to Charles late Lord Sturton Father to the said Iohn Lord Sturton and the said Charles Lord Sturton disseised the said Lady Sturton and levied a Fine of the said Land to Cottington and his Heirs with Proclamations according to the Statute and warranted it against him and his Heirs And the said Lord Charles dyed before the Proclamations past and the Warranty descended upon the said John Lord Sturton after which and before the Proclamations past the said Lady Sturton entred upon the said Cottington after which the said Lady died and after her death and all the Proclamations past the said John Lord Sturton as Heir in Tail entred and made the Lease to the said Okes upon whom Cottington the Defendant entred as under the right of the said Cottington the Conusee And I perceiving the Court strongly to incline upon the matter of Warranty that it shall bar the entry of the Heir and make a discontinuance against him according to the inference which is taken by Littleton in his Chapter of Discontinuance because the truth was and so acknowledged to the Court although it were omitted in the Verdict that the said Charles Lord Sturton was attained of Felony and Murther and so the blood corrupted between the said Charles and John Lord Sturton wherby in a new Action the Garranty had not hurt the Title of the said Lord John I then moved the Court upon the other point of the Fine with Proclamations and the Court also agreed in this point if the Warranty had not been that yet the Fine with Proclamations shall bar the said John Lord Sturton notwithstanding the entry made by the Lady Sturton were before the Proclamations past because that notwithstanding his regresse made the Reversion remains in Cottington not defeated by his regresse in respect of the Statute whch makes that the Fine remains effectuall against the Heir in Tail if nothing be done by him to undo it before the Proclamations past as by claim regresse and the like but the Act of a stranger shall not help him wherby Iudgment being therupon given against the said Okes the said John Lord Sturton stood satisfied and the Cottingtons enjoy the Land to this day wheras if this opinion of the Court had not been on a new Action the said Sir John might have been relieved against the Warranty And Gaudy said that this was a very good Case for the point upon the Statute in this case Earl of Shrewsbury versus Sir Thomas Stanhop 8. GIlbert Earl of Shrewsbury brought a Scandalum Magnatum against Gilbert Earle of Shrewsbury against Sir Thomas Stanhop in a Scandalum Magnatum Sir Thomas Stanhop Knight and it was upon the Statute Tam pro Domina Regina quam pro seipso c. For that communication was had between the said Sir Thomas and one Francis Fletcher of divers things touching the said Earl the said Francis at such a day and place said to the said Thomas My Lord the said Earl meaning is a Subject innuendo that the said Earl was a Subject of the now Queen the said Sir Thomas then and there said of the said Earl these slanderous words to wit he intending the said Earl is sorry for that meaning that the said Earl was sorry that he was then a Subject to our said Soveraign Lady the Queen that is his grief meaning that it was grief to the said Earl that the said Earl was Subjâ—ct to the Queen to the damage of the said Earl of 20000 l. To which the said Sir Thomas Stanhop said that a question was formerly moved between the said Earl and the Defendant touching the subversion and drawing away of certain Weares heretofore erected by the said Sir Thomas at Shelâ—ord in the said County of Nott. where the Action was brought to oust the River of Trent there that for the subversion therof a Petition was exhibited to the privy Councell of the Queen before the speaking of the said words by certain Inhabitants of the County of Lincoln and divers other places not known to the Defendant with the privity allowance and knowledge of the said Earl which Petition at the time of the speaking of the said words depended before the said Councell not determined wherupon at the day and place comprised in the Declaration there was Communication between the said Defendant and the said Francis Fletcher concerning their purpose to have the said Wears subverted and touching the said Petition upon which the said Francis said to the said Defendant the matter meaning the Petition aforesaid hanging undetermined before the Councell aforesaid is to be heard before the privy Councel meaning the aforesaid Councell of the Queen and what their Honours meaning the Councell aforesaid determine my Lord the aforesaid Earl meaning will willingly obey To which the said Francis then there answered saying My Lord the aforesaid Earl meaning is a Subject upon which the said Defendant they then having speech as well of the said Petition as of the order therupon to be taken by the said Councell answered saying the words comprised in the Declaration meaning that he was sorry and grieved that he was subject to the order to be made upon the Petition aforesaid by the said Councell and averred that this was the same speech upon which the Action was grounded upon which it was demurred in Law and for cause shewn according to the Statute it was alledged that the bar was defective because it is not alledged at what place nor by whom nor against whom the Petition was exhibited and also because that by the Bar the matter of the Declaration is not confessed avoided or traversed and also that the Bar was insufficient And it seemed to Fennor that the matter of the Bar had been sufficient if it had been well pleaded but the Plaintiff alledgeth the words to be spoken in one sence in the Affirmative and the Defendant shews matter also in the Affirmative which proves the words to be spoken in another sence then the Declaration imporrs and two Affirmatives can never make a good Issue and therfore the Defendant ought to have taken a traverse to that which is comprised in the Declaration and for want of this traverse the plea in Bar is not good Gawdy said that the Bar is not sufficient neither in matter nor form not in matter because that wheras Fletcher said that the said Earl was a Subject this can have no other sence but that he was a Subject to the Queen in his Allegiance and her Soveraignty and so much is drawn out of the course of their former speech and therfore the answer which the Defendant made to it refers to his subjection of alleagiance and not to the matter of obedience which he owed to the order of the said Councell and if it cannot have any other sence in good understanding he cannot help himself now by an Innuendo which is in it selfe according to common intendment contrary to that which the nature of the words
guided according to that which may be collected to be the purpose and intent of the parties And therefore if a man make an Estate of his Land without limitation of any Vse or confidence the Law shall say that it is to his own use but if it be upon confidence then it shall be to the Vse of the party to whom it is made or according to the confidence which shâ—ll be absolute or according to that which is limitted which may alter that which otherwise shall be taken upon the generall confidence as 30 H. 6. Fitz. Devise If a man devise Lands to another in Fee he hath the use and Title of it but if it be limitted to his use for his life only the use of the Fee shall be to the Heir of the Devisor for by the limitation his intent shall be taken to be otherwise then it should be taken if this limitation had not been and in as much as in this case the Earl reserves to himself but the use for years it is evident that his intent never was to have the Fee to surrender this Term which perhaps he intended to be for the benefit of his will which shall be defeated contrary to his purpose if the Fee shall be also in him by the death of the sayd Iohn without Issue Male and therefore the sayd Daughters ought to have the Land And on the other part it was argued by Glanvil Serjeant and Egerton the Attorney Generall that this limitation made to the right Heirs is void in the same manner as if a man give Lands to another for life the Remainder to the right Heirs of the Feoffor in this case the Heir shall take by descent as a Reversion remaining to the Feoffor and not as a Remainder devested out of him for the ancient right priviledge the Estate which he may take and therfore he shall take it by descent and not by purchase for the name of right Heir is not a name of purchase betwixt the Ancestor and his heir because that doth instance that he happeneth to be heir he takes it by descent and then it comes too late to take by purchase And another reason that the Daughters shall not have it is because that when Sir Iohn Russell dies without Issue Male which Estate might have preserved the Remainder if it shall be a Remainder there was not any right heir of the sayd Francis Earl of Bedford to take this Remainder because that the sayd Earl survived him And therefore it is to bee resembled to this Case Land is given in Tail the Remainder to the right Heirs of I. G. the Donee dyes without Issue in the life of I. G. in this case albeit I. G. dyes afterwards having an heir yet this heir shall never have the Loud because he was not heir in Esse to take it when the Remainder fell and for the mean Estate for years this cannot preserve a Remainder no more then when Land is given for years the Remainder to the right heirs of I. G. this Remainder can never be good if I. G. be then living because such a Remainder cannot depend but upon a Free-hold precedent at least and therefore the Inheritance here shall go to the now Earl of Bedford by the second assurance And upon consideration of the Case and severall Confirmes had upon this amongst the Iudges and Barens it was at last resolved by all but Baron Clarke that the Daughters shall not have the Mannors in the County of Doâ—set but the now Earl of Bedford and principally upon this reason because there was nor right Heir to take as Purchasor where the mean Estate Taile was determined which was by the Lord Iohn without Issue Male for they agreed that the Remainder to the right Heirs if it be a Remainder cannot be preserved by the mean Estate for years for it ought to be a Free-hold at least which ought to preserve such a Remainder untill there be one to take it by name of Purchasor as right Heir And at this day they did not think there was any diversity between the Case of a Remainder in Possession limitted to the right heir of one and of a Remainder in use so limited over to another Mich. 34. and 35. Eliz In the Kings Bench. 3. IN Ejectione firmae upon speciall verdict the case was thus A man possessed of a Term of years in right of his wife made a Lease for years of the same Land to begin after his death which was the Lessor and afterwards he dyed and his wife survived him and the question was whether the wife shall have the Land after the death of the husband or the Lessee for if the husband had devised the same Land to an estranger yet the Wife shall have it and not the Devisee as it happened in the Case of Matthew Smith who made first such a Devise of a Term of his Wife and yet the Wife had it because that by the death of the husband before which the Devise did not take effect the wife had it in her first Right not altered in the life of her Husband but it was agreed in this case by all the Court that the Lessee shall have it during his Term for as the husband during his life might contract for the Land for the whole term which the wife had in it so might he do for any part of the term at his pleasure for if he may devise the Land for one and twenty years to begin presently he also may make it to begin at any time to come after his Death if the term of the Wife be not expired but for the Remainder of the term of the husband made no disposition during his life the Wife shall have it which by Popham this Case happened upon a specialll Verdict in the County of Somerset about 20 Eli. Where he and Sergeant Baber were Practisers in the Circuit there to wit the Lands were demised to husband and wife for their lives the Remainder to the Survivor of them for years the Husband granted over this term of years and dyed and the question was whether the Wife shall have the term of years or the Grantee and adjudged that the Wife shall have it and it was upon this reason because there was nothing in the one or the other to grant over untill there was a Survivor And the same Law had been if the Wife bad dyed after the Grant and the Husband had survived yet he shall have the term against his own Grant as if a Lease were made for Life the Remainder for years to him which first cometh to Pauls if A. grant this Term for years to another and afterwards A. is the first which commeth to Pauls yet the Grantee shall not have this Term because it was not in A. by any means neither in Interest nor otherwise untill he came to Pauls As if a man make a Lease for life the Remainder to the Right heirs of J. S. J. S. hath
himself in the sayd Will had declared or otherwise as by his Executors or the Survivor of them shall be prescribed And if the sayd Sir Edward and his Heirs shall make default in the assurance of the sayd Land by him to be assured as aforesayd then hee will that immediatly upon such default his Estate and the Estate of the sayd Frances shall cease in the sayd Lands in Croxton c. and then he devise the same Lands to his Executors and their Heirs for ever to the use of them and their heirs upon trust and confidence that they or the Survivor of them and their Heirs shall assure the same or otherwise yearly dispose the profits of them in finding the sayd Preacher and other charitable works as aforesayd and made Edward Peacock Father to the Lessor whose Heir the Lessor is and others his Executors and dyed 9. of the Queen after whose Death all the Executors refuse to be Executors The seven years passe without the establishing of the School and other things according to the Will for the first part of it whereby the Land in Thetford was forfeited to the heir for the Condition broken and within the ten years Sir Edward Cleer made a Feoffment of Land to the value of 35. l. a year to the surviving Executor for the use of the School but with acondition contrary to the Will and no Livery waâ— made upon the sayd Feoffment but it was inrolled of Record in the Chancery whereby the sayd Sir Edward had broken the Condition annexed to his Estate and also during all this time neither the Executors nor their Heirs had done any thing in finding the Preacher or the other works of charity with the profits of the sayd Lands in Croxton or in assuring of it according to the Will and yet the sayd Edward Peacock the Son in September 32. Eliz. being Heir to the surviving Executor entred into the Land in Croxton and demised it to the Plaintiff for seven years upon which the Defendant as Servant and by the commandement of Sir Edward Cleer and of Edmund the Son and Heir of the sayd Frances who was then dead entred upon which entry and Efectment the Action was brought and it was mooved by Godfrey and others that the entry of the Defendants was lawfull first in the right of the sayd Sir Edward because that his Estate by the Statute of 23. H. 8. cap. was without condition or determined because that by this Statute all the uses limited in such a manner are made void because they are in the nature of a Mortmain as may appear by a Proviso at the end of the same Statute for a certain person of Norwich who had Devised Lands for the case of the poor Inhabitants of the same Citty in Taxes and Tallages and for cleansing of streets there and for discharge of toll and Custome within the City all which were good uses and not tending to Superstition and yet if it had not been for the Proviso they had been gon by the body of the Statute And the Statute ordained also that every penalty and thing which shall be devised to defraud this Statute shall be void and if this do not help them yet the Entry made in the right of the sayd Heir of Sir Richard Fulmerston is good for the estates of the sayd Executors are also bound as with a tacite condition that these things shall be performed which are not done and therefore the entry in right of the heir is lawfull for the words Ad propositum ea intentione and the like in a Will are good Conditions which Gaudey agreed vouched the case 28. Sess Pl. but it was after often argument agreed by all the Court that the first exception was to no purpose for they conceived that this Statute was to be taken to extend only to the uses which tend to Superstition as might be collected as well by the words of it in the very body of the Act at the beginning as by the time in which it was made for at this time they began to have respect to the ruine of the authority of the Pope and to the dissolution of the Abbies Chantries and the like And by Popham the Proviso was put in the Statute but for satisfaction of the Burgesses of the same City at this time and not for any necessity as oftentimes it happens And for the other point he sayd that it appeareth fully by the Will that it was not the intent of the sayd Sir Richard to have the Land in Croxton bound with any condition in the possession of his Executors or with any other matter which determine their Estate for the Words that they shall have it upon trust and confidence exclude all constraint which is in every condition and the Will is that they shall have it to the use of themselves and their Heirs for ever which câ—nnot be if it shall be abridged by any Limitation or Determination And he sayd that the Lord Anderson demanded of him a Case which was adiudged in the Common Pleas 29. Eliz. Rot. 639. which was thus One Michel made a Lease for years rendring Rent and for default of payment a re-entry with Covenants on the part of the Lessee to repair the Messuages c. and the term continuing the sayd Michel by his Will in Writing devised the same Land to the sayd Lessee for more years then hee had to come in it rendring yearly the like Rent and under the same Covenants which he now holds it and dyed and afterwards the first term expired the Lessee does not repaire the Houses and the question was whether by this he hath forfeited his term and adjudged that as to this it was not any condition and a Covenant it could not be for a Covenant ought alwaies to come on the part of the Lessee himself which cannot be this case for he doth not speak any thing in the Will to bind him but they are all the words of the Devisor himself which comprised in a Will and it never was his intent to have it to be a condition and therefore void as to the Lessee to bind him either by way of Covenant or Condition so here c. And for the sayd Feoffment enrolled without Livery it was agreed by all that it was not of any force to make the Land to passe to the Executors but the enrolment conclude him to say not his Deed And also that the Executors refuse to be Executors this shall not hinder them to take by Devise as to the Inheritance whereupon it was adjudged that the Plaintiff shall recover as appears Thomson Versus Trafford Hillary Term 35 of Queen Eâ—izabeth IN an Ejectione firmae between John Thomson Plaintiff and Thomaâ— Trafford Defendant the case was thus The President and Schollers of Magdelen Colledge in Oxford 20 Decemb. 8. Eliz Did let a Messuage uâ— the Burrough of Southwark to which no Land appertained to William Staâ—dish for twenty years from the Feast of
Saint Michael next ensuing rendring the ancient Rent and 25. Octob. 21. Eliz they did let the same Messuage to the same Standish for twenty years from the Feast of Saint Michaeâ— then next ensuing rendring also the ancient Rent and 31 August 30. Eliz. The President and Schollers made a new Lease of the same Messuage to Sir George Carew Knight for twenty years from making of the Lease rendring the ancient Rent which Lease was conveyed by mean Assignments to the Plaintiff upon which the Action was brought against the sayd Trafford which had the Interest of the sayd Standish by mean Assignments Popham said that Ipso facto upon the last Lease made and annexed by Standish the first Leass was determined and gone for this last contract dissolves the first when the one and the other cannot stand together as they cannot here because the one intermix with the other and so was the opinion in the Common Bench about 1 Eliz. in the case of the Abby of Barking of which I have seen a Report And here Standish before Michaelmas next after the second Lease made to him could not grant over his first term to be good to the Grantee for if this should be the second term shall not be good to Standish but for the remnant of the years after the first term finished which cannot be because it standeth in the power of the Grantor with the assent and acceptance of the Grantee to make the second Grant good for the whole term to wit from Michaelmas and this cannot be but by a determination in Law of the first term immediatly which is made by his own acceptance and therefore a prejudice to none but himself and Volenti non fit injuria and the first Term cannot have his continuance untill Mich. but is gone presently by the acceptance of the second Lease in the whole for the first contract which was entyre cannot be so dissolved in part but in the whole as to that which the party hath and therefore the first Term as the case is here is gone in the whole to which Clench and Gaudy agreed And if so then this last Lease to Standish was but as a Lease made to begin at a time to come which is made good by the Stat. of 14 Eliz. if it do not exceed the time of 40 years from the making of the Lease for the purpose of this Act was that Colledges and the like shall not make Grants in Reversion albeit it be for a year and the reason was because that by such Grants in Reversion they shall be excluded to have their Rent of the particular Tenants for the time And therfore in the case of the Countesse of Sussex who had a Ioynture assured to her for her life by Act of Parliament with a Provise that the Earle her Husband might demise it for one and twenty yeares rendring the usuall Rent where the sayd Earle had made a Lease for one and twentie yeares according to the Statute within a yeare before the end of the same Lease the said Earle made a new Lease of the same Land to Wroth his Servant for one and twentie yeares to begin after the end of the former Lease rendring the usuall Rent and died the said Countesse avoided this last Lease by Iudgement given in this Court because it shall be intended to be a Lease in Possession which he ought to make by the Proviso from the time of the making of it otherwise by such perverse construction the true intent of the Statute shall be utterly defrauded But here to make a Lease for twentie yeares to one in Possession and to make another Lease to another for twentie yeares to begin after the end of the former Lease is good because that the one and the other do not exceed the fortie yeares comprised in the Statute And the Iustices of the Common Bench the same day at Sergeants Inn agreed to the opinion of Popham for the determination of the whole first Term by the taking of the second Term by Standish Ward versus Downing 2. IN an Ejectione firmae brought by Miles Word against Robert Downing the case was thus Oâ—e Robert Brown was seised of certain Lands in in the County of Norfolk in his Demesne as of Fee which were of the nature of Gavelkinâ— and had Issue George his eldest Son William his middlemost Son and Thomas his youngest Son and being so seised 6 Decem. 1559. made his Testament in writing by which he devised the sayd Tenements in these words Item I give unto Alice my wife the use and occupation of all my Houses and Lands as well free as copy-hold during her naturall life Item I will that George my Son shall have after the decease of his Mother all those my Houses and Lands wherof the use was given to his sayd Mother for the term of her life To have and to hold to him and his Heirs for ever and if the sayd George dye without Issue of his body lawfully begotten then I will my sayd Lands shall in like manner remain unto William my Son and his Heirs for ever And I will that all such money as shall be payd of any Legacy by the sayd George shall be allowed by the sayd William to whom the sayd George shall appoint Item I will that if the sayd George and William depart the world before they have Issue of their bodies lawfully Then I will that all my sayd Houses and Lands shall remain unto Thomas my Son and to his Heirs for ever Item That if the sayd George shall enjoy my sayd Houses and Lands then I will the sayd George shall pay out of the sayd Lands to William and Thomas his Brother 26 l. 13 s. 4 d. that is to say at his first entry into the sayd Lands to pay unto the sayd William his Brother 40 s. and so to pay yearly untill the summ of 13 l 6 s. 8 d. be fully answered and payd and then immediatly to pay unto Thomas his Brother 13 l 6 s. 8 d. to be payd unto the sayd Thomas when the sayd William shall be fully answered by 40 s. a year in like proportion as is aforesayd And if my sayd Son George shâ—ll refuse to pay unto William and Thomas his Brother the summs of 26 l 13 s. 4 d in manner and form as is before limitted Then I will that all my Houses Lands and Tenements with the Appurtenances remain to Willâ—am my Son and his Heirs for ever paying therfore 26 l. 13 s. 4 d. viz. 13 l. 6 s. 8 d. to George my Son and 13 l. 6 s. 8 d. to Thomas my Son in such manner and sort as the sayd George shall pay if he should enjoy the sayd Lands And if it fortune the sayd William to enjoy the sayd Lands then the sayd William shâ—ll pay unto Thomas his Brother the whole summ of 26 l. 13 s. 4 d. as is â—foresayd After which the sayd Robert dyed seised of the sâ—yd Tenements in
albeit he died before the day of payment because this was a summ in grosse limited to be paid to the said Thomas at a certain time But if it shall be taken for a Condition in William he thinks cleerly that the said William ought to have given notice to the Executrix of the said Thomas before he had made his first entry into the Land of the Ten. when he intended to make his entry so that the Executrix might be there at the same time to have made demand of the money which ought to have been done or otherwise there cannot be a refusall in the said William and without his refusall or other default in him the Condition cannot be broken if it had such a relation as to make the payment as George ought to do it And so the Executor of Thomas cannot have notice when William will make his first entry into the Land if he do not give him notice of it and therfore if it shall be a Condition it had been broken on the part of William for want of giving notice to the Executor of the time of his first entry wherby the Executor might have notice of the time to make his demand because without a demand refusall cannot be and the Executor is excused to make demand when he had no notice of the time and therfore the default of William in not giving notice of it shall be taken against him as strongly as if he had made a refusall to pay upon demand for if notice had been given to the Executor and he had demanded the money and William had said nothing to it but omitted to pay it yet this shall be a refusall in Law But of this nothing appeareth in the Verdict whether the Executor had notice given to him or not nor nothing mentioned in the Verdict whether any demand or refusall was made of the money or not and therfore the Verdict as to these points is incertain to judge upon whether it shall be taken to be a Condition in William But it seems as the Verdict is that Iudgment ought to be given against the Plaintiff for the conclusion of the Verdict is upon the entry of the Defendant whether this be lawfull or not and not upon the expulsion or whether upon the other Moyetie his entry was lawfull in right of the said William because they were Tenants in Common 3. IN Trespasse of Assault Battery and Imprisonment made such a day at in the Countie of Cornwall brought by against The Defendant saith that he was Constable of the same Town and that the Plaintiff the said day year and place brought an Infant not above the age of ten daies in his armes and left him upon the ground to the great disturuance of the people there being and that he commanded the Plaintiff to take up the said Infant and to carry it from them with him which the Plaintiff refused to do for which cause he quietly laid his hands upon the Plaintiff and committed him to the Stocks in the same Town where he continued for such a time untill he agreed to take up the Infant again which is the same Assault Battery and Imprisonment of which the Plaintiff complains upon which the Plaintiff demurred Fennor was of opinion that that which the Constable did was lawfull and that it is hard that an Officer shall be so drawn in question for it for this shall be an utter discouragement to good Officers to execute their Offices as they ought to do Popham A Constable is one of the most ancient Officers in the Realm for the conservation of the Peace and by his Office he is a Conservator of the Peace and if he sees any breaking of the Peace he may take and imprisen him untill he find surety by obligation to keep the Peace And if a man in fury be purposed to kill maime or beat another the Constable seeing it may arrest and imprison him untill his rage be passed for the conservation of the Peace And if a man layes an Infant which cannot help it self upon a Dunghill or openly in the field so that the Beasts or Fouls may destroy it the Constable seeing it may commit the party so doing to Prison for what greater breach of the Peace can there be then to put such an Infant by such means in danger of its life And what diversity is there between this case and the case in question for no body was bound by the Law to take up the Infant but he which brought it thither and by such means the Infant might perish the default therof was in the Plaintiff and therfore the Action will not lye And therupon it was agreed that the Plaintiff take nothing by his Writ Hayes versus Allen. 4. TErm Pasch 33 Eliz. Rot. 1308. A Cui in vita was brought in the Common Pleas by Ralph Hayes against William Allen of a Messuage with the Appurtenances in St. Dunstans in the East London in which it was supposed that the said Wil. had no entry but after the demise which John Bradley late husband to Anne Bradley Aunt of the said Ralph whose heir the said Ral was made to Tho. Allen and Jo. Allen and counts accordingly shews how Cosin and Heir to wit Son of Wil. brother of the said Anne Wil. Allen traverse the Demise made to the said Tho. and Jo. Allen and at Nisi prius it was found that the said Jo. Bradley and Anne his wife was seised in their demesn as of fee in right of the said Ann of a Messuage in S. Dunstans aforesaid containing from the North to the South 18 foot and from East to West 12 foot and a half and being so seised during their Marriage by their Deed sealed with their Seals enfeoffed the said Tho. Allen and Jo. Allen therof to hold to them and their heirs to the use of the said Jo. Bradley and Anne his wife for their lives and afterwards to the use of the Church-wardens of S. Dunstans Lond. and of their successors for ever to the use of the poor of the same place and that Livery was made accordingly and that the said Deed was inrolled in the Chancery at Westm and that afterwards the said Anne died and that Jo. Bradley survived her died and that the right of the said Mess descended to the said Ra. as cosin and heir of the said A. And that Sir W. Allen K. was seised of a peece of land in S. Dunst aforesaid containing 6 foot 4 inches contigious and adjacent to the said Mess late the said Jo. Bradleys and A. his wife in his demesn as of fee And that the said Sir Wil. after the said feoffment and before this Writ purchased utterly drew away the said Messuage late the said John Bradleys and Ann his wife and drected a new house upon the Land of the said Sir William and upon part of the Land upon which the other house stood containing from the North to the South thirteen foot from the East
that it shall be then holden as if no Adjournment had been the Essâ—ines had been the first day of Tres Trin. and the full Term had not been untill the fourth day which was the last day of the Term quod nota and so it was of the Adjournment which hapned first at Westminster and afterwards at Hertford from Michaelmas Term now last past Michaelmas Term 35 and 36 Eliz. Gravenor versus Brook and others 1. IN an Ejectione firmae by Edward Gravenor Plaintiff against Richard Brook and others Defendants the case appeared to be this Henry Hall was seised in his Demesne as of Fee according to the custom of the Mannor of A. in the County of D. of certain customary Tenements holden of the said Mannor called Fairchildes and Preachers c. In the third year of Henry the 8th before which time the customary Tenements of the said Mannor had alwaies been used to be granted by Copy of Court Roll of the said Mannor in Fee-simple or for life or years but never in Fee-tail but then the said Henry Hall surrendred his said Copy-hold Land to the use of Joane his eldest Daughter for her life the remainder to John Gravenor the eldest Son of the said Joane and to the Heirs of his body the Remainder to Henry Gravenor her other Son and the Heirs of his body the Remainder to the right Heirs of the said Henry Hall for ever wherupon in 3 H. 8. at the Court then there holden a grant was made by Copy of Court Roll accordingly and Seisin given to the said Joane by the Lord accordingly Henry Hall died having Issue the said Joane and one Elizabeth and at the Court holden within the said Mannor 4 H. 8. the death of the said Henry Hall was presented by the Homage and that the said Daughters were his Heirs and that the Surrender made as before was void because it was not used within the said Mannor to make Surrenders of Estates tails and therupon the said Homage made division of the said Land and limited Fairchilds for the purparty of the said Joane and Preachers for the purparty of the said Elizabeth and Seisin was granted to them accordingly Elizabeth died seised of her said part after which 33 H. 8. Margaret her Daughter was found Heir to her and admitted Tenant to this part after which Joane dyed seised of the said Tenements as the Law will And after the said Margaret takes to Husband one John Adye who with his said wife surrendred his said part to the use of the said John Adye and of his said wife and of their Heirs and afterwards the said Margaret died without Issue and the said John Adye held the part of his said wife and surrendred it to the use of the said Richard Brook and of one John North and their Heirs who were admitted accordingly after which the said John Gravenor died without Issue and now the said Henry Gravenor was sole Heirs to him and also to the said Henry Hall who had Issue Edward Gravenor and dyed the said Edward entred into the said Lands called Preachers and did let it to the Plaintiff upon whom the said Richard Brook and the other Defendants did re-enter and eject him And all this appeareth upon a speciall Verdict And by Clench and Gawdy an Estate tail cannot be of Copyhold Land unlesse it be in case where it hath been used for the Statute of Donis conditionalibus shall not enure to such customary Lands but to Lands which are at common Law and therfore an Estate tail cannot be of these customary Lands but in case where it hath been used time out of mind and they said that so it hath been lately taken in the Common Bench But they said that the first remainder limited to the said John Gravenor here upon the death of the said John was a good Fee-simple conditional which is well warrantes by the custom to demise in Fee for that which by custom may be demised of an Estate in Fee absolute may also be demised of a Fee-simple conditionall or upon any other limitation as if I. S. hath so long Issue of his body and the like but in such a case no Remainder can be limited over for one Fee cannot remain over upon another and therfore the Remainder to the said Henry was void But they said that for all the life of the said John Gravenor nothing was in the said Elizabeth which could descend from her to the said Margaret her Daughter or that might be surrendred by the said Margaret and her Husband and therfore the said Margaret dying without Issue in the life time of the said John Gravenor who had the Fee-simple conditionall nothing was done which might hinder the said Edward Son to the said Henry Gravenor of his Entry and therfore the said Plaintiff ought to have his Iudgment to recover for they took no regard to that which the Homage did 4th year of Hen. 8. But Fennor and Popham held that an Estate tail is wrought out of Copy-hold Land by the equity of the Statute of Donis conditionalibus for otherwise it cannot be that there can be any Estate tail of Copyhold Land for by usage it cannot be maintained because that no Estate tail was known in Law before this Statute but all were Fee-simple and after this Statute it cannot be by usage because this is within the time of limitation after which an usage cannot make a prescription as appeareth 22 23 Eliz. in Dyer And by 8 Eliz. a Custom cannot be made after Westm 2. And what Estates are of Copyhold land appeareth expresly by Littleton in his Chapter of Tenant by Copyhold c. And in Brook Title Tenant by Copyhold c. 15 H. 8. In both which it appeareth that a Plaint lyeth in Copyhold Land in the nature of a Formedon in the Descender at common Law and this could not be before the Statute of Donis conditionalibus for such Land because that before that Statute there was not any Formedon in the Descender at common Law and therfore the Statute helps them for their remedy for intailed Land which is customary by equity Add if the Action shall be given by equity for this Land why shall not the Statute by the same equity work to make an Estate intail also of this nature of the Land We see no reason to the contrary and if a man will well mark the words of the Statute of Westm 2. cap. 1. he shall well perceive that the Formedon in Descender was not before this Statute which wills that in a new case a new remedy may be given and therupon sets the form of a Formedon in Descender But as to the Formedon in the Reverter it is then said that it is used enough in Chancery and by Fitzherbert in his Natura brevium the Formedon in the Descender is founded upon this Statute and was not at Common Law before And the reason is because these Copyholds are now become by usage to be
Defendant had nothing to do there the Defendant shall be excused But here it is expresly alledged that it fell by the weight put upon it which ought to be answered As if a man take an Estate for life or years in a ruinous house if he pull it down he shall be charged in Wast but if it fall of it self he shall be excused in Wast so there is a diversity where default is in the party and where not so here the Defendant ought to have taken good care that he did not put upon such a ruinous floor more then it might well bear if it would not bear any thing he ought not to put any thing into it to the prejudice of a third person and if he does he shall answer to the party his damages Collard versus Collard 5. IN an Ejectione firmae brought by Constantine Collard against Richard Collard the case appeared to be this Thomas Collard was seised in his Demesne as of Fee of Lands in Winkle in the County of Devon called the Barton of Southcote And having two Sons to wit Eustace the eldest and Richard the now Defendant the youngest and the eldest being to be married the said Thomas in consideration of this marriage being upon the said Barton said these words Eustace stand forth I do here reserving an Estate for my own life and my wives life give unto thee and thy Heirs for ever these my Lands and Barton of Southcote after which the said Thomas enfeoffed his youngest Son of Barton with warranty from him and his Heirs the eldest Son enter and let it to the Plaintiff upon whom the Defendant re-enter upon which re-entry the Action was brought and upon a speciall Verdict all this matter appeared But it was not found by the Verdict that the said Thomas Collard the Father was dead and therfore the Warranty was not any thing in the Case And it was moved by Heale that the Plaintiff ought to be barred because it did not passe by way of Estate in as much as a man cannot passe a Freehold of a Land from himself to begin at a time to come and by it to create a particular Estate to himself and in use it cannot passe because that by a bare parole and Vse cannot be raised and by giving my Land to my Son Cosin and the like nothing will passe without Livery for there is not consideration to raise an Vse Fennor The words shall be taken as if he had said here I give you this Barton reserving an Estate for my life although the words of reservation have priority in their time from the speaking of them because a reservation cannot be but out of a thing granted and therfore the reservation shall be utterly void or otherwise ought to be taken according to their proper nature to wit to be in their operation subsequent and so shall not hurt the Grant and therfore are not to be compared to the case where a man grant that after the death of I. S. or after his own death a stranger shall have his Land which Popham granted And Fennor said further that these words being spoken upon the Land as before amount to a Livery Gawdy said That the words as they are spoken amount to a Livery if the words are sufficient to passe the Estate but he conceived that the words are not sufficient to make the Estate to passe to the said Eustace because his intent appeareth that Eustace was not to have the Land untill after the death of him and his wife and therfore of the same effect as if he had granted the Land to the said Eustace after his death and as an Vse it cannot passe because by a bare word an Vse cannot be raised as appeareth in divers Reports Mich. 12 13 Eliz. which is a good case to this purpose But to say generally that an Vse cannot be raised or charged upon a perfect Contract by words upon good consideration cannot be Law and therfore it is to be considered what the Law was before the Statute of 27 H. 8. And I thinke that none will deny but that by grant of Land for money before this Statute an Vse was raised out of the same Land for a bargain and sale of Land for money and a grant of Land for money is all one and no difference between them And is not a grant of Land made in consideration of marriage of my Son and Daughter as valuable as a grant of it for money It is cleer that it is and much more valuable as my blood is more valuable to me then my money and therfore it is absurd to say that the consideration of money raise or change an Vse at Common Law and not such a consideration of marriage And in such a case at Common Law there was not any diversity that the party who so grant or hargain for the one or the other considerations was fâ—ised of the Land granted or bargained in use or possession but that the Vse by the Contract was transferred according to the bargain in both cases where there is a consideration And where through all the Law shall it be seen that of any thing which might passe by contract there need any other thing then the words which make the contract as writing or the like testifying it And that the Law was so it appeareth by the Statute of Inrolements of bargains and sales of Land made 27 H. 8. which enacts that no Freehold nor Vse therof shall passe by bargain and sale only unlesse it be by deed indented and enrolled according to the Statute Ergo if this Statute had not been it had passed by the bargain and sale by bare words and in as much as the Statute enacts this in case of bargain and sale only the other cases as this case here are as it was before at Common Law And by an exception at the end of the same Statute London is as it was at Common Law and therfore now Lands may passe there at this day by bargain and sale by word without deed for it is out of the Statute And how can we say that the Statute of Vses does any thing to alter the Common Law in this point by any intent of the makers therof wheras at the same Parliament they made an especiall Law in the case of bargain and sale of Lands And at this day for the Lands in London notwithstanding the Statute of Vses the Law hath been put in practice and alwaies holden as to the Lands there to be good if sold by bare Parole as it were at Common Law And I have heard it reported by Manwood late chief Baron of the Exchequer that it was in question in the time of King Edw. the 6th whether the use of a Freehold of Land will passe upon a Contract by Parole without Deed in consideration of marriage upon which all the then Iustices were assembled upon a doubt rising in a case hapning in the Star-chamber and then
Richard he made assurance by Fine of his Lands being 174 l. a year viz. Of part therof of the value of 123 l. a year of which part was holden of the Queen by Knights Service in Capite to the use of himself for his life and after his decease to the use of the said William and Margaret and the Heirs of the body of the said William begotten on the body of the said Margaret and for default of such Issue to the use of the right Heirs of the said William And of the residue therof being also holden in Capite of the Queen to the use of himself for his life and after his decease to the use of the first Issue Male of the said Richard and to the Heirs Males of his body and then to other Issues of his body and for default of such Issue to the said William and Margaret and the Heirs of the body of the said William on the body of the said Margaret lawfully begotten and for default of such Issue to the right Heirs of the said William with this Prouiso That it shall be lawfull for the said Richard to make a Joynture to his wife of the Lands limited to his Issue Males and for making of Leases for 21. years or three lives for any part of the said Land rendring the ancient Rent except of certain parcels and that William died without Issue and that Gilbert Littleton was his Brother and Heir and that the said Margaret married the said George Littleton youngest brother to the said William which are yet living And that the said Richard married Dorothy and made her a Joynture according to the Proviso And that the said Richard had Issue Iohn Smith and died the said Iohn being his Son and Heir and within age After which a Melius inquirendum issued by which it was found that the said Margaret was the Daughter of the said Richard and that the said Land was of the value of 12000 l. at the time of the assurance And how much of the Land shall be in ward and what Land and what the Melius inquirendum makes in the case was the question put to the two chief Iustices Popham and Anderson who agreed that the Queen now shall have the third part as well of that which was assured to William and Margaret immediatly after the death of the said Richard as of that which was limited to Dorothy for the life of the said Margaret for although money were paid yet this was not the only consideration why the Lands were assured but the advancement of the Daughter and now by the surviving of the said Margaret shee shall be said to be in the whole which was assured to her by her Father and for her advancement and the Land as it appears was of greater value then the money given and may as well be thought to be given for the Remainder of the Fee And agreeable to this was the case of Coffin of Devonshire about the beginning of the Raign of the now Queen which was that the said Coffin for moneys paid by one Coffin his Cosin having but Dâ—ughters himself conveyed his Land to the use of himself and his wife and to the Heirs Males of his body and for default of such Issue to the use of his said Cosin and his Heirs for which his said Cosin was to give a certain sum of money to the Daughters for their marriage Coffin dies his said Daughters being his Heirs and within age and were in ward to the Queen the Lands being holden by Knights Service in Capite And the third part of the Land was taken from the wife of Coffin for the life of the said wife if the Heirs continue so long in Ward And it was also agreed by them and the Councell of the Court that the Melius inquirendum was well awarded to certifie that the said Margaret was the Daughter of the said Richard of which the Court could not otherwise well take Conusance for they thought that it was not matter to come in by the averment of the Attorney-generall as Dyer hath reported it But now by the Statute it ought to be found by Inquisition and being a thing which stands with the former Inquisition it ought to be supplied by the Melius inquirendum for the same Statute which gives the Wardship in case where Land is conveyed for the advancement of the Wife or Infants or for the satisfaction of Debts and Legacies of the party by the implication of the same Statute this may be found by Inquisitton and if it be omitted in the Inquisition it ought to be found by a Melius inquirendum but not to come in by a bare surmise And therfore if in the Inquisition it be found that the Ancestor had conveyed his Land by the Melius inquirendum it may be found that it was for the payment of his Debts or Legacies or that the party to whom or to whose use it was made was the Son or Wife of the party that made it and that by the very purport of the Statutes 32. 34 H. 8. as by Fitzherbert if it be surmised that the Land is of greater value then it is found a Melius inquirendum shall issue and so shall it be if it be found that one is Heir of the part of the Mother but they know not who is Heir of the part of the Father so if it be not found what Estate the Tenant had or of whom the Land was holden so upon surmise made that he is seised of some other Estate or that he held it by other Services by Fitzherbert a Melius inquirendum shall Issue and upon this order given it was decreed accordingly this Term. Morgan versus Tedcastle 4. IN the same Term upon matter of Arbitrement between Morgan and Tedcastle touching certain Lands at Welburn in the County of Lâ—ncoln put to Popham Walmesley and Ewens Baron of the Exchequer Wheras Morgan had granted to Tedcastle a 100. acres of Land in such a field and 60 in such a field and 20. acres of Meadow in such a Meadow in Welburn and Hanstead in which the acres are known by estimations or limits there be shall take the acres as they are known in the same places be they more or lesse then the Statute for they passe as they are there known and not according to the measure by the Statute But if I have a great Close containing 20. acres of Land by estimation which is not 18. And I grant 10. acres of the same Close to another there he shall have them according to the measure by the Statute because the acres of such a Close are not known by parcels or by meets and bounds and so it differeth from the first case And upon the case then put to Anderson Brian and Fennor they were of the same opinion Quod nota Humble versus Oliver 5. IN Debt by Richard Humble against William Oliver for a Rent reserved upon a Lease for years the case was
And if this doth not passe nothing can passe which was in the Tenure of the said Brown because he had nothing in the places comprised in the Patent But it was agreed by all the Court that it shall not passe by the said Patent in this case for the word illa is to be restraind by that which follows in the Patent where it depends upon a generality as here and that it refers but to that in Wells as the liberty of that which was parcell of the possessions of the said Hospitall and in the Tenure of the said John Brown And if it were not of these possessions or not in Wells c. or not in the Tenure of the said John Brown it shall not passe for the intent of the King in this case shall not be wrested according to the particular or the value which are things collaterall to the Patent but according to his intent comprised in or to be collected by the Patent it self And Popham said that by Grant of omnia terras Tenementa Hereditamenta sua in case of the Queen nothing passe if it be not restraind to a certainty as in such a Town or late parcell of the Possessions of such a one or of such an Abbey or the like in which cases it passeth as appeareth by 32 H. 8. in case of the King But if it be Omnia terras tenementa sua vocat D. in the Tenure of such a one and in such a Town and late parcell of the possessions of such a one there albeit the Town or the Tenant of the Land be utterly mistaken or that it be mistaken of what possessions it was it is good for it sufficeth that the thing be well and fully named and the other mistakes shall not hurt the Patent And the word of Ex certa scientia c. will nof help the Patent in the principall case And the case of 29 E. 3. is not to be compared to this case for it was thus The King granted the Advowson of the Priory of Mountague the Prior being an Alien to the Earl of Salisbury and his Heirs for ever And also the keeping and Farm with all the Appurtenances and Profits of the said Priory which he himself had curing the War with the keeping of certain Cellâ— belonging to the said Priory the said Earl died William Earl of Salisbury being his Son and Heir and within age wherupon the King reciting that he had seised the Earls Lands into his hands after his death for the Nonage of the Heir he granted to the said Earl all his Advowsons of all the Churches which were his Fathers and all the Advowsons of the Churches which belong to the Prior of Mountague to hold untill the full age of the said Heir quas nuper concessit prefat Comiti patri c. In which case although the King had not granted the Advowsons to the said Earl the Father aforesaid by the former Patent because no mention was of the Advowsons therof yet they passe by this Patent notwithstanding that which follows after to wit and which he granted to the Father of the Grantee But there it is by a Sentence distinct and not fully depending upon the former words as here to wit Omnia illa Messuagia c in Wells in the Tenure of the party parcell of the Possessions of such an Hospitall or Priory Quod nota and the difference And because the Defendant claimed under the first Patent and the Plaintiff by the latter Patent it was agreed that the Plaintiff should recover Which you may see in the Kings Bench. Harrey versus Farcy 7. IN an Ejectione firmae brought by Richard Harrey Plaintiff for the Moyety of certain Tenements in North-petherton in the County of Somerset upon a Lease made by Robert Bret against Humfrey Farcy Defendant upon not guilty and a speciall Verdict found the case appeared to be this to wit That Robert Mallet Esquire was seised of the said Tenements in his Demesne as of Fee and so seised demised them to John Clark and Elianor Middleton for term of their lives and of the longer liver of them after which the said Tenements amongst others were assured by Fine to certain persons and their Heirs to the use of the said Robert Mallet for term of his life and after his decease to the use of John Mallet his Son and Heir of his body and for default of such Issue to the use of the right Heirs of the aid Robert Mallet After which the said Robert Mallet having Issue the said John Mallet Christian and Elianor Mallet died the said John Mallet then being within age and upon Office found in the County of Devon for other Lands holden of the Queen in Capite by Knights Service was for it in Ward to the Queen Afterwards the said John Mallet died without Issue during his Nonage and the Lands aforesaid therby descended to his said two Sisters to whom also descended other Lands in the County of Devon holden of the Queen in Capite by Knights Service conveyed also by the same Fine in like manner as the Lands in North Petherton the said Christian then being of the age of 22. years and the said Elianor of the age of 15. yeares upon which the said Christian and Elianor 12. Novemb. 31 Eliz. tendred their Livery before the Master of the Wards and before the Livery sued the said Christian took the said Robert Bret to husband and the said Elianor took to husband one Arthur Ackland after which in the Utas of the Purification of our Lady 32 Eliz. the said Robert Bret and Christian his wife levied a Fine of the said Tenements in North-petherton amongst others to George Bret and John Pecksey Sur conusance de droit come ceo que ils ont de lour done by the name of the Moyety of the Mannor of North petherton c. with warranty against them and the Heirs of the said Christian against all men who tendred it by the same Fine to the said Robert Bret and Christian and the Heirs Males of their bodies the remainder to the Heirs Males of the body of the said Christian the remainder over to the right Heirs of the said Robert Bret which Fine was engrossed the same Term of S. Hillary and the first Proclamation was made the 12th day of February in the same Term the second the first day of June in Easter Term 32 Eliz. The third the 8th day of July in Trinity Term next And the fourth Proclamation was made the 4th day of October in Michaelmas Term next after And the said Christian died without Issue of her body The 9th day of February 32 Eliz. between the hours of 3. 7. in the afternoon of the same day And the 22. of March 32 Eliz. the said Robert Bret by his writing indented dated the same day and year for a certain summ of money to him paid by the Queen bargained and sold gave and granted the said Teuements to the
be avoided and in the same manner here But Popham took a diversity where the Possession or the Estate of the Queen is determined and where not for where the Estate is determined there the Subject may enter into the Land without Office or ouster le main But where the Possession continues there the party shall not come to it unlesse by petition Monstrans de droit officio or the like and therfore hee said that if the Queen had an Estate pur auter vie or depending upon any other Limitation if it be determined according to the Limitation the party who hath interest may enter so in the case of the Devise put before And if a Lease be made for life the Remainder in Tail the Reversion in Fee and he in the Remainder in Tail levy a Fine Sur conusance de droit come ceo que il ad de son done to a stranger with proclamations according to the Statute and afterwards the stranger convey the Remainder to the Queen her Heirs and Successors and after the Tenant for life dies and after he in the Remainder in tail dies without Issue now may he in the Remainder in Fee enter because the Estate of the Queen is determined But here the Queen hath a Fee-simple in her self but determinable upon the Estate-tail which yet remaineth which Fee-simple in Reversion cannot be divested out of the possession of the Queen but by matter of Record of so high nature as it is in her to wit by Petition Monstrans de droit or the like As if a Reversson or Remainder be alienated in Mortmain the claim of the Lord sufficeth therâ— to vest the Reversion in the Lord for the Alienation but if the Reversion or Remainder of which such a claim was made be conveyed to the King his remedy is now by Office Monstrans de droit or Petition for claim will not now serve him for this shall be to divest the possession out of the Queen which by such means cannot be done no more then where a Reversion or Remainder is granted to the Queen upon Condition but he ought to have an Office to find the performance of it if it be to be performed by matter in pais and without Monstrans de droit or otherwise it shall not be divested out of the Queens possession yet in the case of a common person a claim will divest it out of them but not so of the Queen And these cases Gawdy agreed but he conceived that in the case in question the claim made determines the Estate of the Queen which is made by means of the Fine upon the Statute And Popham denied the case put in 7 H. 6. to be Law as it is put upon the opinion of Strange there for it is cleer that the claim there does not divest any possession which was in the King by means of the Wardship and if this be not therby defeated the claim does not help the Disseisee against the Descent and this appeareth fully by Littleton who saith so of a Claime which avoids a Descent to wit that it ought to be such upon which the Disseisee may upon every such Claim made have an Action of Trespasse or Assise against the Dissessor or him who is in possession if he continue his possession after such Claim made which cannot be in this case where the possession is in the King which cannot be defeated by such a Claim And in the Lord Dyer where the Feoffee or Mortgagee of Lands holden of the Queen in Capite by Knights Service died before the day of Redemption his Heir being within age wherby upon Office found the Queen had the Wardship of the body and land of the Heir after which the Mortgagee at the day of redemption made payment and of this also an Office was found yet he could not enter either before or after Office but upon Monstrans de droit therupon he had his Ouster le main And the reason why a Claim shall serve in this case between common persons is because that by such Claim the thing it self is devested out of him who had it before and therby actually vested in him who made the claim As where a Villain purchase a Reversion by the Claim of the Lord the Reversion is actually in him as it is of a Possession by Entry But where he is put to his Claim to devest any thing out of a common person he is put to his Suit to devest it out of the Queen Aad to say that Bret should not take advantage of this Conveyance made to make it good by the Fine I think the Law to be clear otherwise as to this point for the Statute of Fines was made tor the security of Purchasors and Possessors of Land and therfore taken more strongly against them who pretend Right or Title and for the greatest advantage that may be for the Possessors of Lands and therfore the Possessor by what ever means he can may make his Fine to be forceable And therfore the Fine upon this Statute differeth much from a Fine at Common Law for where at Common Law an Infent being a Disseisor was disseised by one who levies a Fine and the year and the day passe without claim of the first Disseisee now was the first Disseisee barred yet if afterwards the Infant who was not bound by the Fine enter the first Disseisee may enter upon him because that by this entry the Fine at Common Law was utterly defeated But now by the Statute such a Fine being levied with Proclamations the first Disseisee not pursuing according to the Statute is barred for ever And although the Infant enter at full age and undoes the Fine as to himself yet this Fine remains alwaies to bar the first Disseissee and makes that the Infant hath now Right against all the world and so now takes advantage therof And this is the intent of the Statute for the repose of Controversies and Suits and the quiet of the people And if I procure a Fine to be levied on purpose to bar another of his Action which he may have against me for the Land yet I shall take advantage of this Fine and the other shall have no advantage against me because of this Covin for if this should be admitted it will countervail the benefit which is intended to be by means of the Statute of Fines And if a Disseisor enfeoffee another upon Condition to the intent that a Fine with Proclamations shall be levied to the Feoffee to bar the Disseisee and after the Disseisee is barred the Disseisor enter for the Condition he shall yet take advantage of the Fine against the Disseisee And Popham put a case which was in this Court 23 Eliz. upon a speciall Verdict which was between Okes Plaintiff upon the Demise of John late Lord Sturton of Cottington which was this The Lord Sturton was Tenant for life of certain Lands in Lighe in the County of Somerset the remainder in Tail
to be given for the Plaintiff Gawdy conceived that it is executed by the intent but not by the letter of the Statute for the purpose was to remove all the Estate from the Feoffee and to put it in Cestay que use wholly to wit in possessions to the Vses which were in Esse and in aleyance as to the Vses which were to come and contingent and now by the same Statute the contingency of the possession shal go in licence of the contingent Vse and now an Vse limited to one for life with Remainder over to the Heirs of the body of I. S. or to the first Son of I. S. shall be in the same manner as if Land at this day had been letten to one for life with Remainder over to the Heirs of the body of I. S. or to the first Son of I. S. and not otherwise for the quality which he had in the Vse the same by the very letter of the Statute he shall now have in the possession and Estate of the Land and the Statute is not to undo any Vse but to transfer an Estate in the Land to the Vse But he said That by the Feoffment made to Christopher the Contingent remainder which was devested in Stretchly and Iohn Chudleigh depending upon the Estate which Sir Iohn Saintleger and his Co-feoffees had for the life of Christopher is utterly gone and destroyed in the same manner as where a Lease is made for life the remainder to the right Heirs of I. S. or to the Heirs of the body of I S. if the Tenant for life dies or aliens wherby he makes a forfeiture and determines his Estate in the life of the said I. S. his Heir shall never have the Land by the remainder afterwards because he was not in Esse as an Heir at the time when the Estate ended for there cannot be a remainder without a particular Estate neither can it stand or be preserved And as in this case without a particular Estate of Free-hold a Remainder cannot be no more in the case now in question being now become by means of the Statute as if it had been an Estate executed in possession and for this cause only he conceived that Judgment ought to be given against the Plaintiff And Clench agreed with this opinion in all and both of them agreed if there be none to take the Vse according to the limitation at the time when it falleth to be in Possessions that he shall never take it although it happen to be in Esse afterwards Clark said that Uses were not at Common Law but grew by sufferance of time as appeareth by the words of the Statute it self and the mischief and subtlety which was before this Statute was not in the Fine Feoffment or other Assurances of Land but by means oâ— the Uses limitted therupon contrary to that which was used in the ancient course oâ— the Common Law and the Statute was made to reduce the Common Law to its ancient force and course and therfore ought to conceive such a construction as may agree with the purpose of the makers of the Statute and therfore the best construction of this Statute is not to execute other manner of Uses but in some cases to extinguish them as where it is such as will make the case in as ill or worse condition then it was before the making of the Statute It hath been agreed by all that the Statute doth not execute any Use which was suspended at the time of the making of the Statute as by reason of a Disseisor or the like hapning before and if it doth not execute the Use which is in suspence for the right which he had in the Use how can it execute the Use which hath not any being for in such cases of Infants not born as here untill they be in Rerum natura the Use cannot have any being And in the same manner in all cases where the Vse is not to rise but upon a future contingent And what good shall this Statute do if these leaping Vses shall arise without being impeached Nothing but alwaies nourish a Viper in the bosom of the Law which is quite against the intent of the makers of the Statute The Law was made to preserve peace amongst the Subjects and to assure their Possessions as many other Statutes did that were made about this time as the Statutes of Fines Wills and others But if the exposition of this Statute shall be as the other side hath taken it it will make the confusion which will happen therupon intollerable and much worse then it was before the Statute was made and as Walsh said if no assurance can be made to be forcible against such a contingent Use this will make it worse then it was before And hesaid that it was not to be compared to the interest of Lands to begin at a time to come nor to the case where a man devise that his Land shal be sold in which case be shall not be impeached by any manner of assurance to be made in the mean time by the Heir and the reason is because the Vendee takes by the Will under the Estate of the Heir and not by the sale and therfore upon the matter he conceived that the Plaintiff ought to be barred Periam said that Uses were at Common Law and to prove it he vouched 24 H. 8. abridged in Brook And he said that there have been alwaies trusts Ergo Uses ab initio but they had not such estimation at the beginning as they have had by continuance of time and so it was of Copyholds And these Uses at Common Law bind but in privity according to the trust but do not bind in the possession of him who cometh to the Land in the Post But now by the Statute all trusts are gone and the Estate of the Land it self transferred to the Use and now the Use guides the Land and not the Land the Use And the Statute did not intend to destroy any Use but to bring it back to the Possession according to the course of the common Law and to avoid the fraud And as before the Statute the Use it self in such a case of Contingency was in obeyance for the time so now the Estate it self is in obeyance by the Statute which wills that he shall now have an Estate in the Land it self of such a quality as he had before in the Use for the Statute puts all cleerly out of the Feoffees and it is not inconvenient to have a Possession so to a Contingent Use and if it had not been in the words of the Statute yet as hath been sayd it shall be so taken by the intent of the Statute for it never was the intent of the makers of the Statute to do wrong to any by means of the Statute And therfore he put the case of Cramner who made a Feoffment to the use of himself for his life and after his decease to the use
in his custody and offered to the said Sheriff to put him in the Indenture amongst his other Prisoners delivered to the new Sheriff but would hâ—ve had the said old Sheriff to have sent for the said new Sheriff to have taken him into his custody but the new Sheriff refused to receive him unlesse Dabridgecourt would deliver him into the common Gaol of the County which was in the Town of Warwick wherupon afterwards the Prisoner escaped And Dabridgecourt was charged with this Escape and not the new Sheriff for he is not compellable to take the Prisoners of the delivery of the old Sheriff but in the common Goal of the County and the old Sheriff remains chargeable with the Prisoner untill he be lawfully discharged of him and if the Sheriff dies the party shall be rather at a prejudice then the new Sheriff without cause charged with him And in such a case the party who sued the execution may help himself to wit by the remaining of the body by a Corpus cum causa wherby he may be brought to be duly in execution and this under a due Officer And Anderson Periam and other Iustices were also of opinion that the said Skinner and Catcher are to be charged with the escape in the principall case wherupon Iudgment was given for the Plaintiff which was entred Hillar 34 Eliz. Rot. 169. in the B. R. Fulwood versus Ward 2. IN a Writ of Annuity brought in the Common Pleas by George Fulwood Plaintiff against William Ward Defendant the Case was thus The Queen was seised of a Barn and Tithes of Stretton in the County of Stafford for the life of the Lord Paget and being so seised demised it by Letters Patents dated 21. June 29 Eliz. to the said William Ward for 21. years wherupon the said Ward by Writing dated 30. Iune 29 Eliz. granted to the said Plaintiff an Annuity or yearly Rent of 10 l. out of the said Barn and Tithes for 15. years then next ensuing payable yearly upon the 8. day of November with clause of Distresse The Lord Paget died the first day of March 32 Eliz. and for the Arrearages after his death the Plaintiff brought this Writ of Annuity and for the difficulty therof in the Common Pleas the Case came this Term to be argued before all the Iustices and Barons at Serjeants-Inn in Fleetstreet where it was agreed by Walmsley Fennor and Owen that the Annuity was gone by the determination â—â— his Estate in the Land who made the Grant for they said that presently upon the Grant made as before it was a Rent-charge for by such a Rent granted in Fee the Fee shall be in his Heirs albeit the Grantee dies before any Election made and such a Rent is payable from the beginning at the Land as appeareth by 12 E. 4. And by grant of Omnia terras tenementa hereditamenta such â— Rent will passe ergo it is a Rent-charge and not an Annuity untill the Election made and by the determination therof in the nature of a Rent the Election is gone as by Babington and Martin 9 H. 6. by the recovery of Lâ—nd charged with such a Rent by elder Title the Annuity is gone as it seeâ—s by their opinion and by them and by Littleton upon a Rent-charg◠〈◊〉 with Proviso that he shall not charge the person of the Grantor 〈…〉 exclude the charge of the person which proves that the Land is charâ—â—â— Originally and not the person for otherwise the Proviso would be void for the repugnancy And if so whensoever the Land is discharged as by 〈…〉 â—â—â—cent or the like the person therby is also discharged and therfore â—he Iuâ—gment here shall be that the Plaintiff shall be barred But by the chief Iustices chief Baron and all the other Iustices and Barons the Plaintiff ought to have Iudgment in this case to recover the Annuity for the Law gives him at the beginning an Election to have it as a Rent or an Annuity which matter of election shall not be taken from him but by his own Deed and folly as in case where he purchase part of the land charged in which case by his own Act he hath excluded himself of his Election But if a Feoffee upon condition grant a Rent-charge and presently break the Condition wherupon the Feoffor re-enter shall not the Feoffee be charged by Writ of Annuity surely it shall be against all reason that he by his own act without any folly of the Grantee shall exclude the Grantee of his Election which the Law gives at the beginning And they denied the opinion of 9 H. 6. to be Law But if the Disseisor grant a Rent-charge to the Disseisee out of the Land which he had by the Disseisen by his re-entry before the Annuity brought the Annuity is gone for this was his own act yet in effect all of them agreed that Prima facie it shall be taken as a Rent-charge of which the Wife shall be endowed as hath been said which passe by grant of Omnia hereditamenta and which is payable at the Land but the reason is because it is expresly granted out of the Land and also for the presumption of Law that it is more beneficiall for the Grantee to have it in such a degree then in the other But neither the presumption of Law nor the expresse Grant therof as a Rent shall not take away from the Grantee the benefit of his Election where no default was in him but that upon his Election he may make it to be otherwise as ab initio And therfore by Popham If a Rent-charge be granted in tail the Grantee may bring a Writ of Annuity and therby prejudice his Issue because that then it shall not be taken to be an Intail but as a Fee-simple conditionall ab initio And if a Termer for two years grant a Rent-charge in fee this as to the Land is but a Rent charge for two years and if he avow for it upon the determination of the Term the Rent is gone but by way of Annuity it remains for ever if it be granted for him and his Heirs and assets descend from him who granted it And if a Rent-charge be granted in fee and doth not say for him and his Heirs if the Grantee brings his Writ of Annuity the Heir shall never be charged therwith yet if he had taken it as a Rent-charge the Land had been charged with it in perpetuity And by him the cause why the Proviso that he shall not charge the person of the Grantor upon the grant of a Rent-charge is good is because the person is not expresly charged by such a Grant but by operation of Law But in such a case a Proviso that he shall not charge his Land is meerly void for the repugnancy because there the Land is expresly charged by precised words and therfore if it be expresly comprised in such a Grant that the Grantee may charge the Land or the person of the
by reason of the Waiver in the Devisor shall be sole seised ab initio for the said Elizabeth might have had Dower therof if she would as in the like case it is adjudged in 17 E. 3. 6. and therfore a sole Seisin in the Husband and the descent to the Heir in such a case upon the Waiver shall take away the entry of him who hath right to it And therfore the case now for the Mannor of Hinton is within the very letter of the Statute as well for the sole Seisin which was in the Devisor as for the immediate descent which was from the Devisor to his Heir and therfore remains to the Heir for a good third part of the Inheritance of the Devisor by the very letter of the Statute and if the Letter had not helped it yet it shall be helped by the purport and intent of the Statute which ought to be liberally and favourably construed for the benefit of the Subject who before the Statute of Vses might have disposed of his whole Land by reason of Vses by his Will and the Statute of 27 H. 8. excludes him therof and therfore the Statute of 32. 34 H. 8. are to be liberally expounded as to the Subject for the two parts and the rather because it appeareth by the preamble of the Statute of 32 H. 8. that it was made of the liberality of the King and because that by 34 H. 8. it appeareth that it was made to the intent that the Subject shall take the advantage and benefit purposed by the King in the former Statute by all which it appeareth as they said that the said Statutes shall be liberally expounded for the advantage of the Subject and for his benefit and not so strictly upon the letter of the Law as hath been moved and so they concluded that Iudgment ought to be given for the Plaintiff Popham and Anderson the two chief Iustices and all the other Iustices and Barons held the centrary and that Iudgment ought to be given against the Plaintiff and that by the very letter and purport of the Statutes of 32 34 H. 8. for they said they are to consider what Estate the Devisor hâ—d â—â— the Land at the time of his Devise made without regard to that which might happen by matter Ex post facto upon the Deed of another and if it had beâ—n demanded of any apprised in the Law at the time when the Will wâ—s made what Estate the Devisor then had in the Mannor of Hinton 〈◊〉 is so unlearned to say that he had other Estate in it then joyntly with his Wife And if so it follows that this Mannor was then out of the letter and intent of the Law for he was not then sole seised therof nor seised in coparcenary nor in common and by the words he should be sole seised in Fee-simple or seised in Fee-simple in coparcenary or in common It appeareth that the intent of the Statute was that he shall have full power of himself without the means or aid of another to dispose of the Land of which he is by the Statute to make disposition or to leave it to his Heir and this he hath not for the Mannor of Hinton here And further the words of 32 H. 8. are That the Devisor hath full power at his Will and pleasure to devise two parts of his Land so holden as here and this is to be intended of such Land of which he then had full power to make disposition â—nd this he could not then do for the Mannor of Hinton And further the words of 34 H. 8. are that the devision for the parts shall be made by the Devisor or Owner of the Land by his last Will in writing or otherwise in writing and in default therof by commission c. And can any say with reason that it was the intent of the Statute that he shall make the Devision of other Lands then of those of which he then had full power to devise or to leave to his heir without any future accident to help him or the mean of Anthony by matter Ex post facto It is cleer that reason cannot maintain it And the words following in the Act which are That the King shall take for his third part the Land which descended to the Heir of the â—state tail or of Fee-simple immediatly after the death of the Devisor much enforce the opinion on this side for it cannot be said upon the death before the Waiver that this Mannor of Hinton was immediatly descended ergo it ought not to be taken for the third part And further the words are If the Lands immediatly descended upon the death of the Devisor c. do not amount to a full third part that then the King make take into his hands so much of the other Lands of the Devisor as may make a full third part c. wherby it is cleer that in this case if the wife had not waived her Estate for ten years after the death of the Devisor that for all this time the Queen could not meddle with the Mannor of Hinton and therfore in the mean while she might well have so much of the Mannor of Thoby which might well have made a full third part to her and for so much which she took the Will was alwaies void which shall never be altered nor made good by any Waiver Ex post facto And although the Waiver of the Fame put the Inheritance entirely in the Devisor and in his Heir in relation to divers respects yet as to other respects he shâ—ll not be said in them with such relation and especially upon the Statute in which we now are to respect the power as it was in him at the time of his death before this future Contingent And by Popham If the exposition on the other side shall hold place upon the Statute perhaps a man shall not see by the space of six years or more after the death of a Devisor how his Devise shall work As a Feoffment in Fee is made to I. S. and a Feme Covert and their Heirs of 10 l. Land holden by Knights-service in Capite which I. S. hath 20 l. Land in fee so holden also I. S. makes a Devise of his 20 l. Land the Husband lives 60. years after none will or can deny but that for this time the Devise is not good for two parts now the Husband dies and the Wife waives the Estate made to her this puts the Inheritance therof in the Heir of I. S. with relation to divers respects but not to this respect to make the Will now good for the whole 20 l. Land which therfore was void for the third part therof for the Will which once was void by matter Ex post facto after the death of the Devisor cannot be made good And by him the descent in such a case is not such that it shall take away the entry of him who hath right because
but as referring to the provision subsequent in the Statute in which case this matter shall be used but as the Proviso it self shall be and according to this it hath been commonly put in practise by all the Iustices in all places after the Statute untill now And they agreed also that it need not be shewn whether he were made a Iesuit or Priest c. either beyond Sea or within the Realm because whersoever it was it is within the Law if he were made by the pretended authority of the See of Rome But they agreed that it ought to be comprised in the Indictment that he was born within this Realm or other Dominions of the Queen but need not to shew where but generally Et quod I. S. natus infra hoc Regnum Angliae c. And the Indictment ought to comprise that he was a Iesuite or Priest c. by authority challenged or pretended from to the See of Rome because that this is in the body of the Act without such reference as in the other point and according to this resolution the proceeding was against the said Southwell Easter Term 37 Eliz. Pigots Case 1. AFter the death of Valentine Pigot Esquire a Commission was awarded in nature of a Mandamus and after the death of Thomas Pigot Father of the said Valentine a Commission was awarded in nature of a Diem clausit extremum and the said Commissions were awarded to one and the same Commissioners who by one Inquest took but one Inquisition upon these severall Commissions in this form Inquisitio indentata captâ— apud c. virtute Commiss in natura brevis de diem clausit extremum eisdem Commiss direct c. ad inquirendum post mortem Thomae Pigot Ar. nuper defuncti patris predict Valentin per sacramentum c. Qui dâ—cunt c. After which all the points of the Câ—mmission after the death of the sâ—id Valentine are enquired of but for the Commissions after the death of the said Thomas Pigot it is imperfect in some points as who is his Heir c. is not found And by Popham and Anderson this Inquisition is void as to Valentine as well as for Thomas for their authorities which are the Commissions are by severall Warrants which cannot be simul semel by one and the same Inquisition executed and satisfied but ought to be divided and severall as the Warrant is severall and yet the same Inquest which found one Inquisition by one Warrant may also find another Inquisition by the other Warrant but divided and severall and not as one for as it is made it does not appear upon which of the Commissions the Inquisition as to Valentine is taken for as it is made it may be as well upon the one as upon the other for it is said to be by vertue of both the Commissions which cannot be and therfore is not good in any part and severall Warrants ought to be severally execused and therfore although the Escheator as appeareth by 9 H. 7. 8. may take â—â— Inquisition Virtue officii and at the same day another Inquisition Virtue brevis by one and the same Inquest yet this cannot be drawn into one Inquisition And that which is found Virtue officii contrary to that which before the same day Virtute libris as that it found more Land is good for the King And this their opinion was certified to the Court of Wards Sir Rowland Haywards Case 2. THis Case was also sent to the same chief Iustices out of the Court of See this case in Coke â— Report 35. Wards Sir Rowland Hayward being seised in his Demesne as of Fee of the Mannors of D. and A. in the County of Salop and of other Lands in the same County part wherof were in Lease for years by severall Indentures rendring certain rent part in the possessions of severall Copyholders and part in Demesne in possession out of Lease by Indenture dated 2. September 34. Eliz. made mention that this was for and in consideration of a certain sum of money to him paid by Richard Warren Esquire and others demised granted bargained and sold to the said Richard Warren and the others the said Mannors Lands and Tenements and the Reversion and Remainder of them and of every part of them and the Rents and Profits reserved upon any Demise therupon for 17. years next ensuing the death of the said Sir Rowland rendring a Rose at the Feast of S. John Baptist yearly if it be demanded which Deed was acknowledged to be enrolled and afterwards by another Indenture covenanted and granted for him and his Heirs hereafter to stand seised of the said Mannors Lands and Tenements to the use of the said Sir Rowland and of the Heirs Males of his body and afterwards and before any Attornment to the said Richard Warren and his Co-lessees or any of them the said Sir Rowland died seised of the said Mannors Lands and Tenements leaving a full third part of other Lands to descend to his Heir And it was moved on the Queens part that for part to wit for that which was in possession it past to the said Richard Warren and the other by way of Demise at Common Law and therfore it doth not passe afterwards by way of Bargain and Sale as to the Remainder and that therfore for the Services of the Mannors and for the Rents reserved upon the Demise these remain to the Heir who was in Ward to the Queen and within age and therfore to the Queen by reason of the Tenure which was in Capite by Knights-service But by Popham and Anderson it is at the Election of the said Richard Warren and his Co-lessees to take it by way of Demise or by way of Bargain and Sale untill that by some act done or other matter it may appear that their intent is to take it another way for the Vse in this case may well passe without the Inrolement of the Deed because the Statute of 27 H. 8. of Inrolements extends but to where a Free-hold is to passe and the Vse so passing this shall be executed by the Statute of 27 H. 8. of Vses and therfore if the said Richard Warren and his Co-lessees after the death of the said Sir Rowland Hayward would elect to take it by way of Bargain and Sale they shall have all the Reversions Remainders Rents and Services as well as the Land in possession executed to them by the Statute of Vses And of the same opinion were all the Iustices in Trinity Term following upon their meeting at Serjeants-Inne for another great cause Trinity Term 37 Eliz. 1. VPon an Assembly of all the Iustices and Barons of the Exchecquer at Where a Justâ—ce of Peace bails one who is not bailable he shall be sined and albeit he be committed but for sufficiâ—â—â— of Felony and haâ—h no notice of his offence Serjeants-Inne in Fleetstreet this Term it was resolved by them and so agreed to be hereafter put
doth much concern the Infant in as much as by his false plea he shall be bound to â—nswer of his own Goods if he hath no Goods of his Testator and therfore in a 11 E. 4. 1. he hath remedy against his Guardian for pleading a false Pâ—ea And by Doderidge if he hath no Guardian the Court shâ—ll appoint him a Guardian And if an Infant bring an action as Executor by Attorney and hath Iudgment to recover this is not erronious because it is for his benefit so per Curiam the difference is where he is Plaintiff and where he is Defendant And there is another difference where he is Executor and where not for being Executor his Plea might have been more prejudiciall to him and Coke lib 5. Russels case was agreed for good Law for an Infant may be Executor and may take money for a Debt and make a Release and give an Acquittance but not without a true consideration and payment of the money The same Term in the same Court. Thomas Middletons Case THomas Middleton alias Strickland was condemned for a Robbery at the Where a Felon is condemned and elcapeth and is re-taken upon confession that he is the same party execution may be awarded The Sheriff of Middlesex fined for not attending the Court. Assises in Oxford after which he made an escape and being taken again he was brought to the Bar and upon his own confession that he was the same party who did the Robbery and that he was condemned for it the Court awarded execution And Mountague chief Iustice said thâ—t was no new case for it had been in experience in the time of E. 3. and 9 H. 4. and 5. E. 4. that the Court might so do upon his own confession And because the Sheriff of Middlesex did not give his attendance upon the Court in this case nor came when he was called the Court fined him 10 l And Mountage said that it shall be levied by proces out of the Court and also all other Fines there assessed and not estreated into the Exchequer for then the party might compound for a matter of 20 s. and so the King be deceived The same Term in the same Court. Gouldwells Case IOhn Gouldwell seised of Land in Socage Tenure devised them to his Wife for life the Remainder to John Gouldwell his Son and his Heirs upon Condition that after the death of his Wife he shall grant a Rent-charge to Steven Gouldwell and his Heirs and if John Gouldwell dye withâ—ut Heirs of his body that the Land shall remain to Steven Gouldwell in Tail the Wife dieth John Gouldwell grants the Rent accordingly Stephen Gouldwell grants the Rent over John Gouldwell dies without Heir of his body and the second Grantee distrains for the Rent arrear and Stephen Gouldwell brings a Replevin And it was urged by the Counsell for the Plaintiff that this Rent shall not have continuance longer then the particular Estate and cited 11 H. 7. 21. Edriâ—ks case that if Tenant in Tail acknowledge a Statute this shall continue but during his life and Dyer 48. 212. But it was agreed per Curiam that the Grantee was in by the Devisor and not by the Tenant in Tail and therfore the Grant may endure for ever But for the second point this being to him in Remainder the intent of the Demisor is therby explained that he shall have the Rent only untill the Remainder come in possession for now the Rent shall be drowned in the Land by unity of possession 3. It was agreed and resolved that by the granting of the Kent over this was a confirmation And Mountague said that it was a confirmation during the Estate Tail and shall enure as a new grant afterwards And Haughton and Doderidge said that they would not take benefit of the grant over by way of confirmation for as Haughton said this enures only ought of the Devisor and he hath power to charge the Land in what manner he pleaseth and it is like to an usuall case as if a man makes a Feoffment in Fee to the use of one for life the Remainder over with power to make Leases and after he makes a Lease this is good against Tenant for life and him in the Remainder also And I have considered what the intent of the Devisor should be in granting of this Rent and it seems to me that in as much as the Land is limited in Tail and the Rent in Fee that by this the Grantee shall have power to grant or dispose of the Rent in what manner he would but if the Land had been in Fee I should have construed his intent to have been that the Grantee should have the Rent only untill the Remainder fall to which Doderidge agreed who said that we are in the case of a Will and this construction stands with the intent of the Devisor and stands with the Statute which saies Quod voluntas Donatoris est observanda The same Term in the same Court. Baskervill versus Brook A Man became Bail for another upon a Latitat in the Kings Bench and before Iudgment the Bail let his Lands for valuable consideration Difference between baile in the Kings Bench and the Common Pleas. And how a bail shall relate And afterwards Iudgment was given for the Plaintiff And now it was debated whether the Land Leased shall be liable to the Bailment and it was said by Glanvill of Councell with the Lessee that it ought not to be liable and he put a difference between a Bailment in this Court and a Bailment in the Common Pleas for there the Suit cometh by originall and the certainty of the debt or demand appeareth in the declaration and therfore then it is certainly known from the begining of the Bailement for what the Bail shall be bound But in this Court upon the Latitat there is not any certainty untill Iudgment given before which the Land is not bound and now it is in another mans hands and therfore â—ot liable and he puts Hoes case Co. lib. 5. 70. where iâ— was resolved that where the Plaintiff releaseth to the Bail oâ— the Defendant upon a Suit in the Kings Bench before Iudgment all Actions Duties and Demands that this Release shall not bar the Plaintiff for there is not any ceâ—tain duty by the Bail before Iudgment and therfore it cannot be a Release and he citeâ— the case of 21 E. 3. 32. upon an account and said that it was like to a second Iudgment in that which reduceth all to a certainty and therfor c. But it was said by Mountague and Crook that the Lessee shall be bound for otherwise many Bailments and Iudgments shall be defeated which will bring a great Inconvenience And Mountague said that it was like to the case of a bargain and sale of Land which after it is Inrolled within six moneths shall relate to the beginning of the Bargain so upon the Iudgment given relation is made from the time
grants over the Reversion the first Lessee dies and the Grantee of the Reversion brings a Writ of Covenant against his Executors In which case there were two points 1. Whether these words And the said Lessee his Executors Administrators and Assigns shall from time to time c. make a Covenant or Whether Covenant lies against the Executor of a Lessee after assignment no. 2. Whether as this case is it will lye against the Executors of the Lessee As to the first point it was agreed that it is a Covenant for being by Indenture it is the words of both parties and it is more strong being in the case of the Queen Haughton laid that 25 H. 8. Tit. Covenant Covenant will lye against a Lessee after assignment but Debt lyeth not for Rent after the Lessee hath accepted the Assignee for his Tenant and therfore it seems that by the expresse words of the Covenant that the Action lies Doderidge Iustice contra for between the Queen and the Lessee there is privity of Contract and also of Estate so that the Queen her Heirs and Successors might have had an action against the Lessee or his Executors upon the privity of Contract and where the Lessee â—ssigns over the privity of Contract remains but the privity of Estate is gone to the Assignee and now when the Queen grants over the Reversion the privity of Contract is utterly determined wherby the Action of Covenant cannot be maintained against the first Lessee or his Executors who are more remote to which Mountague chief Iustice agreed see 2 H. 4. 6. 6. H. 4. 1. and Co. lib. 3. Walkers case and the Iudgments there cited Et adjournator The same Term in the same Court. Bennet versus Westbeck THe Case was thus Tenant for life Remainder for life Reversion in Fee he in Remainder for life gives his Deed of Demise with the assent of the first Tenant for life upon the Land to a stranger in the absence of the Lessor and said that he surrendred to him in Reversion And it was said that this Surrender being without Deed was not good to him who was absent and to confirm it the case was put out of 27 H. 8. Where Mountague chief Iustice said that if a Feoffment be made to four and Livery is made to one in the absence of the other but in name of all if it be by Deed this shall enure to all but if it be without Deed then only to him to whom the Livery was made So here this Surrender doth not enure to him in the Reversion being absent Whether Tenant for life in Remainder may surrender without Deed. But Non aliocatur for the sole point now in question was whether he in Remainder for life can surrender without Deed and as to it this Rule was taken viz. That that which cannot commence without Deed cannot be granted without Deed as a Rent Reversion common Advowson c. as 19 H. 6. 33. 14 H 7. 3. 1 2. Ph. Mar. 110. 22. Ass Pl. 16. But in this case this took effect by Livery and not by Deed and therfore might be determined without Deed. Mountague and Haughton agreed that it might be surrendred without Deed because it had its beginning without Deed but it could not be granted over without Deed. Doderidge Iustice said that it could not be surrendred without Deed but he said that Tenant in possession may or Tenant for life and he in Remainder together may surrender to him in the Reversion but this shall innure as two severall Surrenders first of him in Remainder to the Tenant for life and then by the Tenant for life to him in the Reversion Crook Iustice agreed with Doderidge for the Estate of him in Possession is an Estoppell to the Surrender so that it could not be surrendred without Deed. The same Term in the same Court. Thurman versus Cooper IN an Ejectione firmae brought by John Thurman against William Cooper upon the whole matter the case was thus Lands were given to a man and woman who afterwards inter-marry and to their Heirs and Assigns Habendum to them and to the Heirs of their two bodies engendered the remainder to them and the Survivor of them with warranty to them and their Heirs and Assigns for ever And the question was what Estate this shall be whether an Estate-tail or Fee-simple or a Fee-tail with a simple Expectant And it was said that this shall be an Estate-tail only for the Habendum qualifies the generall words precedent and with this agrees Perkins 35. b. and Co. lib. 8. 154. b. Althams case But it was answered and resolved by the whole Court that this is a Fee-tail with a Fee-simple expectant and they observed these Rules 1. That every Deed shall be taken most strong against him that made it 2. That every Deed shall be construed according to the intent of the maker so that all the parts may be effectuall if they can stand together with the Rules of Law 40 E. 3. 5 Percy saith that it is a Fee-simple 21 H. 6. 7. that it is an Estate-tail with a Fee-simple expectant Dyer 160. and Plow Paramore and Yardleys case the Law shall make an order of words where there is no order put by the parties and the words after the Remainder limited are Tenendum de Capitalibus Dominis feodi c. and therfore it ought to be a Fee-simple for if it were a Fee-tail he should hold of the Donor as it is in Co. lib. 6. Sir John Molins case and other Books And although the Warranty cannot inlarge an Estate yet this expresses his intent to passe a Fee-simple and the Law shall make a construction that the Fee-tail shall precede upon which the Fee-simple shall be expectant according to that which is before said in Paramore and Yardleys case Doderidge If the Habendum had been to a stranger the Premisses had been but a Tail as 7 H. 4. for otherwise the Habendum shall be void But if Land be given to one and his Heirs viz. In Tail or if the said Donce dye without Issue of his body this had been but an Estate-tail only because it immediatly checks and confirms the Premisses to which Haughton agreed Et adjournator The same Term in the same Court. Powels Case POwel an Vtter-Barister of the Temple and also Town-Clark of Plimoth brought an Action upon the Case against for these Words That he was a Puritan Knave a precise Knave a bribing Knave a corrupted Knave c. words The Defendant supposing that the Plaintiff had wronged him in the Court of Plimoth said that he was a Puritan Knave a precise Knave a bribing Knave a corrupted Knave and that he would make him answer for that which he had done in another place And after Verdict for the Plaintiff it was now moved in Arrest of Iudgment that the words were not actionable because he doth not scandalize him in his Profession by which he acquires his
my Furze And after Verdict for the Plaintiff it was moved in Arrest of Iudgment thâ—t these words were not actionable But it wâ—s said on the other side that to say thou art a Theef is actionable and the subsequent words are in the Copulative and enure as a confirmation of the precedent words But if it had been for Thou hast stoln my Furze this had been â—n explanation of the precedent words and therfore in that case the action would not have been And it was answered and resolved by the Court that the word and in some cases shall be taken as the word for and so it shall be in this case and therfore adjudged that the action lies Mich. 22. Jac. In the Star Chamber TWo men came Ore tenus into the Star Chamber for stealing of the Kings Deer and were fined a 100 l. a peece and three years Imprisonment unlesse it would please he King to release them sooner and before Fines in the Star Chamber for killing the Kings Deer they should be released of their Imprisonment to be bound to their good behaviour And it was observed by the Attorney-generall that the offence was the greater in regard that the King had but one darling pleasure and yet they would offend him in that And it was said by some of the Court that it was a great folly and madnesse in the Defendants to hazard themselves in such a manner for a thing of so small value as a Deer was The Lord President said that Mr. Attorney was the best Keeper the King had of his Parks in regard he brings the Offenders into this Court to be punished The Lord Keeper said that the Defendants in such a case being brought Ore tenus â—re not allowed to speak by their Counsell and yet these men have had their Counsell but it was Peters Counsellors meaning their sorrow and contrition at the Bar which much moved him so that if his vete might prevail he would set but 20 l. fine upon them In the same Term in the same Court THe Lord Morley and Sir Richard Mollineax being beyond Sea their Sollicitor in their names exhibited a scandalous Bill in the Star Chamber against the Bishop of Chichister and after their return this continued so for three years without any disclaiming therof by them and now the matter being questioned they said that it was not done with their privity But because they had not disclaimed the Fact before they were fined a 100 l. to the King and a 100 l. to the Bishop for Damages and the Bill was to be taken of the File The same Term in the same Court. Lewes Plaintiff versus Jeoffreys and others Defendants THe Plaintiffs Brother had been a Suitor to a woman which matter proceeded to a Contract and afterwards the Defendant Jeoffreys hapned to be a Suitor to her also wherupon being Rivalls they fell out and the Plaintiffs Brother called the Defendant Jackanapes which was taken very ill by the Defendant being a Iustice of Peace in the County of Worcester and the other being but a mean man in respect of him so that he told him that if he would meet him on Horse-back he would fight with him afterwards one of the Sons of the Defendant went to the said Brother being upon his own Land and gave him a mortall wound wherupon a friend on the behalf of the party wounded came to the Defendant being a Iustice of Peace and brought him a peece of his Skull to the end that his Son should be forth coming at the next Assises declaring to him the danger of death the man was in wherupon the Defendant took a Recognisance of 10 l. of his Son and of his sureties of 5 l. a peece to answer this at the next Assise And in the mean time the party died of the said wound and the Son did not appear at the Assises and the Iudges of Assise fined the Defendant 100 l. for taking such slender security for the appearance of his Son which was paid and yet notwithstanding the Defendant was fined 200 l. more for this offence and also 200 l. for his misdemeanor in his challenge albeit the Defendant A Challenge fined in the Star Chamber was of the age of 63 years and so it seems that he intended to fight with him But he being a Iustice of Peace who is Conservator pacis he did against his oath to do any thing which may tend to the breach of the Peace And for the other matter it was said by the Court that the Defendant being Father to the offendor it had been better for him to have referred this matter to another Iustice of Peace or at least to have had the assistance of another And the party being in such great danger of death his son was not bailable Hillary 1. Car. In the Kings Bench. Bowyer versus Rivet THe case was thus Sir William Bowyer 12. Jac. recovered against Sir Thomas Rivet in an Action of debt Sir William made his wife his Exceutrix and died the wife made Bowyer her Executor and died then Sir Thomas Rivet died Bowyer brought a Scire facias to have execution upon the Iugment against Sir Thomas Rivet the younger as Heir apparant to the Land to him descended from Sir Thomas Rivet who pleaded Riens per descent from Sir Thomas Rivet and it was found that he had two acres and a half of Land by discent and it was prayed by Goldsmith that Iudgment might be given against Sir Thomas Rivet generally for he said that this false Plea shall charge him and his own Lands and cited Plowden 440. where in debt against an Heir upon his false Plea his own Lands shall become liable to the debt and Co. lib. 3. 11. b. Sir William Herberts case where the case was upon a Scire facias against the Heir as it is in this case But on the other part it was argued by Richardson the Kings Serjeant Banks and all the Iustices that Execution shall be awarded in no other manner against the Heir then it should be against his Ancestor or other Purchasor to wit of a Moyety of that which he had by discent for as much as in this case he cannot be to this purpose charged as Heir but he ought to be charged as Ter-tenant and as a Purchasor and a Purchasor shall never hurt himself but his false Plea And Banks argued that the Heir in this case is charged as a Purchasor and the false Plea of a Purchasor shall never charge himself 33 E. 3. Fitz. Execution 162. and 6 E 3. 15. and that in this case he is charged as Ter-tenant appears by three reasons 1. Debt will not lye against an Heir but where he is bound as Heir but in this case Execution is to be sued against him as another Ter-tenant Dyer 271. 11 E. 3. 15. and in 27 H. 6. Execution 135. and Co. lib. 3. 12. b. That in Iudgment upon Debt or Recognisance the Heir is charged and
Issue a Son which selleth this Remainder and afterwards I. S. dyed this Son being his Heir notwithstanding his Sale he shall have this Remainder not his Grantee because it was not in him at the time of his Grant but by a matter which cometh Ex post facto to wit the death of his Father and afterwards Iudgment was given in the first case that the Grantee shal have the term granted to him by the Husband and that the Wife shall not have the term during this Leese Hunt Versus Gateler Mich. 34. and 35 Eliz. in Commun Banco IN a Replevin between Hunt Plaintiff and Gateler Avowant in the Common Pleas which was adjorned for difficulty into the Exchequer Chamber the Case was thus Tenant in tail Remainder in Fee he in Remainder in Vide this case Cook lib. 1. 61. by the name of Capeâ—s case Fee grants a Rent-charge in Fee out of the same Land to begin after the Estate tail determined Tenant in Tail suffer a common Recovery with a Voucher over to the use of the sayd Hunt in Fee and dyed without Issue inheritable to the intail and whether Hunt shall now hold the Land charged with the Rent was the question and after that it had long depended and was many times argued in the Common Pleas and Exchequer Chamber at Hertford Term it was at last resolved by all the Iustices and Barons unanimously that the sayd Rent charge wss gone by the Recovery although the Estate tail was expired because that he which is in is in under this Intail And therefore Popham sayd suppose thâ—t the Tenant in tail himself before the Recovery had granted a Rent charge out of the same Land or had made a Lease for yeers or had acknowledged a Statute all those had been good and to be executed against him which cometh in under the Recovery notwithstanding that the Estate tayl had been determined for want of an heir inheritable to the intail for he which recovereth cannot lay that he against whom he recovered had but an Estate in tail and if his Lease remain yet good as all agreed it did how can the Lease a Rent granted by him in the Remainder be good also for the one and the other cannot stand together and therefore all the Leases Charges or Statutes acknowledged or made by him in the Remainder are gon and avoided by the Recovery had against Tenant in tail To which opinion all the other agreed and Popham sayd further That he in the Remainder upon an Estate tail cannot by any means plead to defend his Remainder unless the Tenant will as by vouching of him and therefore shall be bound by the Act of Tenant in Tail where the Estate it self is bound as here it is by the Voucher and then they which come in by him in the Remainder by way of Lease Charge or Statute which are not so much favoured in Law as Tenant in tail himself be in better condition then he in the Remainder himself is for he in the Remainder upon an Estate tail cannot put more into the Mouth of the Lessee or Grantee to defend their Estates then he himself could have to defend his Remainder and this is the reason that such a Termer or Grantee shall never falsifie the Recovery had against Tenant in tail as the Grantee or Termer shall do which cometh in under Tenant in tail against whom the Recovery was had for there as the Tenant in tail may plead to defend his Possession and Estate so may his Termer or Grantee of a Rentcharge do for by the Demise or Grant made the Tenant in tail hath put all the Pleas into their mouthes for their Interests which he himself had to defend his Right and Possession which they may plead for the time to defend their Possessions and Rights as well as the Tenant in tail himself may do and this is the reason that such may falsifie Recoveries against their Lessors or Grantors if they be not had upon the meer right Paramount which he that cometh in by such a Remainder as before cannot do for such a one in Remainder cannot be received to defend his Right but his mouth is meerly foreclosed to do it and by the same reason are all those which come in by such men foreclosed to defend their Interests or Estates and upon this Audgement was given in the same Tearm in the common Pleas. Gibbons versus Maltyard and Martin IN an Ejectione firmae brought in the Kings Bench by John Gibbons Vide this case in Cook lib. 8. 130 Thetford Scholies case Plaintiff upon a Demise made by Edward Peacock the Son of Lands in Croxton in the County of Norfolk against Thomas Maltyard and John Martin upon a speciall verdict the case appeared to be thus to wit that Sir Richard Fulmerston Knight was seised of the sayd Lands amongst others holden in soccage in his Demesne as of Fee and being so seised by his last Will in Writing made 9 Eliz. Ordained that a Devise shall be made by his Executors that a Preacher shall be found for ever to preach the Word of God in the Church of Saint Maries in Thetford four times in the year and to have for his Labour ten shillings for every Sermon And further he devised to his Executors and their heirs certaine Lands and Tenements in Thetford aforesaid to this intent and upon this condition that they or the Survivor of them within seven years after his decease should procure of the Queens Highness to erect a free Grammar School in Thetford for ever to be had and kept in a house by them to be erected upon part of the sayd Land that they shal assure three of the said ienements for the house and Chamber of the Schoolmaster and Vsher and their Successors for ever and for the other tonement that they shall make an assurance of it for the Habitation of font poor people two men and two women for ever And for the better maintenance of the sayd Preacher Schoolmaster Vsher and Poore people he devised amongst others his sayd tenements in Croxton to his Executors for ten years for the performance of his Will and after this he devised them to Sir Edward Cleer and Frances his Wife the Daughter and Heir of the sayd Sir Richard and to the Heirs of the sayd Sir Edward upon Condition that if the sayd Sir Edward his Heires or Assignes before the end of the sayd ten years shall assure Lands or Tenements in possession to the value of five and thirty pounds a year to the sayd Executors or the Survivor of them their Heirs and Assignes or to such persons their heirs or Successors as his sayd Executors or the Survivor of them shall name or assigne for and towards the maintenance of the sayd Preacher Schoolmaster and Vsher in the sayd School house c. and for the releif of the sayd poor people in the one of the sayd houses according to the Ordinance as he
to the West eighteen foot ten inches which Messuage so newly built stood the day of the Writ purchased and yet stands c. And if upon the whole matter the said Demise of the said John Bradley and Anne be and in Law ought to be adjudged the Demise of the said Messuage newly built upon the said part of land where the Messuage of the said John Bradley and Anne stood then the Iury find that the said John Bradley demised to the said Thomas and Iohn Allen the said house newly erected as aforesaid as the Plaintiff hath alledged and if not then they find that he did not demise And upon this Verdict Iudgment was given there and an especiall Writ of Habere facias seisinam awarded of the said Messuage with the Appurtenances viz. 18 foot of it from the North to the South and 12 foot and an half of it from the East to the West upon which a Writ of Error being brought in the Kings Bench it was alledged for Eror by Coke Sollicitor that upon this Verdict Iudgment ought to have been given for the Tenant and not for the Demandant for what was remaining of that which was of the house is not a house but only a peece of a house and therfore it ought to have been demanded by the name of a peece of Land containing so much one way and so much another for a house wasted and utterly drawn away cannot be demanded by a Messuage but by the name of a Curtilage or so much Land of such contents for a Praecipe lies of a peece of Land containing so many feet in length and so many in breadth And also Land built during the possession of him which hath it by Tort cannot be demanded by the name of Land by him which hath right but by the name of a house nor e contra for every demand of Land ought to be made according to the nature of which it is at the time of the Action brought be it a Messuage Land Meadow Pasture Wood c. And if the Walls of a house be made upon the Land without any covering yet it shall be demanded but by the name of Land for he said that it cannot be a house without its perfection to be habitable which he said is not here because it stands upon the Land of the said Anne which hath not the perfection of a house habitable without the remnant But this notwithstanding the first Iudgment was affirmed for it was said by Popham and other Iustices that that which is erected upon the Land of the said Anne shal be said a house as to the right of the Heir of the said Anne for a house may be such to be demanded by the name of a house albeit it hath not all the perfection of a house as if it hath no doors so if it hath part of the side wals not made drawn away or fallen yet the remainder continues to be demanded by the name of an house so if part of the covering be decayed yet it shall be demanded by the name of an house and the rather here because with that which is upon the other Land it is a perfect house And I may have a perfect house although the side Walls belong to another as in London where a man joynes his house to the side walls of his Neighbours he hath a perfect house and yet the side walls belong to another and this commonly happens in London but it is otherwise if it were never covered or if the covering be utterly fallen or drawn away for without a covering a house cannot be said to be a house for the covering to keep a man from the Storms and Tempests over head is the principall thing belonging to a house And further suppose that a man hath a Kitchin or a Hall upon Land to which another hath right he which hath right ought to demand it by the name of a house suppose then that there is adjoyning to this upon other land a Parlor a Buttery a Shop a Closet and the like with Chambers over them this doth not change the form of the Writ that he is to have which hath right although before it was built by the name of a house and yet as to the rent both the one and the other was but a house but as to the demandant it is otherwise for they are severall so here And the Demise which before was made of the house drawn away shall be now upon the matter a Demise as to this part of it a new Messuage for if a man make a Lease for years of a house and the Tetmor pull it down and erect there a new house or if land be demised and the Lessee build a house upon it in an Action of Wast for Wast done in this new house the Writ shall suppose that he did wast in the Houses c. which were demised to him and yet in the one case it is not the Messuage which was demised to him and in the other the house was not demised but the Land only But he hath no term in the house but by the Demise before made And it seems to Popham that Allen the Defendant cannot pull down this part of the house erect upon his own land to the prejudice of the house which Hayes demands if this which is erected upon the land of Allen be of such a necessity that without it the house of Hayes cannot stand for a house but if he dies after that Hayes hath built it then Hayes shall have an Action upon the case against him for the damages which he sustained by it As if a man agree with me that I shall set the outer wall of my house upon his land and I do it accordingly and afterwards the party which grants me this licence breaketh it down if the Grant were by Deed I shall have an Action of Covenant for it and if but by Paroll yet I shall have an Action upon the case against him And here this being done by him which was then Owner and Possessor of the one and the other land it shall be taken as a licence in Law to the benefit of him which hath right which he cannot pull down after it is once made but he shall be subject to Hayes his Action for it or otherwise Hayes shall be at great mischief and prejudice by the Act of him which did the wrong which the Law will not suffer but rather shall turn this to the prejudice of him which did the wrong then to the prejudice of the other which shall have wrong by the doing of it for Volenti non fit injuria As if I am to inclose between my Neighbour and my self and my Neighbour pull down this inclosure or part of it wherby my Cattell escape into the land adjoyning and depasture there I shall be excused of this Trespasse in the same manner as if he had licenced me to have occupied it and whatsoever hapneth to this Land adjoyning
years are past but in this case it ought to be shewn a Term within the two years which is as much as to say that if the Terms be all past so as it cannot be done after it within the two years the Assurance eo instanti upon the finishing of the last Term is become void as if an Assurance be upon condition that if in the Term time within two years he do not levy a Fine to I. S. and his Heirs c. now if the last Term passe without the Fine the Vse change albeit the two years be not expired si Parolls fort Plea And there is great diversity where an Estate is to be defeated or an Vse is to be raised upon an Act to be done or not done within a time certain within two years and where within two years generally for in the first case the Vse change upon the Act done or not done immediatly and in the other not untill the two years are finished because that by presumption alwaies within two years the Act may be done for any thing of which the Law takes conusance But if the Act to be done or not done refer to any time certain within the two years as if he do not pay 10 l. to one before the Feast of S. Michael the Arch-angel within the two years that then the Vse shall change or the Estate shall be void in these cases immediatly upon the last Feast of S. Michael the Arch-angel within the two years the Vse change or the Estate shall be void as the case is and shall not tarry untill the full end of the two years to do it for in the words themselves the diversity appeareth 8. AT the same time there was another Indenture shewn to the said Iudges bearing date the 4. day of May 1 Eliz. made between the said Sir Francis Englefiâ—ld of the one part And Sir Edward Fitton and Sir Ralph Egerton Knights of the other part and inrolled in the Exchequer according to the Statute of the 30. day of October 30 Eliz by which the said Francis for him and his Heirs covenanted with them that as well in consideration of a Marriage had and solemnised between John Englefield brother of the said Sir Francis and Margaret Fitton Sister to the said Sir Edward and for the augmentation and interest of the Ioynture of the said Margaret as for other good causes and reasonable considerations the said Sir Francis especially moving the said Sir Francis before the Feast of S. John Baptist then next ensuing would assure Lands within the County of Warwick of the value of 60 l. a year to the said Sir Edward and Sir Ralph and their Heirs to the use of the said Margaret for her life and for her Ioynture for part of it and for the remainder that it shall also be to the use of the said Margaret for her life in case that the Lady Anne then the wife of the said Sir Francis should recover her Dower of the said 60 l. a year And the said Sir Francis for him and his Heirs did further covenant with the said Sir Edward and Sir Ralph that if it should happen that the said Sir Francis shall die without Issue Male of his body the said Iohn or any Issue of his body upon the body of the said Margaret begotten then living that then after the death of the said Sir Francis as well the Mannor of Englefield as all his other Lands making especiall mention of them should be and might descend remain revert continue or be in possession or rebersion to the said Iohn Englefield and to the Heirs Males of his body upon the body of the said Margaret lawfully begotten if the sayd Iohn were then living or to the Heirs Males of the body of the sayd Iohn upon the body of the sayd Margaret lawfully begotten without any Act or Acts Thing or Things made or to be made by the sayd Sir Francis to the contrary therof And upon this it was moved that there was a variance between this Deed now shewn and this Inrolement and that therfore it doth not appeare whether this Deed was shewn in the Court or delivered there according to the Statute therof made 28 Eliz. for in the Deed it is for other good causes and this word good is not comprised within the Inrolement But as to it all the Iudges and Barons agreed that albeit these defeats hapned by the negligence of the Clerk in writing and examining this Inrollement remaines good in as much as the omissions are in matters and words which are of abundance and not in that which is any substance of the Deed. But the Lords of Parliament which were Committees of this case in the Parliament sent for the Record of the sayd Inrolement and would have had this to have been amended in the Chamber next to the Parliament but as the Officer was in doing of it the Iudges advised that it should not be done as well because this was not the place where it ought to be amended but the Court of Exchequer if it were or needed to be amended And also because that the two years after the Session of Parliament of 28 Eliz. was then past Then it was moved whether by the Covenant and considerations aforesaid the use shall passe or were raised to John Englefield or now to his Son Francis Nephew to the said Sir Francis and begotten upon the body of the sayd Margaret And all agreed that it is not for divers reasons 1. Because it is that if it happen that Sir Francis die without Issue Male that then it shall be to John as before if he be then living or to the Heirs Males of his body as before which is in the disjunctive to wit that it shall remain to John or to his Heirs Male of his body which cannot raise any use but found only in Covenant for the incertainty and also it is upon a future contingent to wit if the said John be then living 2. Because the Covenant is that it shall come or descend c. in the disjunctive and if he had covenanted that it shall descend to Iohn after his death without Issue Male it had been cleer that no use had been raised by it for it shall be but a meer Covenant to wit that he shall leave it to descend to him and here it being in the disjunctive it cannot be any other then a bare Covenant to wit that he shall suffer it to descend or otherwise by conveyance to come to John after his death without Issue Male the one or the other at his pleasure And yet further that it shall descend come or remain to John in possession or reversion so that he may make the one or the other void at his pleasure which cannot be if an Vse shall be raised by it and therfore also it enures but as a bare Covenant which he may perform either the one or the other way at his pleasure Also it is that it
remain good and of force against the Patentee and also to say that the Lease might have its continuance after that it is determined by the Limitation comprehended in the Writing by reason of a reservation is also too absurd for so it may be said that if the Queen make a Lease for years if J. S. shall live so long rendring rent that this Lease may have continuance after the death of J. S. which cleerly is not Law And the Patentee here shall take the advantage to avoid the Lease hapned before his Patent made because that no Office need to be found of the not payment before it passed from the Queen to make it voyd and the reason is because this Proviso as it is penned is a meer Limitation of the Estate and not any manner of Condition And therfore if the Queen make a Lease for 100. years if the Lessee shall so long lawfully pay the Rent reserved at the day of payment if he fail of payment of the Rent reserved at the day limited the Lease is ipso facto determined and it need not be found by Office And what diversity is there where the Limitation is conjoyned to the estate it self and where it cometh in by a Proviso afterwards all being in one and the same Deed and therfore spoken at one and the same time for the one and the other case manifesteth that the contract and agreement is that the Lease shall not continue longer then the default of the payment of the Rent And in this case suppose that the Queen had granted over the Land shall not the Patentee have advantage to avoid the Lease because that no Office was found before It is cleer that he shall or otherwise this is now become to be an absolute Lease for a hundred years which is not Law for it is meerly contrary to the Contract and therfore absurd to be maintained I agree with the generall rule that nothing shal passe to or from the Queen but by matter of Record but this makes nothing against me in this case for here the same Record which passeth the Estate to the party to wit the Patent of the Lease contains the time how long it shall endure longer then which it cannot continue And therfore by 9 H. 7. If the King makes a Gift in tail and the Donce dies without Issue the Land is in the King without Office so in every other case where the Estate is determined according to the limitation for he cannot be put out of possession wrongfully and now hath right to hold it against him And I say that no warrant or authority can be found throughout the whole Law where a Lease or Estate made by the King is determined by an expresse limitation comprised in the Patent it self of the Grant that there need not any Office or other thing to determine it for that which is comprised in the same Patent may determine it of it self And further wheras the Proviso is that the re-entry shall be for default of payment of the Rent and the like there the Term continues untill the re-entry be made notwithstanding the Condition be broken as appeareth by all the Iustices 28 H. 8. because it is expresly limited that it shall be defeated by the re-entry there before re-entry be made the Action of Wast shall be quod tenet And by 12 H. 7. where a common person is put to his Entry there the Queen is put to an Office with which agrees Stamford in his Book of Prerogative But in this case if it were between common persons the Lease shall be determined upon default of payment of the Rent and before any re-entry and therfore in the Queens case it shall be determined without Office But if the case had been that if the Rent had been arrear and not paid that then upon re-entry made it ought to cease there an Office had been necessary to countervail the Entry in case of the Queen or otherwise the Lease shall not cease because the Queen cannot make an Entry but by such means and therfore it ought to be by matter comprised in the Patent It hath been said that this shall be a conditionall Limitation and that therfore an Office is necessary but I say that here is not any matter or quality of a Condition but meerly of a Limitation and t is rather a contingent Limitation then any manner of Condition and this is well proued by 11 H. 7. which is that the Grantee of a Reversion shal take advantage of it at common Law the which he cannot do if it savour any way of a Condition and by 27 H. 8. a Proviso in a Deed ought alwaies to be expounded according to the purport because that it is placed in a Deed somtimes for a Condition as where a Proviso is that the Lessee shall not alien somtimes for an exception as where a Proviso is that the Lease shall not extend to such an acre or such a thing somtimes for a Limitation as here and in the like cases And in this case the release of the Rent shall make it that the Lease shall never be determined for the not payment of it because thaâ—â—â—terwards there cannot be any such default of payment and therfore in such a case the Limitation remaineth absolute and discharged of the contingent which otherwise had determined it As if a man make a Lease for a 100. years if the Lessee in the mean time do not cut such a Tree a release of all Conditions will not serve yet if the Lessor himself or any other but the Lessee cut it the Lease is become absolute for a 100. years And so upon this point my conceit appeareth But the most colourable thing which hath been alledged on the other side was by my Brother Drew which was that in counting upon an Ejectione firmae and pleading in such a Lease as here it shall be as an absolute Lease for the years comprised in the Habendum without making any mention of the Prouiso upon which he enforced it that it shall be taken to be of more efficacy then if it stood meerly upon the Contingent for he said that upon a Lease made for years if the Lessee shall so long live and the like in the count and also in the pleading mention ought to be made of the life of the Lessee I agree it to be true that the pleading shall be so for in count counting and in plea pleading if the matter of the Contingent procede the Limitation or be anncred to the Limitation there a man ought to speak to the Contingent or otherwise it is not good as by 14 H. 8. it shall be of a Condition where it is precedent But in case of a Condition it is quite otherwise for if â— man make a Lease to another for years Si tamdiu vixerit or Dummodo solverit c. or the like which are annexed to the limitation of the Estate in all these cases in counting
dies and afterwards John his Son and Heir dies without Issue the reversion by this descends to the said Christopher who dies leaving Issue And upon this Case made in the Court of Wards the two chief Iustices Popham and Anderson agreed first That upon the devise and death of the Father the said Christopher and William were Joynt-tenants of the Land and not Tenants in Common notwithstanding the word severally because it is coupled with the said word joyntly But yet they agreed also that by the descent from John to Christopher the Fee-simple was executed in the said Christopher for the Moyety in the same Mannor as if he had purchased the Reversion of the whole or of this Moyety and that it is not like to the Case where Land is given and to the Heirs of one of them in which case for the benefit of the Survivorship it is not executed to divide the Ioynture because the Estates are made at one and the same time together and therfore not like to the case where the Inheritance cometh to the particular Estate by severall and divided means And a Decree was made accordingly Trin. 36. Eliz. In the Kings Bench. 1. IT was agreed by all the Iustices and Barons of the Exchequer upon an Assembly made at Serjeants-Inn after search made for the ancient Presidents and upon good deliberation taken If a man have two houses and inhabit somtimes in one and somtimes in the other if that House in which he doth not then inhabity be broken in the night to the intent to steal the Goods then being in his house that this is Burglary although no person bee then in the House and that now by the new Statute made such an Offender shall not have his Clergy for before the Statutes were made which take away Clergy in case of Burglary where any person was put in fear no mention was made in the Inditements of Burglary that any person was in the House But it was generall that the house of such a one Noctanter fregit and such Goods then there Felonice cepit And the breaking of a Church in the night to steal the Goods there is Burglary although no person be in it because this is the place to keep the Goods of the Parish And in the same manner the house of every one is the proper place to preserve his Goods although no person be there And that the Law was alwaies so it is to be collected by the course of the Statutes therof made for first the Statute of 23 H. 8. doth not take Clergy from any in case of Burglary unlesse some of the same Family be in the house and put in fear And in 5 Eliz. 6. The Offendor shall be ousted of his Clergy if any of the Family be in the house be they sleeping or waking And these Statutes were the cause that it was used of late time to put in the Inditements of Burglary that some person of the Family was then in the house to put them from their Clergy But this doth not prove that it shall not be Burglary but where some person was in the house and by 18 Eliz. Clergy is taken away in all cases of Burglary generally without making mention of any person to be there which enforce the resolution aforesaid and according to it they all agreed hereafter to put it in Execution Finch versus Riseley 2. IN this Term the case betweeen Finch and Riseley was in question before all the Iustices and Barons for this assembled at Serjeants-Inn in Fleetstreet where after Arguments heard by the Councell of the parties upon this point only If the Queen make a Lease for years rendring Rent with a Proviso that the Rent be not paid at the day limited that the Lease shall cease without making mention that it was to be paid at the receit whether the Lease shall cease upon the default of payment before Office found therof And by Periam and some of the Iustices the Lease stall not cease untill an Office be found of the default because it is a matter in Fait which determines it to wit the not-payment And by Gawdy it shall be taken as if it had been for the not-payment that the Proviso had been that the Lease shall be forfeited In which case it is not detennined untill Re-entry made for the forfeiture which in the Queens case ought alwaies to be by Office which countervails the re-entry of a common person As where the Queen makes a Lease rendring Rent and for default of payment a Re-entry albeit the Rent be not paid yet untill Office found therof the Rent continues Popham Anderson and the greater part of the Iustices and Barons resolved that it was cleer in this case that Ipso facto upon the default of payment the Lease was determined according to the very purport of the contract beyond which it cannot have any beeing and therfore there needs no Office in the case But where it is that it shall be forfeited or that he shall re-enter there untill advantage taken of the forfeiture in the one case or untill re-entry made in the other case the Term alwaies continues by the contract And where in the case of a common person there is need of a re-entry to undo the Estate there in the case of the King there needs an Office to determine the Estate for an Office in the Kings case countervails an entry for the King in person cannot make the entry And upon this resolution of the greater part of the Iustices in Mich. Term 31 32 Eliz. the same case was in question in the Office of Pleas in the Exchequer between the said Moil Finch Plaintiff and Thomas Throgmorton and others Defendants and there adjudged by Manwood late chief Baron and all the other Barons unanimously after long argument at the Bar and Bench that the Lease was void upon default of payment of the Rent according to the Proviso of the Lease and this immediatly without Office for the reasens before remembred upon which Iudgment was given a Writ of Error was brought before the Lord Keeper of the great Seal and the Lord Treasurer of England where it long depended and after many arguments the Iudgment given in the Exchequer by the advice of Popham and Anderson was affirmed and that upon this reason for the Proviso shall be taken to be a limitation to determine the Estate and not a Condition to undo the Estate which cannot be defeated in case of a Condition but by entry in case of a common person and but by Office which countervails an entry in the case of the Queen And this Iudgment was so affirmed in Mich. Term 36 37 Eliz. Smiths Case 3 IT was found by Diem clausit extremum after the death of Richard Smith that in consideration of a marriage to be had between Margaret Smith and William Littleton a younger Son to Sir John Littleton Knight and of 1300. marks paid by the said Sir John to the said
said Queen her Heirs and Successors for ever which Deed was acknowledged the 25th day of March 32 Eliz. and enrolled in the Chancery the 12th day of May in thâ— same year And there was a Proviso in the same Deed that if the said Robert Bret shall pay to the Queen at the receipt of the Exchequer 5 s. of lawfull money that then the said Gift Grant Bargain and Sale shall be void and that from thence-forward it shall be lawfull for the said Robert Bret and his Heirs to re-enter into the said Tenements and in the mean time between the Inrolement of this Deed And the said 14th day of Octob. to wit the 15th day of September 32 Eliz. the said Arthur upon the said Tenements in North-petherton entred and claimed the Reversion therof in the right of the said Elianor his wife by reason of the death of the said Christian And that afterwards to wit the 30th day of February 33 Eliz. the said Robert Bret to redeem the said Tenements out of the Queen paid the said 5 s. at the receipt of the Exchequer which payment is there recorded and enrolled accordingly after which in September 34 Eliz. the said Arthur and Elianor sued out a speciall Livery of the said Elianor out of the hands of the Queen of all the Lands seised into the hands of the Queen by reason of the Nonage of the said John Mallet And afterwards in the same meneth of September 34 Eliz. the said Arthur and Elianor sued out another speciall Livery as Heir to the said Christian of all the Lands which were in the Queens hands by the death of the said Christian And it was further found that the said John Clark and Elianor Middleton died after the 5 s. paid as before and that the said Robert Bret entred the 8th day of October 34 Eliz. and then made the Lease to the Plaintiff upon which the Defendant by commandment of the said Arthur and with him entred upon the Plaintiff and the generall question was Whether the entry of the Defendant were lawfull But no ouster of the Plaintiff was found And by Clench and Fennor a Fee-simple passe at Common Law by a Fine levied by him in Reversion or Remainder in Tail because a Fine is said to be a Feoffment of Record and by their entry and Feoffment a Fee-simple passe in such a case at Common Law But by Popham and Gaudy a Fee-simple doth not passe nor nothing but that which Tenant in Tail may lawfully grant over which is for his life in which he said that Littleton was plain in all cases of Grant although it be by Fine and a Fee-simple does not passe at Common Law but where the Fee may be drawn out of him who had the Reversion or Remainder in Fee therupon if such a Reversion or Remainder had been in a stranger which had not been in this case if the Reversion or Remainder had been in a stranger and therfore a Discontinuance cannot be of an Intail where the Reversion or Remainder is in the King But by them all however it was at Common Law it is cleer upon the Statute of Fines that a Fee-simple determinable passe by such a Fine as soon as the Fine is levied because every Fine by presumption of Law shall be taken to be such wherupon proclamation is made untill the contrary therof appeareth to the Court. And this is the reason why a Quid juris clamat is at this day maintained upon such a Fine which was not at Common Law before this Statute or otherwise it will never lye And so it was holden lately in the Common Bench in the case of Iustice Wimondham and yet we may see that the Quid juris clamat ought to be brought before that the Fine be engrossed wherby it is manifest that now a Fee-simple shall passe by the Fine levied for the possibility of the Proclamations to wit that the Proclamations shall not be made and to this Fee-simple the Proclamations shall enure to make a bar to the Estate-tail But such a Fine by Popham and Gawdy was not any wrong to him who had the Reversion or Remainder in Fee being levied by him who had a mean Reversion or Remainder in Tail depending upon an Estate for life or in Tail precedent And it is cleer that the Proclamations do not make the Estate but enure to the Estate made by the Fine for if an Estate be granted in Reversion for life or in Tail by Fine with Proclamations by such a Tenant in Tail in Reversion or Remainder the Proclamations work to this Estate and no further for alwaies the Estate passe by the Fine and the Proclamations make the Bar according to the Estate which passe by the Fine before But by Clench Gawdy and Fennor the Fee-simple which was in the Queen after the Fine levied as before was divested by means of this claim made upon the possession of the Queen lo that the Proclamations following are of no force to hurt the Estate tail for they said in divers cases a possession may be invested out of the Queen without Office Petition or Monstrans de droit as the case is where a man devise that his Land shall be sold and in the mean time before the sale the possession of the Land cometh to the Queen and afterwards the Land is sold according to the Will the Vendee enter there the Land passe from the Queen therby and is divested and so in many other cases And in all cases where the Queens Estate is determined the Subject may enter into the Land without Office or Ouster le main c. And they said if it had been in the possession of a common person that by such a claim the force of the Fine had been defeated and this appeareth by the case between Smith and Stapleton in the Commentaries where it is holden that where a Fine is levied with Proclamations by Tenant in Tail of an Advowson Rent or Tithes by claim made by the Issue in Tail before the Proclamations are passed where the Tenant in Tail is dead the same is defeated and that the Proclamations passing afterwards shall not be of force to bar the Intail And they said that the conveyance therof to the Queen after the Fine levied doth not make it to be in worse case And admit it will not serve against the Queen yet the claim will serve against Bret when he had entred by the performance of the Condition And Clench and Gawdy said that Bret shall not take advantage of this covenous Deed made by himself of very purpose to bar the party who had right and to put him without remedy no more then where the Disseisor enfeoff his Father who dies seised he shall not take advantage of this descent or if he who hath cause of Action to recover Lands by Covin causeth another to enter into the Lands to the intent to recover against him and does it accordingly for the Covin the Recovery shall
wit the 6th day of July in the same 6th year by his Deed of the same date the said Christopher enfeoffed the said Sir John Chichester and his Heirs of the said Mannor and by the same Deed warranted it for him and his Heirs to the said Sir John Chichester and his Heirs wherupon the said Sir John Chichester entred into the said Mannor after which to wit the first day of October 12 Eliz. the said Christopher died after which the 7th day of November 13 Eliz. the said Stretchley Chudleigh died without Issue of his body And after the death of the said Sir Richard Chudleigh to wit the 6th day of September 7 Eliz. the said Sir John Chichester enfeoffed one Philip Chichester and his Heirs of the said Mannor to the use of the said Philip and his Heirs And the said Close being Copyhold and Customary Land of the said Mannor demisable by the Lord of the same Mannor or his Steward for the time being for life or lives by Copy of Court-roll according to the custom of the said Mannor The said Philip at a Court holden at the said Mannor for the said Mannor the 8th day of December 15 Eliz. by Copy of Court-roll granted the said Close to the said John Frain for Term of his life according to the custom of the said Mannor after which to wit the 11th day of March 28 Eliz. the said John Chudleigh being now Heir to the said Christopher enfeoffed the said William Dillon of the said Mannor to have and to hold to him and his Heirs to the use of the said William and his Heirs for ever wherby he entred and was seised untill the said John Fraine entred into the said Close upon him the 8th day of February 30 Eliz. upon which entry of the said Fraine this Action is brought And for difficulty of the case it was adjourned into the Exchequer Chamber before all the Iustices and Barons of the Exchequer And there it was agreed by all that a Warranty descending upon an Infant shall not bind him in case that the entry of the Infant be lawfull into the Land to which the Warranty is united But the Infant ought in such a case to look well that he do not suffer a descent of the Land after his full age before he hath made his re-entry for then the Warranty when he is to have an Action for the Land shall bind him And they agreed also that a Copyhold granted by a Disseisor or any other who hath the Mannor of which it is parcel by wrong shall be avoided by the Disseisee or any other who hath right to the Mannor by his entry or recovery of the Mannor And so by Popham it was agreed by the Iustices in the case of the Manner of Hasselbury Brian in the County of Dorset between Henry late Earl of Arundell and Henry late Earl of Northumberland but then he said that it was agreed that admittance upon surrenders of Copyholders in Fee to the use of another or if an Heir in case of a Descent of a Copyhold were good being made by a Disseisor of a Mannor or any other who hath it by Tort because these are acts of necessity and for the benefit of a stranger to wit of him who is to have the Land by the surrender or of the Heir And also Grants made by Copy by the Feoffee upon condition of a Mannor before the Condition broken are good because he was lawfull Dominus pro tempore And for the matter upon the Statute of 27 H. 8. what shall become of this future use â—imited to the first second and other Issues Males not in Esse at the time of the Feoffment Ewens Owen Bateman and Fennor said That an Use at Common Law is Use what it is no other then a confidence which one person puts in another for a confidence cannot be in Land or other dead thing but ought alwaies to be in such a thing which hath understanding of the trust put in him which cannot be no other then such a one who hâ—th reason and understanding to perform what the other hath committed to him which confidence shall bind but in privity and yet the confidence is in respect of the Land but every one who hath the Land is not bound to the confidence but in privity shall be said to be in the Heir and the Feoffee who hath knowledge of the confidence and in him who cometh to the Land by Feoffâ—ent without consideration albeit he hath no knowledge therof and yet every Feoffee is not bound although he hath knowledge of the confidence as an Alien Person Attaint and the like not the King he shall not be seised to anothers use because he is not compellable to perform the confidence nor a Corporation because it is a dead body although it consist of naturall persons and in this dead body a confidence cannot be put but in bodies naturall And this was the Common Law before the Statute of 27 H. 8. Then the Letter of the Statute is not to execute any Vse before that it hapneth to be an Vse in Esse for the words are Where any person is seised to the use of any other person that in such a case he who hath the Vse shall have the same Estate in the Land which he had before in the Vse Ergo by the very letter of the Law he ought to have an Estate in the Vse and there ought to be a person to have the Vse before the Statute intends to execute any possession to the Vse for the words are expresse that in every such case he shall have it therfore not another And therfore the Statute had purpose to execute the Vses in possession Reversion or Remainder presently upon the conveyance made to the Vses But for the future Vses which were to be raised at a time to come upon any contingent as to the Infants here not being then born the Statute never intended to execute such Vses untill they happen to have their beeing and in the mean time to leave them as they were at Common Law without medling with or altering of them in any manner untill this time and if before this time the root out of which these contingent Vses ought to spring be defeated the Vse for this is utterly destroyed and shall never afterwards have his being as here by the Feoffment made by the said Sir John Saintleger and his Co-feoffees who then were but as Tenements pur auter vie to wit for the life of Christopher and which was a forfeiture of their Estate and for which Oliver Chudleigh might have entred it being before that the said Strechley or John Chudleigh were born the privity of them from Estate being the root out of which this future use ought to have risen is gone and destroyed and therfore the Contingent Vses utterly therby overthrown As if before the Statute of 27 H. 8. Tenant for life had been the remainder over in Fee to an Vse
of his Executors for years this Estate for years is not now vested in any because a man cannot have an Executor during his life and yet it remains as in the custody of the Law untill there are Executors to take it And he said that the case of the Lady Bray was as strong to prove the case in question to be at he takes it which cannot be answered for if she had married with the Lord Bray by the assent of the Councell assigned for it according to the agreement she had taken an Estate by the Contingency but in as much as she did not do it it was otherwise And we are to consider well what we do in this case it is a Tree the branches wherof over-shadow all the Possessions of the Realm in effect for the Estates and Leases in manner of all stand upon those assurances to Uses and to pull up such a Tree by the roots is to put all the Realm in a confusion and therfore if there be any mischief therin it is better to help it by Parliament then to alter it by Judgment And so upon the whole matter I conceive that Judgment ought to be given for the Plaintiff Anderson That an Use was not at Common Law for the Common Law had no respect to it but to the Feoffee and it was the person who by the Law had any thing to do in the Land and not Cestay que Vse for he might punish Cestay que Vse for his medling with the Land and Cestay que Vse had no remedy against him by no means But by Suboepna in the Court of Conscience And further an Vse being limited to another in Fee no Vse can be limited further therupon for any Estate And it hath been well sayd that the letter of the Statute of 27 H. 8. did not tend to execute this Vse which was not in Esse and for the intent therof that it did not tend to execute any contingent Vse untill that it happen which is proved by the case that an Estate for years being assigned over or granted to an Vse the Vse of this is not executed by the Statute of 27 H. 8. as it was agreed about 27 Eliz. and what was the reason in the case but because there was not any Seisin in the Vse but only a possession to the Vse wherby the words of the Statute are much to be regarded And here how can there be a Seissin to the Vse which is not it cannot be and therfore for the like reason as in the other case it is never executed nor shall be removed by means of such an Vse untill it hapneth to be an Vse in Esse And for Brents Case I have alwaies taken the better opinion to be that the Wife cannot take in the case for the mean disturbance notwithstanding the Iudgment which is entred therupon which was by assent of the parties and given only upon a default made after an Adjournment upon the Demurrer for he said that he had viewed the Roll therof on purpose and if it be that such a Contingent Vse be not executed untill it hapneth to be in Esse here it appeareth that by the Feoffment Christopher is in of another Estate which was not subject to the Vse because he is in by forfeiture and wrong made to this Estate and therfore not bound to the Vse in Contingency although he made it without consideration and although he had notice of this contingent Vse and therfore this contingent Vse utterly defeated before it had any being But in all the Cases put on the other side it doth not appear that there was any thing done in disturbance of these mediate uses before they hapned and therfore not to be compared to this case wherby he conceived that the Plaintiff ought to be barred Popham said That in as much as the manner of assurance made by Sir Richard Chudleigh may seem strange and in some manner to touch the reputation of the said Sir Richard who was a grave and honest Gentleman to those who heare it and do not know the reason why he did it which I remember to be this as I have heard to wit That the said Christopher had killed one Buller a Gentleman of good reputation wherupon he fled into France and the said Sir Richard doubting what would become of his Estate if he should dye before he had setled his Land and yet having a desire to have power to undo the assurance which he purposed to make if he pleased his Councell then thought the best way to make and devise the assurance so that such an Estate of Inheritance might therby be in him which could not descend to the said Christopher and yet such that he might therby undo the assurance made by the Recovery when he pleased and yet such also as should never take effect in any of the Issues of his other Wives to the prejudice of his right Wives because he never had a purpose to marry with any of these Wives And to that which hath been touched by Periam That this Limitation first made is a Fee-simple in Sir Richard I conceive cleerly the contrary For if it should be so then no Vse could be limited over upon this Fee-simple as hath been said before and therfore all the remainder of the Case had been to no end but he said that it was an Estate-tail speciall in Sir Richard and denied the opinion of Ay scough taken so in 20 H. 6. and this by reason of the Statute of Donis conditionalibus which wills Quod voluntas donatoris secundum formam doni in charta doni manifeste expressam de caetero observetur And here it is expresse that the Heirs of Sir Richard begotten upon any of the said Wives shall have the Land and therby it shall be understood that his Heirs shall be intended by common intendment the Heirs by him To which opinion Anderson agreed And for the matter Popham conceived cleerly that there was not any such use at Common Law as we commonly call an use and yet he acknowledged there were alwaies trusts at Common Law but every trust is not to be said an use for none will doubt but that a tâ—ust may be and is many times put in others at this day as upon puâ—chaseâ— made in other mens names and assurances also upon trust and yet we will not say that this is an use and without doubt such trusts were at Common Law but not the uses aforesaid and the reason that moved him to take the Law to be so was that he had not seen any ancient record Statute or Book of Law nor any writing before the time of Ed. 3. which made any mention of this word use and if it had been at Common Law without doubt as they said some mention would have been made therof The reasons which are alledged in 27. H. 8. and in the case vouched 24. H. 8. that a trust was at Common Law is by the one of them
not properly said an Use untill that it be said in Esse to take the Profits themselves But I am to turn this Argument against him who made it for if it be so the Use can never be in suspence and iâ— so it follows that no Possession by means of any such Use can be in suspence but staies where it was before to be executed when the Use happens to be in beeing But as to that that a Reversion or Remainder may be of that which we call an Use so also may such a Use be in suspence in the same manner as the Possession it self but not otherwise And as to Cramners Case formerly put the Law is so because nothing appeareth in the case to be done to the disturbance of this contingent Vse in the interim before it happen But upon the Case put of the Lady Bray upon which it hath been so strongly relied it was thus The Lord Bray made an assurance of certain Lands to the use of certain of his Councell untill the Son of the said Lord Bray should come to the age of 21. years for the livelyhood of the said Son and of such a Wife as he shall marry with the assent of the said Councell and then to the use of the said Son and of the said Wife and of the Heirs of the body of the said Son The Father dies the Son was become in Ward to the King after which one of the said Councellors dies the King grants over the Wardship of the said Son after which the said Lord Bray by the assent of his Guardian and of the surviving Councellors marries the Daughter of the then Earl of Shrewsbury after which the Husband aliens the same Land to one Butler and dies and upon Action brought by the said Lady against the said Butler for the same land she was barred by Judgment and upon what reason because she was not a person known when the Statute was made which must be in every case of a Freehold in Demesne as well in case of an Use as in case of a Possession And therfore a Lease for years the Remainder to the Heirs of I. S. then living is not good and the same Law of an Vse And so it was agreed by all the Iustices very lately in the case of the Earl of Bedford but in these Cases it remaineth to the Feoffor and because it doth not appear at the time of the assurance who shall be the Wife of the said Son so that there was not any to take the present Free-hold by name of the Wife of the Son she takes nothing by the assurance but this reason makes for our side to wit That if there were none to take the Free-hold in Demesne from the Use when it falleth he shall never take it The other reason in this Case was because she was not married by the consent of all the Counsellors for that one was dead nor according to the power given by the agreement but by the authority of the Guardian that the power which the Father had upon his Son was ceased And Nota That by a Disseisin the contingent Use may be disturbed of his Execution but there by the regresse of the Feoffee oâ— his Heirs when the Contingent happen it may be revived to be executed But by the release of the Feoffee or his Heirs the Contingent in such a case by Popham iâ—â—â—â—red oâ— all possibility at any time to be executed And to that which hath been said that the generall and universall Assurances of men throughout all the Realm at this â—ay arâ— by means of Vses and that it shall be a great deal of danger and inconvenience to draw them now in question or doubt and that it now trembleth upon all the Possessions of the Realm and therfore it shall be too dangerous to pull up such Trees by the roots the Branches wherof are such and so long spread that they overshadow the whole Realm Popham said That they were not utterly against Uses but only against those and this part of them which will not stand with the publike Weal of of the Realm and which being executed shall make such an Estate which cannot stand with Common Law of the Realm or the true purport of the Statute and therfore he said that it was but to prune and cut off the rotten and corrupt branches of this Tree to wit that those which had not their substance from the true Sap nor from the ancient Law of the Realm nor from the meaning of the Statute and so to reduce the Tree to its beauty and perfection The same reason he said might have been made in the time of Edw. 4. against those Arguments which were made to maintain the common Recoveries to bar Estates-tail But if such a reason had been then made it would have been taken for a bare conceit and meer trifle and yet Vses were never more common then Estates-tail were between the Statute of Donis conditionalibus and the said time of Edw 4. But the grave Iudges then saw what great trouble hapned amongst the people by means of Intails and what insecurity happened by means therof to true Purchasors for whose security nothing was before found as we may see by our Books but collaterall Warranty or infinite delay by Voucher and thus did the Iudges of this time look most deeply into it wherupon upon the very rules of Law it was found that by common Recovery with Vouchers these Estates-tail might be barred which hath been great cause of much quiet in the Land untill this day that now it begins to be so much troubled with the cases of Vses for which it is also necessary to provide a lawfull remedy But he said plainly That if the Exposition made on the other side shall take place it will bring in with it so many mischiefs and inconveniencies to the universall disquiet of the Realm that it will cast the whole Common-wealth into a Sea of troubles and endanger it with utter confusion and drowning And to that which was said That a Remainder to the right Heirs of I. S. or to the Heirs of the body of I S. or to the first Son as here are so in the custody of the Law that they cannot be drawn out that therfore no forfeiture can be made by the Feoffment made by him who hath the particular Estate To that he said That a Disseisin made to the particular Estate for life draws out such Remainders to the right Heirs as is proved expresly by 3 H. 6 where it is holden that a collaterall Warranty bars such a Remainder in obeyance after a disseisin And by Gascoigne 7 H. 4. If such a Tenant for life makes a Feoffment in Fee it is a Forfeiture but he conceived that in the life time of I. S. none can enter for it but this is not Law and when by the Feoffment the particular Estate is quite gone in possession and in right also the remainder shall never take
in execution in all Circuits That if a man taken for Felony be examined by a Justice of Peace it appeareth that the Felon is not bailable by the Law and yet the Justices commit him to Goal but as upon suspition of Felony not making mention for any cause for which he is not bailable wherby he is brought before another Justice of Peace not knowing of any matter why he ought not to be bailed wherupon they bail him these Justices ought to be fined by the Statute of 1 2. Phil. Mar. for they offend if they bail him who by the Statute of Westm 1. is not bailable and therfore they at their peril ought so to inform themselves before the bail taken of the matter that they may be well satisfied that such a one is bailable by Law and therfore observe well the Statute of Westm 1. cap. 18. who is bailable and who not by the Law And it seems that no Justice of Peace could have bailed any one for Felony before the Statute of 1 Rich. 3. cap. 3. which is made void by 3 H. 7. cap. 3. for before this he ought to have been bailed by the Sheriff or other Keeper of the Prison where he was in Ward or by the Constable and by no other Officer unlesse Justices of the Kings Bench Justices in Eyre or Justices of Goal-delivery Herbin versus Chard and others 2. IN Trespasse by William Herbin Plaintiff against Chard and others Defendants for a Trespasse made at Pynon Farm in Netherbury and Loder in the County of Dorset the Case upon the Demurrer appeared to be this The Lord Mordant was seised of the Farm in his Demesne as of Fee and so seised demised it to Philip Fernam Elizabeth his wife and Iohn Fernam the eldest Son of the said Philip for term of their lives and of the Survivor of them and the said Eliz. died after which the said Philip his Father demised his part of the Farm by his Deed indented dated 13. Mart. 32. Eliz. to Philip his Son and Toby Fernam his Son for eighty years immediatly after the death of the said Philip the Father if the said Iohn Fernam shal so long live with divers remainders over for years depending upon the life of the said Iohn after which the said Philip the Father died and Iohn survived him and demised the said Farm to the Plaintiff upon whom the Defendants entred in right of the said Philip and Toby and whether their entry were congeable was the question And it was moued by Goodridge of the Middle-Temple that the entry of the Defendant was not lawfull because the said John was now in by the Lessor and not by his joynt Companion And further he had no power to dispose therof beyond his own life for suppose that he makes a Lease therof for years and afterwards grant over his Estate to a stranger and dies the Lease for years is therby determined albeit his joynt Companion be yet living and that his Estate continues And yet he agreed that if had made a Lease for years to begin at a day to come as at Michaelmas following or the like that this had been good for it is an Interest in the Grantee to be granted over for the presumption that it might be executed in his life but in the other case there is not any possibility that he who hath not but for his life can demise it to begin after the Estate made to him is determined But on the other part it was moved that the Demise remains in force for the life of the said John for at the first every one had an interest for the life of the other also and therfore if one Ioynt-tenant for life make a Lease for years in possession and dies the Lease yet continues And Crook the younger alledged that it was adjudged at last Hartf Term If a man possessed of a Term for years in right of his Wife makes a Lease for years of the same Lands to begin after his death dies during the Term without other alteration of it and the Wife survives him that now the Lease made by the Husband is good and that the like case as this by the opinion of Clench and Walmsley was decreed to be good in the Chancery Arton versus Hare 3. IN a second deliverance between Francis Arton Plaintiff and Henry Hare Avowant the case appeared to be this William Cocksey Esquire was seised in his Demesne as of Fee of the Mannor of Wolverton in the County of Worcester and so seised in Octab. Mich. 7 Eliz. levied a Fine of the said Mannor to certain persons to the use of the said William and Alice his Wife and the Heirs of William untill a marriage had between Martin Croft and Anne Wigstone and after this marriage to the use of the said William and Alice his Wife and the Heirs of the body of the said William and for defualt of such Issue to the use of the said Martin Crofts and Anne and the Heirs Males of the body of the said Martin upon the body of the said Anne begotten untill the said Martin should go about to alien sell grant or give the said Mannor or any parcell therof or to suffer any Recovery or levy any Fine therof or make any discontinuance c. And after the Estate of the said Martin and Anne and of the Heirs Males of their bodies to the Premisses by any such attempts determined and finished then to the use of the said Anne for her life and after to the use of the Heirs Males of the body of the said Martin upon the body of the said Anne lawfully begotten and for default of such Issue to the use of the Heirs of the body of the said Martin and for default of such Issue to the use of Giles Croft brother of the said Martin and the Heirs Males of his body untill c. as before and after to the use of the Heirs of the body of the said Giles and for default of such Issue to the use of Edmund Crofts the third brother of the said Martin and of the Heirs Males of his body as is before limited to the said Giles with remainders over afterwards the marriage was had between the said Martin and Alice after which the said Martin and Giles died without Issue without any thing done by the said Martin to determine his Estate or by the said Giles to determine his Estate if any had been And it was agreed by all the Court that as this case is no remainder can enure over to the said Giles without an attempt precedent by the said Martin to determine his Estate because the Estate of Giles is not limited to begin but upon such an attempt precedent And in the same manner Edmund shall have nothing untill the Estate of Giles determine by some attempt made by him if the said Giles had an Estate because the Estate of Edmund depends upon the attempt made by Giles
precedent to it which not being done the Estate of Edmund never hapned to be and therfore he who cometh in under a Discontinuance made by the said William Cocksey after the death of Martin and Giles without Issue notwithstanding the Remitter of the said Alice in the case is to have the Land against those who come in by the said Edmund and upon this point only Iudgment was given accordingly in the Kings Bench. Grenningham versus the Executors of Heydon 4. IN Debt upon an Obligation of 200. marks by Richard Grenningham Plaintiff against the Executors of one Ralph Heydon Defendants the case appeared to be this upon Demurrer The said Heydon was bound to the Plaintiff in 200. marks the Condition wherof recites that wheras the said Heydon had received of the said Grenningham 76 l. 6 s 8 d. before the date of the said Obligation of 200. marks in payment and satisfaction of certain Obligations and Bills of debt remaining in the hands of the said Heydon and specified in the Condition what they were in certain and the which said Bills Obligations the said Heydon is to deliver or cause to be delivered to the said Grenningham his heirs or assigns before the Feast of S. Michael next ensuing the date of the said Obligation or otherwise the said Heydon his Executors Administrators or Assigns or some of them before the same Feast shall make or cause to be made and delivered to the said Plaintiff his Heirs and Assigns such good and sufficient Acquittances for the payment of the said summs of money formerly mentioned as the said Plaintiff his Heirs Executors or Assigns shall devise or cause to be devised by the Counsel of the said Plaintiff his Heirs or Assigns before the Feast without fraud or deceit that then the said Obligation shall be void c. And before the Feast the said Plaintiff did not devise any acquittance Whether now the Obligation be saved by the Disjunctive without delivering the Obligations and Bills before named before the Feast of S. Michael Rot. 36 37. Eton and Monney versus Laughter 5. IN Debt upon an Obligation of 400 l. by Thomas Eton and Roger See this Case Coke lib. 5. 21. by the name of Laughters case Monney Plaintiff against Thomas Laughter Defendant who was bound together with one Richard Rainford to the said Plaintiffs the Condition of which Odligation was That if the said Richard Rainford after marriage had between him and Jane Gilman Widow together with the said Jane alienate in Fee or Fee-tail all that great Messuage of the said Jane in London in the Tenure of William Fitz Williams Esquire if then the said Richard Rainford in his life time purchase to the said Iane her Heirs and Assigns Lands and Tenements of good Right and Title and of as good value as the money raised upon the alienanation of the said Messuage amounts unto or leave to the said Iane after his decease as Executrix or by Legacy or other good assurance so much money as he shall receive or have upon the said Sale that then the Obligation shall be void after which the said Richard Rainford married with the said Jane and the said Richard and Jane sold the said Messuage in Fee by Fine for 320 l. received by the said Richard Rainford after which the said Iane died no Lands being purchased to the said Iane by the said Richard and the said Richard yet living Michaelmas Term 37 38. Eliz. Sawyer versus Hardy 1. IN an Ejectione firmae by Christopher Sawyer Plaintiff against Edmund Hardy Defendant for a Messuage in S. Martins upon a Demurrer the case was this A Lease was made of the said Messuage to one Margaret Sawyer for 40. years upon Condition that if the said Margaret should so long continue a Widow she should dwell and stay in the same Messuage the said Margaret continued a Widow and dwelt in the same house all her life and died during the said Term of 40. years making the Plaintiff her Executor and by award the Plaintiff had Judgment to recover For by Popham Gawdy and Clench this now was no Condition nor Limitation for it hath no certain conclusion upon the that if to wit that then the Term shall continue or that she shall pay so much or otherwise what the conclusion shall be none can imagine As if such a Lease be made upon condition that if the Lessee does such a thing without other conclusion it is a good Lease for 40. years for none can imagine what the conclusion shall be in such a case or that then the Lease shal be void or that he shall re-enter or that the Lessee shall forfeit so much or what shall happen upon it for which incertainty it shall be taken as a void Clause But by Popham if it had been Sub conditione si tamdiu vixerit it had been good to determine the Lease but it is otherwise of the word quod si for the incertainty as before And they all agreed that if the Lease had been for 40. years Si tamdiu sols viveret inhabitaret in eodem Messuagio that the Lease had been determined by her marriage or death In the same manner as if it had been Si tam diu vixerit And so in truth had been the case if it had been well pleaded but by pleading the advantage therof was lost and the truth not disclosed But by Popham If a Lease be made for 40. years if he shall dwell in the same for his life there it is good for 40. years upon performance of the Condition the diversity appeareth to wit where it is if he shall dwell there during the Term and where it is if he shall inhabit there during his life Goodale versus Wyat. 2. IN an Ejectione firmae by Cuthbert Goodale Plaintif against John Wyat See this Case Coke lib. 5. fol. 95 96. by the name of Goodales case Defendant for a Meadow in Aylesbury in the County of Buck. called Diggelmore upon a speciall Verdict the case was this Sir Iohn Packington Knight enfeoffed therof one Ralph Woodliff to have and to hold to him and his Heirs upon condition that if the said Sir Iohn within a year after the death of the said Ralph pay to the Heirs Executors or Administrators of the said Ralph the summ of a 100. marks of lawfull money that then the said Feoffment and Seisin made therupon shall be void Ralph Woodliff made a Feoment over to others therof and died intestate and Administration was committed to Anne his Wife and Drew Woodliff his Son and Heir who gave a Warrant of Attorney to Thomas Goodale then seised of the said Meadow by mean conveyances for the receit of the said 100. marks with Covenant that none of them shall do any act or thing that shall be preâ—udiciall or hurtfull to the said Thomas Goodale for the receiving and enjoying of the said summ after which it was certified to the said Sir Iohn Packington by
and not otherwise to wit 100 l. therof in thâ—se words On that day twelvemonth next after the day of his death and the other 100 l. that day twelvemonth next after c. and made the said John Slaning his Executor and afterwards to wit the 8. day of April 25 Eliz died without Issue Male of his body the said Agnes took to Husband one Edmund Marley and upon the 8. day of April 26 Eliz. the said John Slaning paid the first 100 l. to Agnes then being living and upon the 8. and 9. daies of April 27 Eliz. Nicholas Slaning of Plumpton Son and Heir of the said John Slaning who died in the mean time an hour before the Sun set and untill the Sâ—n was set came to the House where the said Edmund and his Wife inhabited in London and tendred the last 100 l. and that neither the said Edmund nor Agnes his Wife were there to receive it but that the said Edmund voluntarily absented himself because he would not receivâ— the 100 l. and that therupon the Wife of the said Edmund died having Issuâ— two Daughters the Lands being holden by Knights-service in Capite and the said Daughters being yet within age and all this being found by Office by the opinions and resolutions of Popham and Anderson and the rest of thâ— Councel of the Court of Wards the said Heirs now in Ward shall have nothing but that which doth not passe by the conveyance to John Fits and his joynt Feoffees which was only that which was in the possessions of Peterfield and Atwill and that the Livery was good of the rest albeit the Attorny did nothing of that which was in Lease notwithstanding the words of the Warrant that they should enter into all and then shall make the Livery And they agreed that the Condition doth not â—ind neither the said John Slaning nor Nicholas his Son because they had not all the Land according to the purport of the Condition which was that he who had all therof should pay the 200 l. wheras here that which was in the possession of Peterfeild and Atwill did not passe to them for want of Attornment for a Condition ought to be taken strictly And further the payment was referred by the Indenture to be according to the Will or by the Will and the 200 l. was devised as a Legacy which ought to be paid but upon demand and not at the peril of the Executor and therfore the nature of the payment of it is altered by the intent of the Will and being not demanded there is no default in the said Nicholas Slaning of Plumpton to prejudice him of his Land if it had been a Condition for then it shall be but a Condition to be paid according to the nature of a Legacy upon demand and not at the peril of the party And whether the word twelve-month shall be taken for a year or twelve months according to 28. daies to the month as it shall be of eight or twelve months or the like And they agreed that in this case it shall be taken for the whole year according to the common and usuall speech amongst men in such a case and according to this opinion Wray who is dead Anderson and Gawdy made their Certificate to the late Chancellor Sir Christopher Hatton in the same case then being in the Chancery and a Decree was made accordingly And many were of opinion that by his absence by such fraud he shall not take advantage of the Condition being a thing done on purpose if it had been to be performed at his peril Kellies Case WIlliam Kelly and Thomasine his Wife were seised of certain Lands in S. Eth in the County of Cornwall called Karkian to them and to the Heirs of their two bodies between them lawfully begotten by the Gift of one William Dowmand Father of the said Thomasine 11 H. 8. a long time after which Gift to wit 25 H. 8. A Fine Sur conusance de droit come ceo que il ad per was levied by Peter Dowmand Son and Heir of the said William Dowmand to William Kelley of the Mannor of Dowmand and of a 100. acres of Land 300 acres of Meadow 300. acres of Pasture and a 1000. acres of Furzse and Heath in Dowmand S. Eth. Trevile and divers other Towns named in the Fine who rendred the same back again to the said Peter in tail with diverse Remainders over and this Fine was with proclamations according to the Statute after which the possession of Karkian continued with Kelly and his Heirs according to the first Intail and the Mannor of Dowmand and the Remainder of the Lands in these Towns which were to the said Peter Dowmand to him and his Heirs according to the render untill nine years past that by Nisi prius in the Country upon the opinion of Manwood late chief Baron the Land called Karkian was recovered against the Heir of the said William Kelly by virtue of the said Fine and Render because all the Land which the said Peter Dowmand and the said William Kelly also had in all these Towns named in the Fine were not sufficient to supply the Contents of acres comprised in the said Fine And what the Law was in this case was referred to the chief Iustices the Master of the Rolls Egerton and the now chief Baron â—ut of the Chancery who all agreed upon all this matter appearing that nothing shall be said to be rendred but that which indeed was given by the Fine and Karkian does not passe to the said William Kelly by the Fine for as to it the Fine is but as a release of Peter to him and therfore shall not be said to be rendred to the said Peter by the Fine where no matter appeareth wherby it may appear that it was the intent of the parties that this shall be rendred And therfore Popham said that by so many Fines which have been levied in such a manner and to such who have Land in the same Towns where the Conusance hath been considering that alwaies more Land is comprised in Fines by number of acres then men have or is intended to passe by them at some time or in some age it would have come in question if the Law had been taken as Manwood took it but in all such cases the Possession hath alwaies gone otherwise which shews how the Law hath been alwaies taken in such cases And therfore if a man be to passe his Mannor of D. to another by Fine Executory and he levy the Fine to him by the name of the Mannor of D. and of so many acres of Land in D. and S. being the Towns in which the Mannor lies after which the Conuzor purchaseth other Lands in these Towns the Fine before the Statute of Vses shall not be executed of these Lands purchased after the Conusance and the Fine shall work to these which he had power and intent to passe and no further And it seemed to them that an
Vse may be averred without Deed upon a Fine sur Render And all agreed that if there had been a Deed to have declared the purport of the Fine that the Fine shall not be taken to extend further then is comprised in the Deed. And what is the cause therof the Deed or the intent of the parties and none can say but that it is the intent of the parties and not the Deed and the intent may as well appear without the Deed as with it albeit it be not so conclusive by Parole as by Deed. And therfore suppose I have 100. acres of Land in a Close in D. and I. S. hath another 100. acres in the same Close and Town and I. S. hath a 100. acres of Land in the same Town out of this Close and my intent is to levy a Fine to I. S. of the whole Close by the name of 200. acres of Land with a Render as before and I levy it accordingly shall the Render enure to the Land which I. S. had in the same Town It is cleer that it shall not although it be without Deed why then shall the Fine here be taken to work rather to the Land called Karkian then to any other Lands which any other had in the same Towns when it appeareth plainly that it never was the intent of the parties that the Fine should extend to these Lands called Karkian and it was decreed in Chancery accordingly Hall versus Arrowsmith 4. IN the case between Hall and Arrowsmith it was agreed by the whole Court in the Kings Bench That if a Copyholder for life hath licence to make a Lease for three years if he shall live so long and he makes a Lease for three years without such a Limitation that yet this is no forfeiture of his Estate because the operation of Law makes such a Limitation to the Estate which he made to wit that it shall not continue but for his life and then such an express Limitation in the case where the Law it self makes it is but a meer trifle and yet if a Lessee for life makes a Lease for years and he in the Reversion confirm it it remains good after the death of the Tenant for life but this then shall be as if it had been made by him in the Reversion himself and shall be his Lease But if the Lease there had been made determinâ—ble upon the life of Tenant for life the confirmation therof by him in the Reversion will not help him after the death of him who was Tenant for life Causa patet But in the principall case if the Copyholder had had an Estate in Fee by Copy it had been a forfeiture of his Estate to make an absolute Lease because in that case he does more then he was licensed to do And they agreed that such a licence cannot be made to be void by a Condition subsequent to the execution therof to undo that which was once well executed But there may be a Condition precedent united to it because in such a case it is no licence untill the Condition performed but the licence before mentioned is not a condition all Licence but a Licence with a Limitation and therfore hath not been of force if the Limitation which the Law makes in this case had not been and the Limitation in Law shall be preferred before the Limitation in Deed where they work to one and the same effect and not different Arthur Johnsons Case 5. ARthur Johnson was possessed of a Term for years and so possessed assigned this over to Robert Waterhouse and John Waterhouse being Brothers to the Wife of the said Johnson to the use of the said Wife the said Johnson dies and makes his Wife his Executrix after which the said Wife takes Robert Witham to Husband who takes the Profits of the Land during the life of his said Wife the Wife dies Intestate her said Brothers being next of kin to the said Wife took administration as well of the Goods of the said Wife as of her first Husband And whether the said Waterhouses or the said Witham shall have this Lease or the use therof was the question in the Chancery and therupon put to the two chief Iustices upon which they and the chief Baron and all the other Iustices of Serjeants-Inne in Fleetstreet and Beamont also were cleer in opinion that the said Administrators had now as well the Interest as the Vse also of the said Term as well in Conscience as in Law and that they had the use as Administrators to the said Wife and that the said Witham shall not have it because it is as a thing in Action which the Administrators of the Wife alwaies shall have and not the Husband As if an Obligation had been made to the use of the Wife And this opinion was certified accordingly to the Lord Keeper of the great Seal of England and it was so decreed Taunton versus Barrey 6. IN an Ejectione firmae brought by Giles Taunton Plaintiff in the King Bench against Giles Barrey Defendant the Case was thus Iohn Coles Esquire made a Lease of the Lands in question to the Father of the said Barrey for divers years depending upon the life of the Lessee and of the said Defendant and of the Survivor of them upon condition that the said Father should not alien without the consent of the said Coles his heirs after which the said Father devised the Term to the said Defendant and died making his Executor who assented And the question upon this point found upon a speciall Verdict was whether upon the matter the Condition were broken and by the opinion of the whole Court adjudged that it was for in such a case he ought to have left it to his Executor without making any Devise of it for the Devise is an Alienation against him and therfore it was agreed that the Plaintiff shall recover Term 37 Eliz. Rot. between Roper and Roper Michaelmas Term 38 39. Eliz. Everets Case 1. THis Case was moved by the chief Iustice to the other chief Iustices at Serjeants-Inne in Fleetstreet concerning one Everet who before was attaint for stealing of a Horse reprieved after Iudgment and Indited again for stealing another Horse before this Attainder And the Vicar of Pelton in the County of Somerset was Indited as accessary before this Felony for the procurement of it And Everet being again Indited upon this last Inditement did not plead that he was formerly Indited of another Felony c. but acknowledged the Inditement wherby the Accessary was Arrained tried and found guilty and had his Iudgment also as the principall but the Execution of the Accessary was respited And now moved whether upon this matter it shall be fit to execute the Accessary the principall being executed And it seemed convenient to all the Iustices and Barons that he shall be executed and that the matter was cleer in this case because the principall did not take advantage of his
demurred upon the Avowry And Andrews argued for the Plaintiff 1. The Defendant ought to have alleadged certainly that they were seised in Fee for Littleton saith that in Counts and pleadings a man ought to shew how he is seised 8 E. 3. 55. 13 Eliz. Dyer 299. Pl. 31. An Inquisition was found upon an extent of a Statute-merchant and doth not shew how the Conusor was seised but only that he was seised and the Inquisition holden void But it may be objected that if Land be given to a Dean and Chapiter that they have fee 11 H. 7. 12. I confesse it But the constant use of pleading hath alwais been in case of a Bishop Colledge c. to say that they were seised in Fee as appears in Hill and Granges case and Co. lib. 6. the Dean and Chapiter of Worcesters case and Co. lib. 11. 66. Magdalen Colledge case and it appeareth by 20 H. 7. in the Abbey of S. Austins case that an Abbey may have a Lease Prae auter vie and so perhaps here the Dean had a Lease but Prae auter vie and therfore ought to have alledged that he was seised in Fee if the truth were so And he moved other exceptions as 1. That the Defendant intitled himself to a Lease as Executor and doth not plead Literas testamentarias 2. That the Defendant entitles himself to a Rent part of which was due in the time of the Testator and part in his own time and doth not shew when the Testator died and therfore the Avowry not good Jermy for the Defendant that the Avowry is good and it cannot be otherwise intended but that they are seised in Fee 11 H. 7. Lands given to a Major and Comminalty is Fee-simple but otherwise of an Abbot and Parson Plow 103. and Dyer 103. A Seisin in Fee is implied by Seisin In jure Collegii and because it hath been objected that he may be seised Prae auter vie this is but a forraign intendment for a Fee is alwaies intended Seisin in Fee-simple For the second objection because Non profert literas testament true it is if he entitle himself meerly as Executor he ought to bring in Literas testamentar but our case is not so for here we are Defendants and we endeavour only to excuse a Tort 36 H. 6. 36. Where a man is Plaintiff he ought to show Literas testamentar that so the Court may see that he hath cause of action but here it is only by way of excuse For the third that the death of the Testator doth not appear is not materiall for if any part be due to him it is due as Executor Doderidge they ought to have pleaded that they were seised in Fee true it is that Land given to a Major and Comminalty is Fee-simple and the reason is because they are perpetuall and if the Estate be not limitted they shall take according to their continuance 11 H. 4. 11 H. 7. and 27 H. 8 Dockrayes case they may be seised Prae terme dauter vie but if they had pleaded that they were seised to them and their Successors this pleading is good Prima facie 17 E. 3. 1. Crew chief Iustice all the authorities are that ther were seised in Fee Injure Collegii and it is good to admit a new way of pleading Jones Iustice Tenant Prae auter vie makes a Lease for years and cestui que use dies he cannot have an action of Debt against Lessee for years for years for he is now Tenant at sufferance But for the first point it seems to him that the pleading is not good for although in point of Creation they take a Fee by a Gift to Dean and Chapiter yet in pleading they ought to alledge their Estate specially for they may have an Estate Prae auter vie And this is in an Avowry which shall be taken strickly And by Crew chief Iustice the Defendant here ought to shew Literas testamentar for he is an especiall Actor in the Avowry And by Doderidge Longissimum vitae tempus est 100. years Co. lib. 10 50. Lampets case and therfore in pleading if the Defendant had said that a Dean and Chapiter were seised and made a Lease for 200. years this implies a Seisin in Fee because a man cannot have so long a life but here the Lease is but for 89. years and it is common to let for 89. years if A. shall so long live yet this is but a slip and the Title is apparant The same Term in the same Court. Hodges versus Moore IN Debt for marriage money the case was this A man was bound to Hedges to pay him a 1000 l. after that he had married his Daughter and afterwards he married her and brought Debt upon this Obligation and it was not averred that he had given notice to him of the marriage but demanded the money And this was moved by Noy in Arrest of Iudgment but quaere if request afterwards doth not implynetice And Doderidge Iustice put this case A man is bound to pay a 100 l. two Where notice is requisite before action and where not moneths after A. return from Rome he ought to give notice of his return before that he can have an action upon this Obligation for he may land at Newcastle or Plymoth where by common intendment the Obligor cannot know whether he be returned or not and this was agreed by the chief Iustice and Jones And Serjeant Davies argued for the Plaintiff that there need not precise notice to be given and he cited 1 H. 7. 18 E. 4. and Co. lib. 8. Where the Obligor shall take notice at his perill and so here because he takes upon him â—or to pay it And it was said that one Blackamores case was adjudged in the point and he conceived also that this request afterwards is a sufficient notice But Noy for the Defendant said that he ought to give notice or otherwise this mischief would ensue that if he had not married her and yet had demanded the money he ought to pay it and he said that where an act is to be done by a stranger the Plaintiff or Defendant ought to take notice therof at his perill as the case E. 4. where a man was bound to stand to the Award of I. C. he ought to take notice of the Award at his perill but where it lies properly in the Conusance and notice of the Plaintiff there he ought to give notice therof to the Defendant Co. lib. 5. Mallories case If a Reversion be bargained and sold to J. S. the Bargainee shall have the Rent without Attornment but if a penalty be to be forfeited he ought to give notice to the particular Tenant of the Grant or otherwise he shall not take advantage therof and he cited a case which was in 17 Eliz. Stephen Gurneys case Lessee for years the Reversion is granted over for years by way of future Interest to begin upon the death forfeiture or determination of the first Lease
Cleland brought a Writ of error against Baldock upon a Iudgement given in where the Plaintiff declared that the Intr. Hill 22. Iac Rot. 59â— Defendant in consideration that he would do all his commands honestly and truly for the space of a yeare assumed to pay him 10 l. and further declared that he had done all his honest and lawfull commands and this promise being found by verdict Iudgement was given against Doctor Cleland and thereupon he brought this Writ of error and Greene assigned two errors 1. The Assumpsit is that he shall doe all his commands honestly and truly and he hath declared that he hath done all his lawfull and honest commands and he may honest commands and yet not honestly 2. It is said that Jurator Assident dampna and it is not said occasione transgression predict and it is against all Presidents But Nota that there were these words ex hac parte opposita and therefore the exceptions were disallowed by the Court and the first Iudgement affirmed The same Term in the same Court. Secheverel versus Dale THis Case was sent out of Chancery to this Court â—o know the Law therein and in Trespas the case was this Henry Secheverell the Father seised in Fée levied a Fine to A. and B. in Fee to the use of himselfe for life absque impetitione vasti with power to cut and carry away the trees and to make Leases for 21 yeares or three lives the remainder to the use of John Secheverell his eldest Son for life without impeachment of waste with the same powers Henry the Father made a Lease to one under whom the Plaintiff claims for three lives rendring the ancient Rent excepting all the trees unlesse those which shall be for cropping lopping and fewell Henry the Father dyes John the Son in the next remainder cut certain trees Victorin Secheverell who clayms by the lease made by the Father brings trespas and two Questions were moved 1. Whether Lessee for life without impeachment of waste may make a Lease excepting the trees and it was objected by the Councel of the Plaintiff that he could not because this second Lease ariseth out of the first fine and out of the estate of the Conusor But the Court prima facie was of opinion that he might well make such a Lease with such an exception See Co. lib. 11. Lewys Bowls his Case and Doctor and Student lib. 1. cap. 1. and by Doderidge Iustice the Lease ariseth out of both the estates Jones Iustice suppose the Lessee absque impetitione vasti assigne over all his estate might he cut the trees and it was conceived that he might for by Doderidge he hath power to dispose of the trees as it was resolved in Lewys Bowls his case Jones he hath no propriety in the Trees untill they be cut Crew ch Justice Admit a Stranger cut the trees who shall have them By all the Court the Lessee without impeachment of waste shall have them 2. Point Tenant for life without impeachment of waste with power to cut and carry away the trees and make Leases for 21. years or three lives the remainder for life to J. S. without impeachment of waste c. Tenant for life makes a Lease for thrée lives and dyes whether he in remainder for life without impeachment of waste with power to cut the trées may cut the trées and take them during the Lease for thrée lives and the Court séemed to be of opinion that he might And Leving of Councell with the Plaintiff argued that when tenant for life without impeachment of waste with power to cut the trees and to make Leases for 21. years or three lives makes a Lease for thrée lives excepting the trées that this is a voyd exception because he hath no interest but a bare Authority 27. H. 6. Fitz. Wast 8. Statham tit Wast 1. makes this a Quaere which Statham was once the owner of the Land in question A man makes a Lease for life without impeachment of waste a Stranger cuts trées the Lessée brings trespas he shall recover no Damages for the value of the trees because the propriety belongs to him in the reversion he may dispose of them Quaere Dyer 284. Daunsley and Southwels Case Co. lib. 11. Lewys Bowles case that such a Lessee may take trées which are blown down and 3. H. 6. 45. Mich 41. and 42. Eliz. C. B. Leechford against Sanders in an Action of waste upon a Lease made to Sanders for life with a proviso that the Plaintiff might dispose of the trées during the estate and resolved that the Action lies not for notwithstanding this power the trées are demised to the Lessée also so here when the trées are excepted he hath no interest but only an authority 2. The exception is voyd for another reason because when such a Lessée makes such a Lease this is not his Lease but it hath its operation out of the originall fine and he who makes this hath but the nomination and therefore cannot adde a condition or exception to it And if the second Lease shall have its being out of the estate of the Lessee for life then there shall be an use upon an use as appears Co. lib. 1. 134. and that the Law will not allow 15. H. 7. and Co. Lib. 1. Albanyes Case If a man devise that his Executors shall fell his Land they cannot adde a condition or exception to this sale as an attornment upon a condition subsequent is voyd Co. lib. 2. Tookers case 3. This case may be resembled to the case of Copy-holds which is in Co. lib. 8. 63. b. in Swaynes Case If a Lord takes a Wife and afterwards grants Lands by Copy according to the custome and dyes his Wife shall not be endowed of this Land for albeit her title of Dower was before the Grant yet the title of Copi-hold which is the custome is elder then the title of Dower so in our case the title of the second Lessee is derived out of the estate of the Conuzées and therefore shall not be clogg'd with the Exceptions of Lessee for life without impeachment of waste 4. This priviledge to cut the trées is annexed to the estates and goes along with the estate and therefore shall not begin before the Stranger be in possession 3. E. 3. 44. 45. Idles case 28. H. 8. Dyer 10. And it may be resembled to the cases of 16. E. 4. and 27. H. 8. Tenant in taile sold the trées if he dyes before the Party takes them he shall never have them because he hath stayd out his time But it may be objected that upon such a Lease he may reserve a rent as it is in Whitlocks case Co. lib. 8. to which I will offer this difference Lessée for life with power to make Leases for thrée lives reserving rent makes a Lease for thrée lives reserving rent this reservation is good because it is but a Declaration of the Lease and of the rent
a Lease made de Burg. sine Tent. which is not good no more then in Ejectione firmae de Mess sive Tent. 2. Because the Judgement is not quod capitur as it ought to be because it is vi armis 3. The judgement is Ideo concessum est where it ought to be consideratus est and for these Errors the Judgement was reversed And the same day another Judgement between Bell and Margery Strongury was reversed for the same causes The same Term in the same Court. Petit versus Robinson IN Error to reverse a Iudgment given in C. B. in a Replevin there Jermy for the Plaintiff assigned two Errors 1. It appears that after the Writ and before the triall it was coram Justiciar Dic. Domini Regis and there was not any speech of any King but of King James before and there is no speech of his demise and therefore this shall be intended before the Iustices of King James which cannot be 2. Because the Nisi prius is certified to be tried before Francisco Harvey Mill. uno Justiciar c. the Postea returned is before Francisco Harvey Arm. argued so there was no such Iudge of Nisi prius as Francis Harvey Banks for the Defendant I conceive the first errors to be because the adjournment was per br Dom. Reg. and King James was named before so that the objection may be that it shall be intended the Writ of Adjournment of King James which cannot be but I conceive the Writ is generall and shall not be intended â—hat it can be adjourned by the Kings Writ who was dead before and the Clerk of the Assises who certified it is bound to take notice of the Kings death 37. H. 6. 28. and also the Record is not per br Dic. Dom. Regis but per br Domini Regis generally And for the second I conceive it is no error and if it be error then if the Certificate be not according to the Copy out of which the Clerke certifies it shall be amended 22. E. 4 22. 35. H. 6. 23. b. Co. lib. 8. 136. Blackmores case which is a stronger case then this But it hath been objected that the Record is certified by the Iustices and now there can be no averment to the contrary but I conceive that this Court may send to the Clark of the Assizes to amend it and those objections were over-ruled in C. B. in the same case Doderidge Iustice I conceive that notwithstanding these exceptions the Iudgement ought to be affirmed for as to the first the Court is bound to take notice of the demise of the King and therefore it shall be intended the King that now is and so the Writ of adâ—ournment good enough in Dyer King Henry 8. made a Patent and it was Eâ—ricus Dei gratia c. where it should be Henricus and yet the Patent good so in a Writ to the Bishop the subscription is Episcop Norw this is good enough for the Bishop of Norwich is very well known And for the other I conceive it is not well alledged because it is not showne whether he were a Knight at the time of the Certificate or not and so it may well stand together that he was a Knight for he might be an Esquire at the time of the triall and before the Record certified might be made Knight Jones Iustice to the same intent and that we ought to take notice of the demise of the King therefore it shall be intended of the Writ of adjournment of the King which now is and therefore it is no error and yet if it were it were amendable Whitlock Iustice agreed and therefore the Iudgement was affirmed by the whole Court The same Term in the same Court. Crabbe and his Wife versus Tooker IN Covenant betweene Walter Crabbe and Anne his Wife against Tooker the covenant upon which the breach was layd was this Tooker the Defendant covenanted with Tooker his Son and Anne Slade one of the Plaintiffs whom he intended to marry to give them their meat and drink in his house and if any discontent should happen between the Father and Son so that he and his Wife Anne should disagree to dwell with Tooker the Father then they should have 6. Beasts gates c. Tooker the Son died Anne disagree to dwell with Tooker the Father and marries with Crabbe who with hâ—s Wife Anne brings this Action and Taylor argued for the Planitiff that the Action lies for albeit the Covenant be in the conjunctive if they disagree yet it shall have a disjunctive interpretation as where a man covenant to levy a fine to one and his heirs if he dies the Covenantor may levy a fine to his Heirs and Hill and Granges case in Plow Two Tenants in common grant a rent this shall be taken for severall Rents and Co. lib. 5. Slingesbyes case also the Wife is party to this covenant and she must either have remedy upon this covenant after the death of her Husband or not at all for she cannot disagree in the life time of her Husband per que c. And it was agreed on the other side that there ought to be a dislike between all joyntly the Father the Son and the Wife and now one of them being dead the covenant is discharged like to the case put in Brudenels case Co. lib. 5. If Administration be grant during the minority of 3 if one of them dies the administration ceaseth and 31. Eliz. in C. B. A Lease was made to three and the Lessor grants to them to be dispunishable of Wast quamdiu cohabitarent one of them dies and it was resolved that now they shall be liable to wast Also the Bar is not bone for it is pleaded that Discordia orta fuit and doth not shew what manner of discord this was and therefore not good as 3 H 6. In Annuity brought Pro concilio c. he ought to shew for what manner of Councel it was Whitlock Justice was of opinion for the Plaintiff and that this Covenant extends to the Wife and that upon equall construction because it comes in place of the first Covenant and this was intended for the benefit of the Wife as well after the death of the Husband as before Jones Justice was of the contrary opinion and that the second covenant was a severall covenant from the first and that the disagreement is to be made by all three joyntly and that when one dies the Covenant is gone 2. Eliz. Dyer A man will that A. B. and C. his Feoffees shall sell his Land B. dies now the Authority is determined The Lord Gray committed the custody of his Son to four one of them dies the authority is gone and in this case there is no matter of interest but an agreement and in such a case as this is a Feme covert hath a will albeit she hath no legall will but in this case there ought to be a disagreement of both and
there ought to be a dislike of the Father also and in the Declaration it is also said that she dis-agreed Doderidge agreed with Jones that â—he Declaration is not good and that it is not warranted by the Covenant and that the breach is not well assigned The case is grounded upon the second covenant which consists upon a contingency which contingency is if there happen any discord between the Father and the Son c. the words are joynt and all ought to disagree True it is that in some cases a conjunctive shall be taken for a disjunctive but this is according to the matter and circumstances of the fact but in our case it shall not be taken disjunctively If the Father the Son and the Wife had disagreed then it is cleer that an Action of covenant lies but this is casus omissus and no provision for it Also it is only alledged in the Declaration that she disagreed whereas a mutuall disagreement between all ought to be alledged and therefore Judgement was given Quod quaerens mil. capiat per bellam But all agreed that the Wife might have boarded with Tooker the Father if she would but her new Husband could not AT thowe Sergeant took divers exceptions to an Inditement of forcible entry upon the Stat. of 8. H. 6. against Ployden and others for expelling one Syms from his Copi-hold and the principall exception was because disseisivit was not in the Inditement and in truth it cannot for albeit the Stat. of 21. Jac. cap. 15. gives power to Iudges and Iustices of Peace to give restitution of possession to Tenants for yeares and Copy-holders in which there shal be an entry or detainer by force yet the Stat. does not give an Inditement of forcible entry of copy-hold Noy a Copy-holder shal now have an Iditement of forcible entry but disseisivit shal not be in it for no Iury will find that because it is not possible because a Copy-holder hath no Frée-hold and yet a Copy-holder shall have a Plaint in nature of an Assize against a stranger but not against the Lord And at last the opinion of the Court was that the Inditement was good UPon a Capias directed to the Sheriff of London to take the body of J. S. the Capias was returnable die Jovis which was the day of All-souls and thereupon the Sheriff took the party but he returned that because the return of the Writ was upon a day that was not Dies Juridicus he suffered the party to go at large And the return was holden insufficient for by Doderidge the Writ was good and the taking and detaining of the party by vertue thereof was lawfull but yet he could not have the party there at the sayd day and therefore the Sheriff was compelled to bring the party into Court which the same day he did accordingly The same Term in the same Court A Man granted a Rent charge of 12 l. to one of his Sons out of the Mannor of D. by Déed and died the Grantée lost his Deed the Land is extended to I. D. by vertue of a Recognizance acknowledged by the eldest Son of the Grantor the Grantée sue for his Annuity before the Councell of York to be relieved in equity for that in respect of the losse of the Déed he could not have remedy at the common-Law and J. D. the Conuzée obtained a prohibition out of this Court upon this surmize that although the Councel of York should make a Decree that he should pay the said Annuity yet it should be no discharge for so much against the Conuzor because their Decrée was no legall eviction Now came Smith of the Temple and prayed a Precedendo for the Grantée to the Councel of York and the opinion of the whole Court was that a Decrée there being no legall eviction shall not be a discharge for so much against the Conuzor Doderidge the Grantée of the Rent-charge having now lost his Déed can have no remedy in equity for in this case Equitas sequitur legem and of the same opinion were Jones and Whitlock but by Doderidge which was not denied if the Grantee had lost the Deed by a casuall losse as by firâ— c. in such a case he shall have remedy in equity and he sayd that in the beginning of King James when Egerton was Lord Chancellor there was such a Case in Chancery A Grantee of a rent-seck had seisen of it so that he might have an assize and he devised it to J. S. the Devisée sued in Chancery to have his Rent and seizen of it and he could have no remedy for it in Chancery And this was one Malleryes case The same Term in the same Court ONe Hebborne was indited for stopping a way c. and it was mooved that the inditement was insufficient because it is not layd that it was communis via but only that it was a way to the Church and per Curiam it was good enough and by Jones Iustice the Inditement is good enough although there wants vi armis because he who is supposed to stop the way is owner of the Land The same Term in the same Court AN Action upon the Case upon a promise was brought in the Town of Northampton and the Consideration alledged was that if the Defendant here in the Writ of Errour would discharge Bagnot of Execution c. that then the Plaintiff here in this Writ of Errour promised to pay him eleven pounds and there the Defendant pleaded quod exoneravit illum de Executione relaxavit And Bolstred for the Plaintiffe moved this for Errours that the Plaintiffe in the inferiour Court did not shew by what manner of release it was nor that it was by writing for this being the Consideration upon which the Action is grounded ought to be put in certain Mich. 15. Iac. Staple and King Execution of a consideration ought to be shown 35 H. 6. 19. a discharge ought to be shown in certain 22 E. 4. 43. the Lord Lisles Case and Mich. 16. Iac. in this Court Liverel and Rivets Case which was entred Trin. 16. Iac. Rot. 32â— in an Action upon the Case upon a promise upon issue joyned it was found for the Plaintiffe and it was moved in arrest of Judgement because the Consideration was that the Plaintiffe should discharge one Ogle and he declares that he did discharge him and thereupon he brought this Action and because he declared but generally quod exoneravit the Judgement for that very cause was stayed and 36 Eliz. one covenanted to make an assurance and pleaded generally that he had assured and resolved that it was not good and in Rosse and Harvies Case this Term which was entred Trin. 2 Car. Rot. 1408. In Covenant the Defendant covenanted to give security the Defendant pleaded that he offered security and resolved that it was not good per que c. Jermy for the Defendant that the plea is good enough for a Release by Peroll is sufficient I
shall take effect by Livery where by Jurolist 49 Grants of the King  Where voyd 61 H HEire Where he shall be charged where not 152 153 I JMparlance  Not before a Declaration is entred 150 Imprisonment  Where justifiable 13 Indictments 107 134 210 taken before Coroners Where quashed 202 Upon the Statute of 8. H. 9. of forcible entry of copy-hold Lands 205 Inn-keepers 128 179 may detain a Horse untill he be satisfied for his meat 127 Inquisition  by the Coroner in case of death must bee Super visum corporis per sacramentum proborem legatum hominum where not hood 210 Indiciments  for stopping a Church-way where good 206 For being a Night-walker where good 208 If good in one part shall not be quashed  Joyâ—ture  where it may be waived 88 Joynt-tâ—nants â—6 Justâ—fication 13. 161 Justices of Peace of Gaol delivery and Nisiprius and their power 17 Judgmâ—nts 211. 212 by Nihil dicit 153 Where a Judgment reversed without Errour brought where noâ— 181 Entred in the Book as a Memorandum stayed by a subsequent order of Court 181 L. Lâ—ases 99. 106. 57 Void by Acceptance 9 Where in Reversion good 9 By Tenants for life or years to begin after his death 96 By a Copyholder upon a License 105 Where determined without entry 27. 53. 64. Lessce for life without impeachment â—f Wast may make a Lease excepting the Trees 193 What interest he hath in them ib. Leeâ— 141 Libels  Where a privaâ—e Letter is punishable aâ— a Libell 139 Legacies not payable but upon demand 104 Livery of Seâ—sin 103 Where words spâ—ken upon the 〈◊〉 do amount to a Livery 47 49 Liâ—â—se  〈◊〉 couâ—termandable 151 〈◊〉 a Copâ—holder to make Leaâ—es 150 〈◊〉  〈…〉 by Bargain and Sale by word 48 Lunatick  The Action must be brought in his name 141 M. MAgis dignum continet in se minus 35 Mayhem 115 Market Overt  Where the Sale shall be good where not 48 In a Scriviners Shop of Plate void 84 What kind of Sale alters the property 84 Monstrans of Deeds 113 Melius Inquirendum  Where it shall issue where not and what to be found upon it 54 55 Misnosme 151 In Grains 57 Of a Corporation 58 N. NOtice 37. 151. Of a condition of payment where to be given 12 Taken strongly against the Party 12 Of one Sheriff to another Sheriff of the persons in Execution 85. 86 Where requisite 136. 164 Nusance 166 Errecting a Dove-coat by a Freeholder no Nusance 141 O. OBligation 165. discharged by the act of God 98 not to be avoided by the act of the Obligor himself 40 To the use of a Feme Covert shall go to her Administrator not to the Husband 106 One forfeited revived and good 16 Office and Officers  Where an Office is void Ipso facto 28 Forfeited and by what act 117 Of his own wrong 149 Office Trove 25 26 Where Lands shall be in the King without Office 19 Relates 20 helps the King to the meane profits 30 Countervailes an Entry And where no entry is requisite in case of a common person There needs no Office found for the King 53 Where an Estate shall be devested out of the King without Office 63 Where not 64. without Returne or Monstrans de droit 64 Oyer  Where of a condition where not 202 P. PAtents 16 Where the Patentee shall take advantage of a condition to avoid a Lease 27 Void for the generality in the Grant 61 Void notwithstanding the words Ex certa sciaentia 61 Perjury where not punishable 144 Pleadings 28. 42. 101. 109. 152. 150. 160. 163. 206. Void because double Plea 113. 114 Nul tiel in rerum natura no Plea in appeal of Mayhem 115 Perpetuities 97. not tollerable 80 Plenarty by Induction of a Lay-man 37. Binds not the King 133 Proviso How to be construed 27 For a Limitation 53. 117. 118 119 Where repugnant and void 87 Possessio fratris 35 Principall Accessare 107 Prisoners Must be delivered over at the Gaol 85. 86 Presentation 132 Proofs What Proofs are to be allowed in the Ecclesiasticall Court 59 Priviledges  Grant by the Pope not allowable 157 Prescription 169 For Common for Vicinage good 101 Difference betwixt it and Custome and how to be taxed 201 â—roperty 38 What kind of Sale alters the property 84 â—rohibition 59. 126. 159. 197 For a Seat in the Church 140 Severall Prohibitions in one Cause 156 Prerogative 26 Q. QViâ— juris clamat 63 〈◊〉 warrantâ— 150. 180 Quare Impedit by an Executor for a disturbance in vite Testator 189. 190 191 R. RAvishment of Ward by an Executor 190. 191 Recovery 6. 5 Releaâ—es 28. 132 Exâ—cuted where avoided by Proviso 16 Of all demands will dischaâ—ge a rest in â—uturo 136 Relation 12 Of a Baâ—l 132 Of Entry of Judgement 132 Return of the Sheriff of a Capias upon a day not Dies faci good 205 Request 160. 211. 212 Upon payment upon a Contract is not necessary 211. 212 Remainder 97 in Fee not good upon a Lease for years 4. 82 Must take effect when the particular Estate determines for life wiâ—hout impeachment of Wast whether he may cut Trees duâ—ing the life of Tenant for life 196. 74 Rents  Rent and Pension all one in a Demand in a â—ecovery 23 Where the Executor shall have the rent upon a Lease of the Wâ—ves land 145 Restitution  Of an Alderman to his place 134 Of one put out of his Office 176 Reservatâ—on 145 195. how construed 17 Revivor 167 S. SAvingâ— in an Act of Paâ—liament how construed 17 Scire 〈◊〉  Lâ—es â—â—t against the Bail till a Capiaâ— be awarded of the Principall 186 Seals 161 Scandalum Magnatum 66 Sheriffs Oâ—e Sheriff must deliver over the Prisoners to the other by Indeâ—ture 85. 86 Surplusage  shall not abate a Writ 24 Surrender 9. 31. 84. 110. 125 129 Of the Husband of the land of the Wife no discontinuance 38 39 Of an Infant Copyholder void 39 Of an Alderman of his place 134 Of Tenant for life in remainder good without Deed 137 138 T. TAles  where awarded of Aliens 36 Tender  where not good to avoid a condition 20 Title  where must be made 1 2 Trusts not abridged 8 Their difference from Uses 77 Traverse 1. 101. 103. not necessary where there are two Affirmatives but where they do not agree 67 Traverse upon a Traverse 101 Circumstances not traversable 161 Treason 122 Triall  Of the same person upon another Indictment after Attainder upon a former Indictment 107 Transporting Corn 149 Trespasse 161 Where Vi armis e contr 192 Tithes 140 Where discharged by Prescription or Priviledge 156 De animalibus inutilibus animalibus utrilibus and the difference 197 Of Sheep and their pasturing wool c. 157 V. VErdict 19 void 202 Found for thâ— Deâ—endants because no 〈…〉 â—â—tred for one of them 145 Volenti non fit injuria 9 Use and Uses  What a Use is 71 How to be construed 3 Not to be abridged 8 Void upâ—n a tender 18 Raised by word upon a good consideration where good where not 47 49 Raiâ—ed upon Contracts 48 Considerations to raise Uses 48 49 A bare Covenant writing without consideration will not raise an Use 50 What persons cannot stand seised to Uses 72 Uses contingent not executed by the Statute of 27. H. 8. 72 Uâ—es contingent destroyed by a Feoffment 72 Uses grounded upon fraud 77 Use cannot râ—â—e out of a Uâ—e 81 Uses in contingency barred by a Release of the Feoffees 83 Use upon a Bargain and Sale for years passeth without inrolement of the Deed 38 Use amerced upon a Fine upon render without a Deed 105 W. WAger of Law 127 Words  Where the King shall have a third part of the Land of the Ward and of other land setled upon a marriage 54 Wast 24. 25 47 Damages in Wast 24 Warrants  When a Warrant is returned upon Record in case of the King it is as strong as an Office found 20. 28 29 Warranty  doth bind an Infant if his Entry is not lawfull 71 cannot enlarge an Estate 138 Wills 152 Words which make a condition in Wills 8 Writ  of enquiry of damages 24 Where not abated 24 Originall shall be taken as they are written 101 FINIS