not Guilty pleaded IT is found by the Special Verdict that long before the supposed Trespass and Ejectment One William Rose was seis'd of the Land in question in his Demesne as of Fee and so seis'd made his last Will and Testament November the Second 13 Jac. prout sequitur and sets forth the Will wherein among other things As touching the Lease which I have in my Farm called Easter-gate and all my Interest therein I do give and assign the said Lease and all my Interest therein unto my Friends John Clerk George Littlebury and Edward Rose to the intent that with the Rents and Profits thereof they may help to pay my Debts if my other Goods and Chattels shall not suffice And after my Debts paid my will is that the Rents and Profits of the said Land shall wholly go for and towards the raising of Portions for my two Daughters Mary and Katherine for each of them Six hundred pounds and for my Daughter Mary Two hundred pounds more which was given her by my Father her Grand-fathers Will. And those Sums being raised my will is the Rents and Profits of the said Land shall be wholly to the use and benefit of my Son George c. Item I give to my daughter Mary my greatest Silver Bowl Item I give to my daughter Katherine one plain Silver Bowl c. My will and meaning is That if it happen that my Son George Mary and Katherine my daughters to die without Issue of their Bodies lawfully begotten then all my free-Free-lands which I am now seis'd of shall come remain and be to my said Nephew William Rose and his Heirs for ever They find that the said William Rose the Testator before the Trespass viz. the First of June 14 Jac. died at Easter-gate in the said County of Sussex seis'd as aforesaid That at the time of his death he had Issue of his body lawfully begotten George Rose his only Son and Mary and Katherine his two Daughters That George the Son entred into the Premisses the First of July 14 Jac. and was seis'd prout Lex postulat Then after and before the time of the Trespass viz. June the Eight and twentieth 14 Car. 2. George died so seis'd of the Premisses at Easter-gate aforesaid That at the time of his death he had Issue of his body two Daughters Judith now wife of Daniel Sheldon one of the Defendants and Margaret now wife of Sir Joseph Sheldon the other Defendant That after the death of George their Father the said Judith and Margaret
entred and were seis'd before the Trespass suppos'd prout Lex postulat That Mary one of the daughters of the said William Rose July the First 1 Car. 2. died and that Katherine her Sister surviv'd her and is still living That the said Katherine October the First 20 Car. 2. at East-Grimsted entred into the said Tenements and was seis'd prout Lex postulat and the same day and year demis'd the same to the said Thomas Gardner the Plaintiff from the Feast of St. Michael the Arch-angel then last past for the term of Five years then next following By virtue whereof the said Thomas Gardner entred and was possessed until the said Joseph and Daniel Sheldon the same First day of October 20 Car. 2. entred upon him and Ejected him If upon the whole matter the Justices shall think the said Joseph and Daniel Sheldon culpable they find them culpable and assess Damages to Six pence and Costs to Twenty shillings But if the Justices shall conceive them not culpable they find them not culpable upon the words My will is if it happen my Son George Mary and Katherine my Daughters do dye without Issue of their Bodies lawfully begotten then all my Free Lands which I am now seised of shall come remain and be to my said Nephew William Rose and his Heirs for ever The first Question is Whether by this Will any Estate be Q. 1 devis'd to the Son and Heir of the Testator or to his Sisters If any Estate be devis'd what Estate is so devis'd to them Q. 2 or any of them The third Question is What Estate is by this Will devis'd Q. 3 to the Nephew and if any be how it shall take effect whether as a Remainder or as an Executory devise 1. As to the first it is clear That no Estate is devis'd to the Son or Daughters or any of them by express and explicit devise but if any be it is devis'd by implication only and collection of the Testators intent 2. If any Estate be given by this Will by Implication to the Son or Daughters or any of them it must be either a Joynt Estate to them for their lives with several inheritances in tayl or several Estates tayl to them in Succession that is to one first and the Heirs of his or her body and then to another and so successively 3. Such an Intail in Succession cannot possibly be because it appears not by the Will who should first take and have such Estate and who next c. and therefore such an Intail were meerly void for the incertainty of the person first taking as was rightly observ'd and assented to at the Bar. It remains then That the Estate devis'd by this Will if any be to the Son and his two Sisters must be a joynt Estate for their lives with several Inheritances to them in tayl by implication only And I am of Opinion That no such Estate is devis'd by this Will to the Son and two Daughters and I shall first observe That the Law doth not in Conveyances of Estates admit Estates to pass by implication regularly as being a way of passing Estates not agreeable to the plainness requir'd by Law in transferring Estates from one to another And for that the Case is A man according to the Custome of the Mannor Seagood and Hones Case 10 C. 1. Cr. f 336. surrendred to the use of Francis Reeve and of John Son of the said Francis and of the longest liver of them and for want of Issue of John lawfully begotten the Remainder to the youngest Son of Mary Seagood John had only an Estate for life and no Estate tayl by implication it being by conveyance Though as the Book is it might perhaps be an Estate tayl by Will which shews Estates by implication are not at all favour'd in Law though in mens last Wills they are allow'd with due restrictions In a Will Estates are often given by implication But I shall take this difference concerning Estates that pass by implication though it be by Will An Estate given by implication of a Will if it be to the disinheriting of the Heir at Law is not good if such implication be only constructive and possible but not a necessary implication I mean by a possible implication when it may be intended that the Testator did purpose and had an intention to devise his Land to A. but it may also be as reasonably intended that he had no such purpose or intention to devise it to A. But I call that a devise by necessary implication to A. when A. must have the thing devis'd or none else can have it And therefore if the implication be only possible and not necessary the Testators intent ought not to be construed to disinherit the Heir in thwarting the Dispose which the Law makes of the Land leaving it to descend where the intention of the Testator is not apparently and not ambiguously to the contrary Spirt Bences C. 8 Car. 1. Cro. 368. To this purpose the Case is 8 Car. 1. where Thomas Cann devis'd to Henry his youngest Son Item I give to the said Henry my Pastures in the South-fields and also I will that all Bargains Grants and Covenants which I have from Nicholas Welb my Son Henry shall enjoy and his Heirs for ever and for lack of Heirs of his Body to remain to my Son Francis for ever It grew a Question Whether this were an Intayl to Henry of the South-fields or only of the Bargains and Grants which the Testator had from Welb which was a very measuring Case and in determining this Case All the Four Judges agreed That the words of a Will which shall disinherit the Heir at Common Law must have a clear and apparent intent and not be ambiguous or any way doubtful So are the very words of the Book and therefore they resolv'd in that Case That only the Bargains and Grants had from Welb were intayl'd to the youngest Son and that he had only an Estate for life in the Pastures in the South-fields 1. I shall therefore now clear the difference I have taken That the Heir shall never be disinherited by a devise in a Will by implication and not explicit where the implication is only a possible implication and not a necessary implication 2. In the second place I shall shew That the words of this Will do not import a devise to the son and the two daughters for their lives joyntly with respective Inheritances in tayl to the Heirs of their several bodies by any necessary implication but only by an implication that is possible by construction 3. In the third place I shall shew That being so as to the Case in question it is not material whether the devise by way of Remainder to the Nephew be void or not 4. In the fourth place ex abundante and to make the Will of the Testator not ineffectual in that part of the Will I shall shew That the Nephew hath
Robert the son had Issue Margaret Isabel Jane Antenatas living the First of Octob. 14 Car. 1. and now have Issue at Kingston John naturalized 9. Maii 1 Jac. John the third son by the name of Sir John Ramsey was naturalized by Act of Parliament holden at Westminster May the Ninth 1. Jac. and after made Earl of Holdernes George Ramsey the fourth Son George naturalized 7 Jac. was naturalized in the fourth Session of Parliament held at Westminster begun by Prorogation 19 Febr. 17 Jac. and after had Issue John primogenitum filium Quodque idem Johannes had Issue John the now Defendant primogenitum suum filium but finds not where either of these were born nor the death of George Nicholas the second Son had Issue Patrick his only Son Nicholas had Issue Patrick a Native 15 Jac. born at Kingston after the Union 1 Maii 1618. about 15 Jac. John the third Son Earl of Holdernes seiz'd of the Mannors Rectory and Premisses in the Declaration mentioned with other the Mannors of Zouch and Taylboys John covenanted to levy a Fine de Premissis 1 Jul. 22 Jac. and divers other Lands in the County of Lincoln in Fee by Indenture Tripartite between him on the first part Sir William Cockayne and Martha his Daughter of the second part c. Dated the First of July 22 Jac. Covenanted to levy a Fine before the Feast of St. Andrews next ensuing to Sir William of all his said Lands To the use of himself for life then to the use of Martha his intended Wife for life with Remainder to the Heirs Males of his body begotten on her Remainder to such his Heirs Females Remainder to his right Heirs The Marriage was solemnized the Seven and twentieth of Sept. 22 Jac. John married 29 Sept. 22 Jac. He levied the Fine Octab. Michael 22 Jac. John died 1 Car. 1. Jan. 24. The Fine accordingly levied in the Common Pleas Octabis Michaelis 22 Jac. of all the Lands and Premisses among other in the Declaration mentioned The Earl so seiz'd as aforesaid with the Remainder over at Kingston aforesaid died the Four and twentieth of January 1 Car. 1. His Countess entred into the Premisses in the Declaration mentioned and receiv'd the Profits during her life After the Earls death a Commission issued Inquisition after his death capt 29 Febr. 7 Car. 1. and an Inquisition taken at Southwark in Surrey the Nine and twentieth of February 7 Car. 1. By this Inquisition it is found the Earl died seiz'd of the Mannor of Zouch and Taylboys and divers Land thereto belonging in Com. Lincoln and of the Mannor of Westdeerham and other Lands in Com. Norfolk and of the Rectory of Kingston and of the Advowson of the Vicaridge of Kingston in Com. Surrey but no other the Lands in the Declaration are found in that Office And then the Tenures of those Mannors are found and that the Earl died without Heir But it finds that the Earl so seiz'd levied a Fine of the Premisses to Sir William Cockayne per nomina Maneriorum de Zouches Taylboys Rectoriae de Kingston cum omnibus Decimis dictae Rectoriae pertinentibus and finds the uses ut supra and so finds his dying without Heir c. It finds the Fine levied in terminis Michaelis 22 Jac. but not in Octabis Michaelis as the Special Verdict finds but between the same persons The Irish Act to naturalize all Scots 4 Jul. 10 Car. 1. The general Act of Naturalizing the Scottish Antenati in the Kingdome of Ireland was made in the Parliament there begun at the Castle of Dublin the Fourth of July 10 Car. 1. Nicholas died 1 Sept. 10 Car. 1. Nicholas died the First of September 10 Car. 1. Leaving Issue Patrick Murrey's Pat. 25 Octob. 10 Car. 1. King Charles the First by his Letters Patents dated the Five and twentieth of October the Tenth of his Reign under the Great Seal granted to William Murrey his Heirs and Assigns in Fee-farm All the said Mannors Lands and Rectory mentioned in the Declaration with the Reversion depending upon any life lives or years Patrick conveys to the Earl of Elkin 16 Febr. 1651. Patrick and Elizabeth his wife by Indenture dated the Sixteenth of February 1651. Covenant with the Earl of Elkin and Sir Edward Sydenham in consideration of Eleven hundred pounds and bargained and sold the Premisses in the Declaration to them and their Heirs and covenanted at the Earls charge to levy a Fine with proclamation Patrick Uxor levy a Fine à die Paschae in fifteen days to the use of the Earl and his Heirs of the Premisses before the end of Easter Term next and accordingly did levy it with warranty against them and the Heirs of Patrick by force whereof and of the Statute of Uses the said Earl and Sydenham were seiz'd c. The Earl and Sydenham convey to the Countess Dowager 10 Mar. 1652. The Earl of Elkin and Sydenham by Indenture of Lease dated the Tenth of March 1652. and by Deed of Release and Confirmation conveys the Premisses to Amabel Dowager of Kent and the Lady Jane Hart viz. the Eleventh of March 1652. by way of Bargain and Sale to them and their Heirs who entred by the Lease and were in quiet possession at the time of the Release The Dowager conveys to Pullayne and Neale The Dowager and Lady Hart by like Conveyance of Lease and Release bargained and sold to Pullayne and Simon Neale dated the First and Second of November 1655. who entred and were in possession as aforesaid John Ramsey the now Defendant entred in 15 Car. 2. and kept possession Dat. 25 Sept. 1656. Pullayne and Neale convey to Talmuch and Weld by Bargain and Sale 20 Jan. 16 Car. 2. John Pullayne and Symon Neale by Deed of Bargain and Sale duly inrolled convey'd the Premisses to Lionel Talmuch and Humphrey _____ their Heirs and Assigns Lionel and Humphrey demis'd to Philip _____ the Plaintiff having entred and being in possession by Indenture dated the Twentieth of January 16 Car. 2. John then in possession and John re-entred upon the Plaintiff and Ejected him The Questions upon this Record will be three 1. Whether a Naturalization in Ireland will naturalize the person in England If it will not all other Questions are out of the Case 2. If it will then whether by that Act for naturalizing the Antenati of Scotland any his brothers had title to inherit the Earl of Holdernes in the lands in question By reason of the Clause in the Act of Naturalization That nothing therein contained should extend to avoid any Estate or Interest in any Lands or Hereditaments which have already been found and accrewed to his Majesty or to King James for want of naturalization of any such person and which shall and doth appear by Office already found and return'd and remaining of Record or by any other matter of Record An Office was found as appears
by the Verdict 7 Car. afore the Act by which it is found he died seised of the Rectory of Kingston in Reversion and of the Advowson of the Vicaridge and died without Heir and that the same escheated to the King and if all the lands in question were held of the King it being found he died without Heir the proviso will save all to the King 3. Whether Nicholas Ramsey under whom the Plaintiffs claim be the person who had title to the lands in question if any had Because 1. The death of Robert the elder Brother is not sufficiently found before the Act of Naturalization for then he and not Nicholas was heir to John 2. Because if Robert the elder were dead before yet he left Issue three Daughters who were naturalized as well as Nicholas by the Act and are the heirs to the Earl being the Issue of his elder Brother If Robert had died after the Irish Act made this Verdict had been as true as now it is Therefore it is not sufficient to find him dead before the Act. Et Juratores ulterius dicunt quod praedictus Robertus filius primogenitus natu maximus praedicti Roberti patris postea obiit tempore mortis suae habens relinquens tres filias de corpore ipsius Roberti filii legitime procreatas viz. Margaret Isabel Janam Alienigenas natas in Regno Scotiae ante accessionem praedict Quae quidem Margaret Isabella Jana primo die Octobris Anno Regni Domini Caroli nuper Regis Angliae primi quarto decimo in plena vita fuerant habent exitus de carum corporibus exeuntes modo superstites in plena vita existentes apud Kingston super Thames praedict As to the second part in the Case of Aliens nothing interrupts the common course of Descents but Defectus Nationis as Bracton terms it Therefore that being taken away by naturalization they shall inherit as if it had not been and then the eldest Brothers Issue had inherited before the second Brother 1. It is admitted and will easily appear That one naturalized in Scotland since the Union cannot inherit in England 2. Ireland then differs from Scotland in a common difference with Gernsey Jersey Isle of Man Berwick and all the English Plantations for that they are Dominions belonging to the Crown of England which Scotland is not 3. If this difference which was never discussed in Calvin's Case alter not the Case from a naturalizing in Scotland it remains whether by Act of Parliament of England though not extant Ireland in this matter be not differenc'd from other Dominions belonging to England 1. He that is priviledg'd by the law of England to inherit there must be a Subject of the Kings 2. He must be more than a local Subject either in the Dominion of England or out of the Dominion of England for meer Aliens when locally in England or any other Dominions of the Kings are local Subjects 3. He must be otherwise a Subject than any Grant or Letters Patents of the King can make him 7 Rep. Calvins C. f. 7. a. 36 H. 6. Tit. Deniz Br. 9. Therefore a Denizen of England by Letters Patents for life in tayl or in fee whereby he becomes a Subject in regard of his person will not enable him to inherit in England but according to his Denization will enable his Children born in England to inherit him and much less will his Denization in any other Dominion Whence it follows That no Laws made in any other Dominion acquired by Conquest or new Plantation by the King's Lieutenants Substitutes Governours or People there by vertue of the King's Letters Patents can make a man inherit in England who could not otherwise inherit For what the King cannot do by his Letters Patents no delegated power under him can do by his Letters Patents It follows likewise upon the same reason That no tenure of Land by Homage Fealty or other Service in any other Dominion of the Kings acquired by Conquest or otherwise by any Grant or Letters Patents can make a man inherit in England who could not otherwise inherit Calvins Case f. 6. b. for that is not Homagium ligeum but Feodale as is rightly distinguished 4. A man born a Subject to one that is King of England cannot therefore inherit in England for then the Antenati in Scotland had inherited in England they were born Subjects to King James who was King of England but not born when he was King of England 5. A Subject born in any Dominion belonging to the Crown of England is inheritable in England as well as native Englishmen So the natural born Subjects of Ireland Gernsey Jersey Berwick and all the English Plantations inherit but the specifique reason of their inheriting in England is not because they are born in Dominions belonging to the Crown of England for if so none could inherit who wanted that and then the Postnati of Scotland should not inherit for Scotland is not a Dominion belonging to the Crown of England but to the King of England It remains then according to the Resolution and Reasons of Calvin's Case That the specifique and adequate cause why the Kings Subjects of other his Dominions than England do inherit in England is because they are born his natural Subjects as the English are he being actually King of England at the time of their birth when their subjection begins Cok. Rep. Calvins Case and so are born Liege-men to the same King But then since all Liegeance and Subjection are acts and obligations of Law for a man owes no liegeance excluding all Civil Law but a man is said a natural Subject because his Subjection begins with his birth that is as soon as he can be subject and a King is said to be a mans natural Prince because his Protection begins as soon as the Subject can be protected and in the same sense that a Country where a man is born is his natural Country or the Language he first speaks is his natural Tongue why should not an Act of Law making a man as if he had been born a Subject work the same effect as his being born a Subject which is an effect of law 1. The Reason is That naturalization is but a fiction of Law and can have effect but upon those consenting to that fiction Therefore it hath the like effect as a mans Birth hath where the Law-makers have power but not in other places where they have not Naturalizing in Ireland gives the same effect in Ireland as being born there so in Scotland as being born there but not in England which consents not to the fiction of Ireland or Scotland nor to any but her own 2. No fiction can make a natural Subject for he is correlative to a natural Prince and cannot have two natural Soveraigns but may have one Soveraign as a Queen Soveraign and her Husband in two persons no more than two natural Fathers or two natural
eas in omnibus sequantur In cujus c. T. R. apud Wadestocks ix die Septembris Out of the Close Rolls of King Henry the Third his Time Clause 1 H. 3. dorso 14. The Kings thanks to G. de Mariscis Justice of Ireland The King signifies that himself and other his Lieges of Ireland should enjoy the Liberties which he had granted to his Lieges of England and that he will grant and confirm the same to them Clause 3. H. 3. m. 8. part 2. The King writes singly to Nicholas Son of Leonard Steward of Meth and to Nicholas de Verdenz and to Walter Purcell Steward of Lagenia and to Thomas the son of Adam and to the King of Connage and to Richard de Burgh and to J. Saint John Treasurer and to the other Barons of the Exchequer of Dublin That they be intendant and answerable to H. Lord Arch-bishop of Dublin as to the Lord the King's Keeper and Bailiff of the Kingdome of Ireland as the King had writ concerning the same matter to G. de Mariscis Justice of Ireland Clause 5. H. 3. m. 14. The King writes to his Justice of Ireland That whereas there is but a single Justice itinerant in Ireland which is said to be dissonant from the more approved custome in England for Reasons there specified two more Justices should be associated to him the one a Knight the other a Clerk and to make their Circuits together according to the Custome of the Kingdom of England Witness c. The Close Roll. 5 H. 3. m. 6. Dorso The King makes a Recital That though he had covenanted with Geoffrey de Mariscis That all Fines and other Profits of Ireland should be paid unto the Treasure and to other Bailiffs of the Kings Exchequer of Dublin yet he receiv'd all in his own Chamber and therefore is removed by the King from his Office Whereupon the King by advise of his Council of England establisheth that H. Arch-bishop of Ireland be Keeper of that Land till further order And writes to Thomas the son of Anthony to be answerable and intendant to him After the same manner it is written to sundry Irish Kings and Nobles there specially nominated Clause 7. H. 3. m. 9. The King writes to the Arch-bishop of Dublin his Justice of Ireland to reverse a Judgment there given in a Case concerning Lands in Dalkera between Geoffrey de Mariscis and Eve his wife Plaintiffs and Reignald Talbott Tenant By the Record of the same Plea returned into England the Judgment is reversed upon these two Errors The first because upon Reignald's shewing the Charter of King John the King's Father concerning the same Land in regard thereof desiring peace it was denyed him The second Because the Seisin was adjudged to the said Geoffrey and Eve because Reynald calling us to warranty had us not to warranty at the day set him by the Court which was a thing impossible for either Geoffrey or the Court themselves to do our Court not being above us to summon us or compel us against our will Therefore the King writes to the Justice of Ireland to re-seise Reynald because he was disseised by Erroneous Judgment Clause 28. H. 3. m. 7. The King writes to M. Donenald King of Tirchonill to aid him against the King of Scots Witness c. The like Letters to other Kings and Nobles of Ireland Clause 40. E. 3. m. 12. Dorso The King takes notice of an illegal proceeding to Judgment in Ireland Ordered to send the Record and Process into England It was objected by one of my Brothers That Ireland received not the Laws of England by Act of Parliament of England but at the Common Law by King John's Charter If his meaning be that the Fact was so I agree it but if he mean they could not receive them by Act of Parliament of England as my Brother Maynard did conjecturally inferr for his purpose then I deny my Brothers Assertion for doubtless they might have received them by Act of Parliament And I must clear my Brother Maynard from any mention of an Union as was discoursed of England and Ireland Nor was it at all to his purpose If any Union other than that of a Provincial Government under England had been Ireland had made no Laws more than Wales but England had made them for Ireland as it doth for Wales As for the Judgment Obj. One of my Brothers made a Question Whether George Ramsey the younger Brother inheriting John Earl of Holdernes before the naturalization of Nicholas Whether Nicholas as elder Brother being naturalized should have it from him Doubtless he should if his Naturalizing were good He saith the Plaintiff cannot have Iudgment because a third person by this Verdict hath the Title Answ If a Title appear for the King the Court ex Officio ought to give Iudgment for him though no party But if a man have a prior Possession and another enters upon him without Title I conceive the priority of Possession is a good Title against such an Entry equally when a Title appears for a third that is no party as if no Title appear'd for a third But who is this third party For any thing appears in the Verdict George Ramsey died before the Earl 2. It appears not that his Son John or the Defendant his Grand-child were born within the Kings Liegeance Patient appears to be born at Kingston and so the Daughters of Robert by the Verdict The Acts of Ireland except all Land whereof Office was found before the Act to entitle the King but that is in Ireland for the Act extends not to England If Nicholas have Title it is by the Law of England as a consequent of Naturalization So it may be for the Act of 7 Jac. cap. 2. he that is Naturalized in England since the Act must receive the Sacrament but if no Alien by consequent then he must no more receive the Sacrament than a Postnatus of Scotland Obj. Ireland is a distinct Kingdom from England and therefore cannot make any Law Obligative to England Answ That is no adequate Reason for by that Reason England being a distinct Kingdom should make no Law to bind Ireland which is not so England can naturalize if it please nominally a person in Ireland and not in England But he recover'd by saying That Ireland was subordinate to England and therefore could not make a Law Obligatory to England True for every Law is coactive and it is a contradiction that the Inferior which is civilly the lesser power should compel the Superior which is greater power Secondly He said England and Ireland were two distinct Kingdoms and no otherwise united than because they had one Soveraign Had this been said of Scotland and England it had been right for they are both absolute Kingdoms and each of them Sui Juris But Ireland far otherwise For it is a Dominion belonging to the Crown of England and follows that it cannot be separate from it but by
comprehends both Inconveniences apponere remedium Statuit quod voluntas donatoris secundum formam in Charta Doni sui manifeste expressam de caetero observetur ita quod non habeant illi quibus Tenementum sic datum fuit sub conditione potestatem alienandi Tenementum sic datum quo minus ad exitum illorum quibus Tenementum sic fuerit datum remaneat post eorum obitum vel ad donatorem vel ad ejus haeredes si exitus deficiat revertatur Per hoc quod nullus sit exitus omnino vel si aliquis exitus fuerit per mortem deficiet haerede de corpore hujusmodi exitus deficiente 1. By these words the Donee or Tenant in tayl is restrained from all power of alienation whereby the Lands intail'd may not descend to the Heir in tayl after his death Therefore By these words he is restrained from alienation with warranty which doubtless would hinder the Land so to descend if it were not restrained by the words of the Statute 2. By the same words the Donee in tayl is restrained from all power of alienation whereby the Lands intail'd may not revert to the Donor for want of Issue in tayl Therefore By those words he is restrained from such alienation with warranty whereby the Lands may not revert to the Donor or his Heirs for want of Issue in tayl For the same words of the Statute must be of equal power and extent to restrain the Donees alienation from damaging the Donor as from damaging the Issue in tayl Otherwise 3. Words in an Act of Parliament That A. should have no power to hurt the right of B. nor the right of C. must signifie that A. shall have no power to hurt the right of B. but shall have some to hurt the right of C. which is that A. by his warranty shall not harm B. but may by his warranty harm C. 4. If it be said The Statute restraining not the alienation by warranty as to the Issue in tayl the Issue would have no benefit by the Statute For it is as easie for the Donee or Tenant in tayl to alien with warranty and so to deprive the Issue of all benefit of the Statute as to alien without warranty But his warranty can seldom descend upon the Donor and therefore cannot be so hurtful to him as to the Issue in tayl How doth this satisfie the equal restraint of the Statute from harming the Donor or the Issue in tayl For This Logick and Reasoning is the same as to say A. by express words is restrained from beating B. or beating C. but A. hath more frequent opportunities of beating B. than of beating C. Therefore the same words restrain A. from beating B. at all But not from beating C. when opportunity is offered 5. In the next place admit the words of restraint in the Statute de donis had been Rex Statuit quod voluntas donatoris in Charta doni sui expressa de cetero observetur ita quod non habeant illi quibus Tenementum sic fuit datum sub Conditione potestatem alienandi Tenementum sic datum per Warrantiam vel aliter quo minus ad exitum eorum remaneat vel ad donatorem revertatur It had then been clear to every understanding That the warranty of the Donee or Tenant in tayl by the express words of the Statute did neither barr the Donor nor the Issue in tayl for words more express were not inventable to restrain the Donees warranty from barring them and then observe what consequents had been rightly deduc'd from such restraint made by the Statute The Statute expresly restrains the warranty of Tenant in tayl from barring his Issue whence it follows That by the Statute the Issue in tayl is not barr'd by the Lineal warranty of Tenant in tayl because his warranty upon the Issue in tayl cannot possibly be any other than a Lineal warranty It might be said in like manner the Statute de donis restrains the warranty of Tenant in tayl from barring the Donor or his Heir of the Reversion the consequent thence deducible had been That the Statute had restrain'd the Collateral warranty of Tenant in tayl from barring the Donor or his Heirs because his warranty falling upon the Donor or his Heir could be no other than a Collateral warranty Now it is true the word warranty is not in syllables within the restraint of the Statute but is necessarily implyed in it else the Issue in tayl would be barr'd by the warranty of Tenant in tayl without Assets contrary to all the Current of our Books from the making of the Statute But those general words of the Statute restraining the Donees power of alienation in express terms equally pari passu for the benefit of the Donor as for the benefit of the Issue in tayl can never be understood to restrain the warranty of Tenant in tayl only for the benefit of the Issue in tayl but not at all for the benefit of the Donor but the Statute must necessarily restrain his warranty indefinitely from hurting either and by consequent his Lineal warranty is restrained from hurting the Issue and his Collateral warranty from hurting the Donor to whom his warranty can never be but Collateral as it can never be but Lineal to the Issue in tayl And if it be necessarily understood and implyed in the Statute the operation must be the same as if it had been syllabically inserted in the Statute Then to say by the restraint of the Statute the Donees have not power to alien the Land intayl'd quo minus ad exitum illorum remaneat post eorum mortem but they have power to alien quo minus ad donatorem revertatur deficiente exitu is to make the Statute contradictory to it self which saith Non habeant de caetero potestatem alienandi quo minus ad exitum illorum remaneat vel ad donatorem vel ejus haeredes revertatur deficiente exitu 6. Again if the Statute had provided only for indempnity of the Issue in tayl omitting the Donor and his Heirs by the words Non habeant de caetero potestatem alienandi quo minus Tenementum sic datum ad exitum illorum remaneat post obitum eorum The Donees warranty had been restrain'd as it is to barr the Issue And if it had only provided for the Indempnity of the Donor and his Heirs omitting the Issue by the words Non habeant potestatem alienandi quo minus Tenementum sic datum ad Donatorem vel ad ejus haeredes revertatur deficiente exitu must not his warranty have been restrain'd from barring the Donor and his Heirs in like manner Why then the restraint reaching to both Issue and Donor must not both have like benefit of it And for further Answer to that thin Objection That the Statute did not provide against the Donees warranty falling on the Donor or his Heirs because it can fall on them but seldome and that
in time is 11 Jac. in Debt upon a Bond the Action was laid in the County of Hereford upon Nil debet pleaded the Plaintiff had Judgment and Execution and a Writ to the Sheriff of the County of Radnor to levy Execution who did not but made his Retorn That breve Domini Regis non currit there Qu. How an Action of Debt could be laid in Hereford which must be by Original unless the party were in Custodia Mariscal and declared upon a Bond in the County of Hereford Coke the Chief Justice said before the Statute of 27 H. 8. c. 26. which annexed Wales and England doubt might have been in that Case but since the Statute 27 H. 8. it was clear and grounded himself upon a Case in 13 E. 3. of which more anon In this Case the Court did agree That the Writ of Execution did well go into Wales and amerced the Sheriff 10 l. for his had Retorn In this Case Dodridge agreed with Coke and said If the Law should be otherwise all the Executions in England would be defeated This was a Resolution upon some Debate among the Judges of the Court but upon no Argument at Barr for any thing appearing Per Doderidge If Debt be brought against one in London 16 Jac. B.R. Croke 484. and after the Defendant removes and inhabits in Wales a Capias ad satisfaciendum may be awarded against him into Wales or into any County Palatine and this was his Opinion exactly in the former Case But as the course of the Common Pleas was alledged to be contrary to what Mann said was used in the King Bench in the Case of Hall Rotheram 10 Jac. before cited so It was in the same year 11 Jac. wherein the Kings Bench resolved That Execution did well issue to the Sheriff of the County of Radnor of a Recovery in Debt in the Kings Bench and fin'd the Sheriff for his Retorn that breve Domini Regis non currit in Wallia Resolved otherwise in the Common Pleas 11 Jac. Godbolt f. 214. and that by the whole Court That a Fieri facias Capias ad Satisfaciendum or other Judicial Process did not run into Wales but that a Capias utlagatum did go into Wales and as Brownloe Pronotary then said that an Extent hath gone into Wales And it is undoubtedly true as to the Capias utlagatum and Extent but as to all other Judicial Process into Wales upon Judgments obtained here between party and party hitherto there is nothing to turn the Scale The Judgment of the Court of Common Pleas being directly contrary to that of the Kings Bench in the same age and time Vpon occasion of a Procedendo moved for to the Council of the Marches who had made a Decree Bendloes Rep. 2 Car. 1. Term. Mich. f. 192. Beatons Case That some persons living in the English Counties where they at least exercised Jurisdiction should pay monies recovered against him at a great Sessions in Wales he having neither Lands or Goods nor inhabiting in Wales having obtained a Prohibition to the Council of the Marches the Court of the Kings Bench was against the Procedendo No time is mentioned when this Resolution cited by Jones was so as i◠probably preceded the Resolutions of the Judges in Crooke And Justice Jones cited a Case where Judgment was given in the great Sessions of Cardigan against a Citizen of London who then inhabited there and after removed his Goods and Person thence that upon great deliberation it was resolved A Certiorari should issue out of the Chancery to remove the Record out of Wales and that then it should be sent by Mittimus into the Kings Bench and so Execution should be awarded in England of the Judgment had in Wales If this were so for which there is no other Authority but that Justice Jones cited such a Case not mentioning the time I agree it would seem strange that a Judgment obtained in Wales should by Law be executed in England and that a Judgment obtained in England could not be executed in Wales Cr. 2 Car. 1. f. 346. But in the same year in Easter Term before at an Assembly of all the Iustices and Barons it was resolved where Judgment was given in Debt at the great Sessions in Wales against a Defendant inhabiting there and the Defendant dying intestate one who inhabited in London taking Administration This Case is in the point for a Scire facias to have Lands in Wales must be against the Heir inhabiting in England but having Lands in Wales that Execution could not be in Wales because the Administrator inhabited not there nor a Certiorari granted out of the Chancery to remove the Record that so by Mittimus it might be sent to the Kings Bench or Common Pleas to take forth a Scire facias upon it to have Lands out of Wales or Goods in the Administrators hands liable to it there This was the Resolution of all the Justices and Barons for these Reasons First by this way all Judgments given in London or other inferior Jurisdictions would be removed and executed at large which would be of great inconvenience to make Lands or Goods liable to Execution in other manner than they were at the time of the Judgment given which was but within the Jurisdiction Secondly It would extend the Execution of Judgments given in private and limited Jurisdictions as amply as of Iudgment given at the Kings Courts at Westminster By this Resolution a Judgment given in Wales shall not be executed in England out of their Jurisdiction of Wales and à pari a Judgment given in England ought not to be executed in Wales which is out of the Jurisdiction of the English Courts more than a Judgment given in the Kings Bench or Common Pleas ought to be executed in Ireland or the Islands which are out of their Jurisdiction equally and upon the same grounds for any thing deducible from these Cases which was never pretended that it could be done And by that Case of Coke Lands Persons or Goods ought not to be lyable to Judgments in other manner than they were at the time of the Judgment given which was where the Court had Jurisdiction which gave the Judgment Nor is it material to say the Judgments then given are of no effect no more than to say Judgments given in the Kings Courts are of no effect against an Irish-man Dutch-man or Scotch-man that hath no Lands or Goods in England liable to Execution by that Judgment For the Plaintiff commencing his Suit ought to be conuzant what benefit he might have from it Nor are Presidents of Fact which pass sub silentio in the Court of Kings Bench or Common Pleas in such Cases to be regarded For Processes issue out of the Offices regularly to the Sheriffs of the County whereupon the Testator the Person Goods or Lands are said to be without distinction of places within or without the Jurisdiction
the Kings license must be without any limitation to him that hath it to exercise his Trade as before it was prohibited otherwise it is no license 346 17. Where the King may dispense generally he is not bound to it but may limit his Dispensation 346 18. Where the King can dispense with particular persons he is not confined to number or place but may license as many and in such places as he thinks fit 347 19. A Corporation is capable of a Dispensation 347 348 20. A Dispensation to a person to keep an Office which person is not capable of such Office is void 355 21. Where a license Ex speciali gratia is good to dispense with a penal Law without a Non obstante 356 Distress 1. A privity is necessary by the common Law between the Distrainer and Distrained 39 2. Attornment and power to Distrain follows the possession and not the Use 43 3. Where a Rent is well vested and there is an Attornment when ever the Rent is arrear a Distress is lawful unless the power is lost 39 4. Where Rent is arrear and afterwards the Rent is granted over in Fee and an Attornment thereunto here the Grantor hath lost his arrears and cannot Distrain 40 5. If a Fine is levied of the Reversion of Land or of Rent to Uses the Cestuy que use may Distrain without attornment 50 51 Dominion 1. Dominions belonging to the Crown of England cannot be separated from it but by Act of Parliament made in England 300 2. What are Dominions belonging to the Realm of England though not in the Territorial Dominions of England ibid. 3. By what Title the Crown of England held Gascoign Guyen and Calais 401 Dower 1. The wife of a Conizee of a Fine shall not be thereof endowed because it is but a fictitious Seisin 41 2. The wife is dowable of a Rent in Fee 40 Droit d'Advowson 1. Where the Writ lies and for whom 11 16 2. In a Droit d'Advowson the King may alledge Seisin without alledging any time 56 Ecclesiastical Court See Archbishop Prohibition THe Secular Judges are most conuzant of Acts of Parliament 213 2. The Temporal Judges have conuzance of what marriages are within the Levitical Degrees and what not and what are incestuous 207 3. The Clergy of this Kingdom shall not enact or execute any Canon Constitution or Ordinance Provincial unless they have the Kings license 329 Elegit 1. It lies upon a Recognizance taken in any of the Courts at Westminster or before any Judge out of Term 102 Error See Presidents Iudgment 1. An erroneous Judgment is a good Judgment to all intents whatsoever until reversed 94 2. If an inferiour or superiour Court gives an erroneous Judgment it is reversible by Writ of Error 139 3. Where the matter concerns the Jurisdiction of the Court a Writ of Error lies no where but in Parliament 396 4. A Writ of Error lies to reverse a Judgment in any Dominion belonging to England 290 402 5. A Writ of Error lay to reverse a Judgment in Calais 402 6. It lies to reverse a Judgment in Ireland 290 291 298 402 Escheat 1. Where the Heir at Law dies without heir the Land escheats and the Lord's Title will precede any future Devise 270 Esplees 1. The profits of a Mine is no Esplees for the Land but only the Esplees for the Mine it self 255 2. So likewise for a Wood the profits of it is no Esplees but only for the Land only upon which the Wood grows ibid. Estates See Grant 1. The Law doth not in Conveyances of Estates admit Estates to pass by Implication as being a way of passing Estates not agreeable to the plainness required by Law in the transferring of Estates 261 262 c. 2. But in Devises they are admitted with due restrictions 261 262 263 c. 3. What Executory Devises and contingent Remainders are good and what not 272 273 4. When a new Estate is granted the privity to the old Estate is destroyed 43 5. The Estate may be changed and yet the possession not changed but remain as formerly 42 6. An Estate in a Rent-charge may may be enlarged diminished or altered and no new Attornment or privity requisite 44 45 46 7. The Seisin of the Conizee of a Fine is but a meer fiction and an invented form of Conveyance only 41 8. His wife shall not be endowed neither shall his heir inherit 41 Estoppel or Conclusion 1. A Demise by Indenture of a Term habendum from the expiration of another term therein recited when really there is no such term in esse is no Estoppel to the Lessor or Lessee but the Lessee may presently enter and the Lessor grant the Reversion 82 Evidence 1. No evidence can be given to a Jury of what is Law 143 2. A witness may be admitted to prove the Contents of a Deed or Will 77 3. The Jury may go upon evidence from their own personal knowledge 147 Execution See Elegit 1. Lands Persons or Goods ought not to be lyable to Judgments in other manner than they were at the time of the Judgment given which was where the Court had Jurisdiction which gave the Judgment 398 2. What Execution shall be sued out upon a Recognizance acknowledged in any of the Courts at Westminster or before a Judge 103 3. What Execution shall be sued out upon a Statute 102 4. Upon a Recovery in England an Execution doth not lye into Wales 397 398 5. Perhaps by special Writs to the chief Officer of the King Execution may be made of Judgments given at Westminster in any of his Dominions 420 Executor See Title Statute 10 20. 1. How they are to administer the Testators estate 96 2. An Executor may refuse but cannot assign over his Executorship 182 3. It is no Devastavit in an Executor to satisfie a Judgment obtained upon a simple Covenant before a debt due by Obligation 94 95 97 4. Where an Action of Debt upon Bond or Judgment is brought against him he may confess the Action if there be no fraud in the Case although he hath notice of a former Suit 95 100 5. The Executor may plead an erroneous Judgment in Barr 94 97 6. A Recognizance in Chancery must be paid before Debts upon simple Contracts and Debts by Bond 103 7. It is a Devastavit in an Executor to pay voluntarily a Debt by simple Contract before a Debt by Bond whereof he had notice and not otherwise 94 95 8. It is a Devastavit to satisfie a later Judgment if there are not Assets left to satisfie a former Judgment 95 9. An Action will not lye against Executors upon a Tally because it is no good Specialty 100 10. The pleading of Plene administravit praeter plene administravit ultra and in what Cases it may be pleaded and how 104 Exposition of Words Quam diu 32 Dum ibid. Dummodo ibid. Usually letten 33 34 At any time 34 Or more 35 More or less ibid. Gurges
108 Stagnum ibid. Appertaining 108 109 Reputation 109 Without any lett 121 Quiete pacifice ibid. Lawfully enjoy 124 Dedi Concessi 126 Wreck 168 Derelict ibid. Imported or brought 171 172 Per Nomen 174 175 Claim 188 193 Una cum 197 Nature what it is 221 224 Unnatural 221 222 224 Uncle 241 Communia 255 Remainder 269 in loco 279 Naturalization 280 Antenati Postnati 273 Neer of kin 306 307 308 309 310 Malum prohibitum malum in se 332 333 334 c. 358 359 Dispensation 333 336 349 Exemption 349 Commot 405 Exposition of Sentences 1. Words which are insensible ought to be rejected so also words of known signification so placed in the Deed that they make it repugnant and sensless are to be rejected equally with words of no signification 176 2. In things necessary there are no degrees of more or less necessary 344 3. What appears not to be must be taken in Law to be as if it were not 169 4. Lands usually letten shall be intended Lands twice letten 33 5. Lands which have at any time before been usually letten how expounded 34 6. How long time will gain a Reputation to pass a thing as appertaining 109 Extinguishment 1. Extinguishment of a Rent is when it is absolutely conveyed to him who hath the Land out of which it issues or the Land is conveyed to him to whom the Rent is granted 199 2. A perpetual union of the Tenancy to the Rent or Rent to the Tenancy is an extinguishment of the Rent 39 3. Where Rent is arrear and afterwards it is granted over in Fee and an Attornment thereunto here the Grantor hath absolutely lost his arrears and cannot after distrain 40 Extent 1. An Extent is sueable into Wales but a Ca. Sa. or Fi. Fa. is not 397 Fee-simple 1. A Fee-simple determinable upon a Contingent is a Fee to all intents but not so durable as an absolute Fee-simple 273 2. A. had issue W. T. and R. and devised to T. and his heirs for ever and if T. died without issue living W. then W. should have the Land this is a good Fee in T. And W. hath a Fee in possibility by Executory Devise if T. dyed without issue before him 272 Fieri Facias See Execution  Fine Fines 1. A Fine levied without consideration or use expressed is to the use of the Conizor 43 2. The Seisin of the Conizee of a Fine is but a meer fiction and an invented form of Conveyance only 41 42 3. The wife in that case shall not be endowed neither shall it descend to his Heir 41 Formedon 1. The Statute de Donis formed a Writ of Formedon in the Descender for the new Estate Tayl created by that Statute but makes no mention of a Formedon in the Reverter as already known in the Chancery 367 Franchise 1. Franchises Inferiour and Counties Palatine are derived out of the Counties by the Kings Grants where the Kings Writ did run 418 Fraud 1. Wheresoever an Action of Debt upon Bond or Contract is brought against an Executor he may confess the Action if there be no fraud in the case although he have notice of a former Suit depending 95 Gardian in Soccage See Title Statutes 26. 1. WHO is Gardian in Soccage at the Common Law 178 244 2. What a Gardian may do in his own name 182 3. Who were Legitimi tutores or Gardians by the Civil Law 244 4. The Exposition of the Statute made 12 Car. 2. 183 184 5. The Gardian by the Statute of 12 Car. 2. doth not derive his authority from the Father but from the Law 186 6. The Lands follow the Gardianship and not the Gardianship the Lands 178 7. The Gardianship now by the Statute may be till One and twenty years 179 8. Such a special Gardian cannot transfer the custody of the Ward by Deed or Will to any other 179 181 9. The trust is only personal and not assignable neither shall it go to the Executors or Administrators 180 181 10. If the father appoint the custody until One and twenty and the Gardian dies it determines with the death of the Gardian and is a Condition in Law if he live so long 185 Grants Grantor Grantee 1. The Law doth not in the Conveyances of Estates admit Estates regularly to pass by implication But in Devises they are allowed with due restrictions 261 262 c. 2. A thing so granted as none can take by the Grant is a void Grant 199 3. In Grants words which are insensible ought to be rejected so likewise words of known signification when they are so placed in the Deed that they are Repugnant are to be rejected equally with words of no known signification 176 4. The meaning of the word appertaining in a Grant and how far it will extend and what it will pass 108 109 5. Land in possession cannot pass by the Grant of a Reversion but by the grant of Land a Reversion will pass 83 6. By the Grant of Stagnum Gurgitem aquarum the Soyl of the Pond passes 107 108 109 7. Where by the Deuise of the Farm of H. the Mannor of H. will well pass 71 8. To a Grant of a Rent by the Common Law an Attornment is requisite 39 9. A Lease is made habendum for 40 years after the expiration of a Lease made to another person whereas in truth there is no such Lease this Lease for 40 years shall commence presently 73 74 80 81 83 84 10. To give or grant that to a man which he had before is no gift at all 42 Grants by the King See Non Obstante Pardon Prerogative 1. Where the Kings Grant is void although there be a saving in an Act of Parliament of all the Right of such Grantee yet that shall not aid it 332 2. If a Patent is not void in its creation it remains good after the death of the King that granted it 332 Habendum 1. A Lease is made habendum for Forty years after the expiration of a Lease made to another person whereas in truth there is no such Lease this Lease for Forty years shall commence presently 73 74 80 81 2. A Rent is granted habendum for Seven years after the death of the Grantor Remainder in Fee 46 Habeas Corpus 1. The Writ of Habeas Corpus is now the most usual Remedy by which a man is restored again to his liberty if against Law he hath been deprived of it 136 2. The Cause of the imprisonment ought as specifically and certainly appear to the Judges upon the Return as it did appear to the Court or person authorized to commit 137 138 139 140 3. A prisoner committed per mandatum of the Lord Chancellor by vertue of a Contempt in Chancery was presently bailed because the Return was generally for Contempts to the Court but no particular Contempt exprest 139 140 4. The Court of Common Pleas or Exchequer upon Habeas Corpus may discharge Prisoners imprisoned by other
to the King to license as he thought fit 355 2. The intent of the Act being That every man should not sell Wine that would his Majesty could not better answer the ends of the Act than to restrain the sellers to Freemen of London to the Corporation of Vintners men bred up in that Trade and serving Apprenticeships to it ibid. 13 El. c. 12 Not reading the Articles 1. Immediately upon not reading the Articles the Incumbent is by this Statute deprived ipso facto 132 2. Upon such Deprivation the Patron may present Ante 14. and his Clerk ought to be admitted and instituted but if he do not no Lapse incurrs until after Six months after notice of such Deprivation given to the Patron 132 3. Where the Incumbent subscribes the Articles upon his Admission and Institution that makes him perfect Incumbent pro tempore 133 4. But if he hath a Benefice and afterwards accepts another and doth not subscribe nor read the Articles then he never was Incumbent of the second and consequently never accepted a second Benefice to disable him from holding the first 132 133 134 1. That all Leases by Spiritual persons of Tythe c. 13 Eliz. cap. 10. Concerning Leases to be made by Ecclesiastical persons parcel of their Spiritual Promotions other than for One and twenty years or three Lives reserving the accustomed yearly Rent shall be void 2. This Statute intended that Leases in some sense might be made of Tithes for One and twenty years or three Lives and an ancient Rent Reserved but of a bare Tythe only a Rent could not be reserved for neither Distress nor Assise can be of such a Rent 203 204 3. Therefore a Lease of Tythe and Land out of which a Rent may issue and the accustomed Rent may be reserved must be good within the intent of the Statute 204 7 Jac. cap. 5.21 Jac. cap. 12. For Officers to be sued in the proper County 1. The question upon these Acts was Whether an Officer or any in their assistance that shall do any thing by colour of but not concerning their Office and be therefore impleaded shall have the benefit of these Acts. 2. Or if they are impleaded for any thing done by pretence of their Offices and which is not strictly done by reason of their Office but is a mis-seazante Whether they may have the like benefit 3. Without this Act the Action ought to be laid where the Fact was done and the Act is but to compel the doing of that where an Officer is concerned that otherwise Fieri debuit 114 4. The Statute intends like benefit to all the Defendants where the Fact is not proved to be done where the Action is laid as if the Plaintiff became Non-suit or suffered a Discontinuance viz. that they should have double costs 117 12 Car. 2. cap. 4. For granting Tonnage and Poundage to the King 1. Those Wines which are to pay this Duty according to the Act must be Wines brought into Port as Merchandise by his Majesties Subjects or Strangers 165 2. But Wines which are by their kind to pay Duty if they shall be brought into Ports or Places of this Kingdom neither by his Majesties Subjects nor Aliens they are not chargeable with this Duty ibid. 3. If they are not brought into the Ports and Places as Merchandize viz. for Sale they are not chargeable with the Duty 165 170 4. Wines coming into this Kingdom as Wreck are neither brought into this Kingdom by his Majesties Subjects nor Strangers but by the Wind and Sea 166 5. Wreck'd Goods are not brought into this Kingdom for Merchandise viz. for Sale but are as all other the Native Goods of the Kingdom for sale or other use at the pleasure of the owner ibid. 6. All Goods chargeable with the Duties of this Act must be proprieted by a natural born Merchant or Merchant Alien and accordingly the greater and lesser Duty is to be paid 166 168 7. All Goods subject to this Duty may be forfeited by the disobedience and mis-behaviour of the Merchant-proprietor or those entrusted by him 167 1. The intent of this Statute is to priviledge the Father against common Right 12 Car. 2 cap. 24. To enable the Father to devise the Guardianship of his Son to appoint the Guardian of his Heir and the time of his Wardship under One and twenty 179 2. Such a special Guardian cannot transfer the custody by Deed or Will to any other 179 3. He hath no different Estate from a Guardian in Soccage but for the time the of Wardship 179 4. The Father cannot by this Act give the custody to a Papist 180 5. If the Father doth not appoint for how long time under One and twenty years his Son shall be in Ward it is void for Uncertainty 185 6. The substance of the Statute and sense thereof is That whereas all Tenures are now Soccage and the Law appoints a Gardian till Fourteen yet the Father may nominate the Gardian to his Heir and for any time until his Age of One and twenty and such Gardian shall have like remedy for the Ward as Gardian in Soccage at the Common Law 183 Supersedeas 1. If a priviledged person as an Attorney c. or his Menial Servant is sued in any Jurisdiction forreign to his priviledge he may have a Supersedeas 155 Surplusage 1. Surplusage in a special Verdict 78 Suspension 1. A Suspension of Rent is when either the Rent or Land are so conveyed not absolutely and finally but for a certain time after which the Rent will be again revived 199 2. A Rent may be suspended by Unity for a time and afterwards restored 39 Tayl See Title Warranty 1. SEE an Exposition upon the the Statute de Donis 370 371 372 c. 2. What shall be a good Estate Tayl by Implication in a Devise 262 3. A. having Issue Thomas and Mary deviseth to Thomas and his Heirs for ever and for want of Heirs of Thomas to Mary and her Heirs This is an Estate Tayl in Thomas 269 270 4. A Copyholder in Fee surrenders to the use of F. his Son and J. the Son of F. and of the longest liver of them and for want of Issue of J. lawfully begotten the Remainder to M. here it being by Deed J. had only an Estate for Life but had it been by Will it had been an Estate Tayl by Implication 261 5. The Warranty of the Tenant in Tayl descending upon the Donor or his Heirs is no barr in a Formedon in the Reverter brought by them although it be a Collateral Warranty 364 365 6. The lineal Warranty of Tenant in Tayl shall not bind the Right of the Estate Tayl by the Statute de Donis neither with or without Assets descending 365 Tenures See Title Estates  Testament See Devise 1. A Custody as a Gardianship in Soccage is not in its nature Testamentary it cannot pay Debts nor Legacies nor be distributed as Alms 182 Title 1. When you would