the Wife does but nominate what person shall take by the Will This is a plain case and free from uncertainty and ambiguity which else the word dispose will be liable to But Iudgment was given ut supra Howell versus King TRespass for driving Cattel over the Plaintiffs ground The case was A. has a way over B's ground to Black-Acre and drives his Beasts over A's ground to Black-acre and then to another place lying beyond Black-acre And whether this was lawful or no was the question upon a demurrer It was urged that when his Beasts were at Black-acre he might drive them whither he would Rolls 391. nu 40. 11 H. 4. 82. Brook tit chimin On the other side it was said that by this means the Defendant might purchase a hundred or a thousand Acres adjoyning to Black-acre to which he prescribes to have a way by which means the Plaintiff would lose the benefit of his Land and that a Prescription presupposed a grant and ought to be continued according to the intent of its original Creation The whole Court agreed to this And Iudgment was given for the Plaintiff Warren qui tam c. versus Sayre THe Court agreed in this case that an Information for not coming to Church may be brought upon the Stat. of 23 Eliz. only reciting the clause in it that has reference to Stat. 1. of the Queen and that this is the best and surest way of declaring Term. Hill 26 27 Car. II. in Com. Banco Williamson Hancock Hill 24 25 Car. 2. Rot. 679. TEnant for life the Remainder in Tail Tenant for life levies a Fine to J. S. and his heirs to the use of himself for years and after to the use of Hannah and Susan Prinne and their heirs if such a sum of money were unpaid by the Conusor and if the money were paid then to the use of the Conisor and his heirs And this Fine was with general warranty The Tenant for life died the money unpaid and the warranty descended upon the Remainder-man in Tail And the question was whether the Remainder-man were bound by this warranty or not Serjeant Maynard argued that because the Estate of the Land is transferred in the Post before the warranty attaches in the Remainder-man that therefore it should be no Bar. He agréed that a man that comes in by the limitation of an use shall be an Assignee within the Statute of 32 H. 8. cap. 34. by an equitable construction of the Statute because he comes in by the limitation of the party and not purely by Act in Law but this case of ours is upon a collateral garranty which is a positive Law and a thing so remote from solid reason and equity that it is not to be stretch'd beyond the maxime That the Cestuy que use in this case shall not vouch is confessed on all hands and there is the same reason why he should not rebutt He said the resolution mentioned in Lincoln Colledge case was not in the case nor could be the warranty there was a particular warranty contra tunc Abbatem Westmonasteriensem successores suos which Abby was dissolved long before that case came in question He said Justice Jones upon the arguing of Spirt Bence's case reported in Cr. Car. said that he had been present at the Iudgment in Lincoln Colledge case and that there was no such resolution as is there reported Serjeant Baldwin argued on the other side that at the Common Law many persons might rebutt that could not take advantage of a warranty by way of Voucher as the Lord by Escheat the Lord of a Villain a Stranger a Tenant in possession 35 Ass placito 9. 11 Ass placito 3. 45 Ed. 3. 18. placito 11. 42 Ed. 3. 19. b. a fortiori he said he that is in by the limitation of an use being in by the act of the party though the Law co-operate with it to perfect the assurance shall rebutt The Court was of Opinion that the Cestuy que use might rebutt that though Voucher lies in privity an abater or intruder might rebutt F. N. B. 135. 1 Inst 385. As to Serjeant Maynard's Objection that he is in the Post they said they had adjudged lately in Fowle Doble's case that a Cestuy que use might rebutt So it was held in Spirt Bence's case Cr. Car. and in Jones 199. Kendal Foxe's case That Report in Lincoln Colledge case whether there were any resolution in the case or no is founded upon so good reason that Conveyances since have gone according to it Atkyns said there was a difficult clause in the Statute of Uses viz. That all and singular person and persons c. which at any time on this side the first day of May c. 1536. c. shall have c. By this clause they that came in by the limitation of an use before that day were to have the like advantages by Voucher or Rebutter as if they had béen within the degrees If the Parliament thought it reasonable why was it limited to that time Certainly the makers of that Law intended to destroy Vses utterly and that there should not be for the future any Conveyances to Vses But they supposed that it would be some small time before all people would take notice of the Statute and make their Conveyances accordingly and that might be the reason of this clause But since contrary to their expectations Vses are continued he could easily be satisfied he said that Cestuy que use should rebutt Wyndham was of Opinion that Cestuy que use might vouch he said there was no Authority against it but only Opinions obiter They all agreed for the Defendant and Iudgment was given accordingly Rogers versus Davenant Parson of White-Chappel NOrth Chief Justice The Spiritual Court may compell Parishioners to repair their Parish-Church if it be out of Repair and may Excommunicate every one of them till it be repaired and those that are willing to contribute must be absolved till the greater part of them agrée to assess a Tax but the Court cannot assess them towards it it is like to a Bridge or a High-way a Distringas shall issue against the Inhabitants to make them Repair it but neither the Kings Court nor the Iustices of Peace can impose a Tax for it Wyndham Atkyns Ellis accorded The Church-Wardens cannot none but a Parliament can impose a Tax but the greater part of the Parish can make a By-Law and to this purpose they are a Corporation But if a Tax be illegally imposed as by a Commission from the Bishop to the Parson and some of the Parishioners to assess a Tax yet if it be assented to and confirmed by the major part of the Parishioners they in the Spiritual Court may proceed to Excommunicate those that refuse to pay it Compton Vx. versus Ireland Mich. 26 Car. 2. Rot. 691. SCire facias by the Plaintiffs as Executors to have Execution of a Iudgment
construed to be a gift of the Stuff unto her and I shall not be charged in any Action for it besides consider the inconveniencies which will follow if an Action of Trover should be against the husband for then the husband shall be barred of all those helps which my Brothers who maintain that Opinion have allowed unto him and have made reasons for which an Action of the case should lye against him on the Contract namely the Iurors are to examine and set the price or value and the necessity and fitness of things with relation to the degree of the husband whereby care is taken that the husband have no wrong for in an Action of Trover the Iury cannot examine any of those matters but are to enquire only of the property of the Plaintiff and the Conversion by the Defendant and to give damages according to the value of the Goods and so it shall be in the power of the wife to take up what she pleaseth and to have what she lists without reference unto the degrée or respect to the Estate of her husband and he shall be charged with it nolens volens It is objected that the Iury is to judge what is fit for the Wives degrée that they are trusted with the reasonableness of the price and are to examine the value and also the necessity of the things or Apparel Alas poor man what a Iudicature is set up here to decide the private differences between husband and wife the Wife will have a Velvet Gown and a Satten Petticoat the husband thinks Mohair or Farendon for a Gown and watered Tabby for a Petticoat is as fashionable and fitter for his quality The husband says that a plain Lawn Gorget of 10 s. pleaseth him and suits best with his condition the Wife will have a Flanders Lace or pointed Handkerchief of 40 l. and takes it up at the Exchange A Iury of Mercers Silk-men Sempsters and Exchange-men are very excellent and very indifferent Iudges to decide this controversie It is not for their avail and support to be against the wife that they may put off their brayded Wares to the wife upon trust at their own price and then sue the husband for the money Are not a Iury of Drapers and Milliners bound to favour the Mercer or Exchange-men to day that they may do the like for them to morrow And besides what matter of Fact and of that only the Law hath made Iurors the Iudges is there in the fitness of the Commodities with reference to the degree of the husband and whether this or that thing be the most necessary for the wife The matter of Fact is to find that the wife wanted necessary Apparel and that she bought such and such Wares of the Plaintiff at such a price to cloath her self and leaves the fitness of the one and the reasonableness of the other to the Court for that is matter of Law whereof the Iurors have no Conusance Lessée for life of a House puts his Goods therein makes his Executors and dies whosoever hath the House after his death yet his Executors shall have frée Entry Egress and Regress to carry their Testators Goods out of the House by reasonable time Litt. 69. And this reasonable time shall be adjudged by the discretion of the Iustices before whom the cause depends upon the true state of the matter and not by the Iury Co. super Littleton 56. b. So it is in case of Fines for Admittance Customs and Services if the Question be whether the same be reasonable or not for reasonableness belongs to the knowledge of Law 4 Rep. 27. Hubarts case Lessée for life makes a Lease for years and dies within the term in an Action of Trespass brought by the first Lessor against the Lesseé for years he ought by his Plea to set forth what day his Lessor dyed and at what place where the Land lies and at what day he did leave the possession and so leave it to the discretion of the Court whether he did quit the possession in reasonable time or not 22 E. 4. 18. Soinors case The fitness or necessary of Apparel and the reasonableness of the price shall be judged by the Court upon the circumstance of the matter as the same appears by the Pleadings or is found by the Iury but the Iurors are not Iudges thereof Again there is a twofold necessity necessitas simplex vel absoluta and necessitas qualificata vel convenientiae of a simple or absolute necessity in the case of Apparel or Food for a Feme Covert the Law of the Land takes notice and provides remedy for the wife if the husband refuse or neglect to do it But if it be only necessitas convenientiae whether this or that Apparel this or that meat or drink be most necessary or convenient for any wife the Law makes no person Iudge thereof but the husband himself and in those cases no man is to put his hand betwéen the bone and the flesh I will conclude the general question or first point with the Iudgment of Sr. Thomas Smith in his book of the Common-wealth of England lib. 1. cap. 11. fo 23. The naturallest and first conjunction of two towards the making a further Society of continuance is of the husband and wife each having care of the Family the man to get to travel abroad to defend the wife to save to stay at home and distribute that which is gotten for the nurture of the Children and Family is the first and most natural but primate apparence of one of the best kind of Common-wealths where not one always but sometime and in some things another bears rule which to maintain God hath given to the man greater wit better strength better courage to compell the woman to obey by reason or force and to the woman beauty fair Countenance and sweet words to make the man obey her again for love Thus each obeyeth and commandeth the other and they two together rule the House so long as they remain together in one I wish with all my heart that the women of this age would learn thus to obey and thus to command their husbands so will they want for nothing that is fit and these kind of Flesh-flies shall not suck up or devour their Husbands Estates by illegal tricks I am come now to this particular case as it stands before us on this Record Admit that the husband were chargeable by Law by the Contract of his wife yet Iudgment ought to be given against the Plaintiff upon this Declaration as this Verdict is found First the Declaration is That the Defendant was indebted to the Plaintiff in 90 l. for Wares and Merchandizes by the Plaintiff to him before that time sold and delivered and the Verdict finds that the Wares were not sold and delivered to the Defendant but the same were sold to his wife without his privity or consent So it appears that the Plaintiff hath mistaken his Action upon
from the 20th of November for five years And the question upon a special Verdict was whether this were a good or a void Lease Serjeant Jones There are many cases in which the Law rejects the limitation of the commencement of a Lease if it be impossible as from the 31st of September or the like now this being altogether uncertain and since there is nothing to determine your Iudgments what November he meant whether last-past or next-ensuing it amounts to an impossible limitation Rolls tit Estate placito 7. 849. ibid. placito 10. betwixt Elmes Leaves Baldwin contra The Law will reject an impossible limitation but not an uncertain limitation Vaughan Atkyns The Law rejects an impossible limitation because it cannot be any part of the parties agreement but an uncertain limitation vitiates the Lease because it was part of the agreement but we cannot determine it not knowing how the Contract was There are many examples of Leases being void for uncertainty of commencements which could not have béen adjudged void if the limitation in this case were good Wyndham Ellis contra And that it should begin from the time of the delivery It was moved afterward and Ellis being absent it was ruled by Vaughan Atkyns against Wyndham's Opinion and Iudgment was arrested Fowle Doble's Case FOrmedon in the Remainder The case was thus There were three Sisters the eldest was Tenant in Tail of a fourth part of 140 Acres c. in thrée Villes A. B. C. the Remainder in Fee-simple to the other two the Tenant in Tail takes Husband Dr. Doble the Defendant The Husband and Wife levy a Fine sur conisance de droit to the use of them two and the heirs of the body of the Wife the Remainder in Fee to the right Heirs of the Husband and this Fine was with warranty against them and the heits of the wife The wife dies without issue living the Husband against whom Lucy and Ruth the other two Sisters to whom the Remainder in Feé was limited bring a Formedon in the Remainder The Defendant as to part of the Lands in demand viz. 100 Acres pleaded Non-tenure and that such a one was Tenant To that plea the Plaintiff demurred As to the rest of the Lands he pleaded this Fine with warranty The Plaintiffs made a frivolous replication to which the Defendants demurred The Plaintiffs Councel excepted to the Defendants plea of Non-tenure 1. That he does not express in which of the Villes the 100 Acres lie 5 Ed. 3. 140. in the old Print 184. 33 H. 6. 51. Sir John Stanley's case But this was over-ruled for the Formedon being of so many several Acres he is not obliged to shew where those lie that he pleads Non-tenure of he tells the Plaintiff who is the Tenant which is enough for him 2. Because he that pleads Non-tenure in abatement ought to set forth who was Tenant die impetrationis brevis orig c. But this was over-ruled also for he says that himself was not Tenant die impetrationis brevis origin but that such another eodem die was Tenant which is certain enough When the Tenant pleads Non-tenure to the whole he needs not set forth who is Tenant otherwise when he pleads Non-tenure of part 11 H. 4. 15. 33 H. 6. 51. At the Common Law if the Tenant had pleaded Non-tenure as to part it would have abated all the Writ 36 H. 6. 6. but by the Statute of the 25 Ed. 3. cap. 16. it was enacted that by the exception of Non-tenure of parcel no Writ should be abated but only for that parcel whereof the Non-tenure was alledged A third exception was taken to the pleading of the Fine viz. because he pleaded a Fine levied of a fourth part without saying in how many parts to be divided This was also over-ruled and 1 Leon. 114. was cited where a difference is taken betwixt a Writ and a Fine and in a Fine it is said to be good that being but a common assurance aliter in a Writ 19 Ed. 3. Fitz. br̄e 244. This exception seems level'd against the Plaintiffs own Writ in which he demands a fourth part without saying in how many parts to be divided The matter in Law was whether or no this warranty being against the husband and wife and the heirs of the wife were a bar to the Plaintiffs or survived to the Husband and it was resolved to be a bar for this warranty as to the Husband was destroyed as soon as it was created the same breath that created it put an end to it for the Husband warranted during his life only and took back as large an Estate as he warranted which destroys his warranty and this is Littleton's Text if a man make a feoffment in Feé with warranty and take back an Estate in Fee the warranty is gone But the destruction of the husbands warranty does not affect the wives 20 H. 7. 1. and Sym's case upon which Ellis said he much relyed Herberts case 3 Rep. can give no rule here for that here the husband is seiz'd only in right of the wife Vaughan said That if the Fine in this case had beén levied to a stranger for life or in Fée who had béen impleaded by another stranger that in that case the Tenant ought to have vouched the surviving husband as well as the heir of the wife or else he would have lost his warranty 2. He said if the Fine had been levied to the use of a stranger who had been impleaded by the heirs of the wife he questioned whether or no the Tenant could have rebutted them for any more then a moity and he questioned the resolution of Sym's case 8 Rep. there is a Case cited in Symme's case out of the 45 Edw. 3. 23. which is expresly against the resolution of the case it is said in the Reports that no Iudgment was given in that case which is false and that the case is not well abridged by Brook which is also false If in case of a voucher a man loseth his warranty that does not vouch all that are bound why should not one that 's rebutted have the like advantage There is a resolution quoted in Sym's case out of 5 Edw. 2. Fitz. tit garranty 78 upon which the Iudgment is said to be founded being as is there said a case in point but he conceived not for Harvey that gave the rule said le tenant poit barrer vous touts ergo un sole in the case there were several co-heirs and if all were demandants all might have been barred and if one be demandant there 's no question but she may be rebutted for her part But Sym's case is quite otherwise for there one person is co-heir to the garranty that is not heir to any part of the Land In 6 Ed. 3. 50. there is a case resolved upon the ground and reason of the 45 Ed. 3. for these reasons he said he could not rely upon Sym's case He agreed
to chuse every year two Surveyors to take care that no unwholsome Victuals were sold within the Precinct of that Mannor and that they were sworn to execute their Office truly for the space of a year and that they had power to destroy whatever corrupt Victuals they found exposed to sale and that the Defendants being chosen Surveyors and sworn to execute the Office truly examining the Plaintiffs meat who was also a Butcher found a side of Beef corrupt and unwholsome and that therefore they took it away and burnt it prout eis bene licuit c. The Plaintiff demurs North. This is a case of great consequence and seems doubtful It were hard to disallow the Custom because the design of it seems to be for the preservation of mens health And to allow it were to give men too great a power of seizing and destroying other men's Goods There is an Ale-taster appointed at Leets but all his Office is to make Presentment at the Leet if he finds it not according to the Assize Wyndham Atkyns Ellis It is a good reasonable Custom It is to prevent evil and Laws for prevention are better then Laws for punishment As for the great power that it seems to allow to these Surveyors it is at their own peril if they destroy any Victuals that are not really corrupt for in an Action if they justifie by virtue of the Custom the Plaintiff may take issue that the Victuals were not corrupt But here the Plaintiff has confessed it by the demurrer Atkyns said if the Surveyors were not responsible the Homage that put them in must answer for them according to the rule of respondeat superior Iudgment was given for the Plaintiff unless c. Thredneedle Lynham's Case UPon a special Verdict the case was thus The Iury found that the Lands in the Declaration are and time out of mind had been parcel of the demesnes of the Mannor of Burniel in the County of Cornwall which Mannor consists of demesnes viz. Copy-hold tenements demisable for one two or three lives and services of divers Free-hold Tenants that within the Mannor of Burniel there is another Mannor called Trecaer consisting likewise of Copy-holds and Free-holds and that the Bishop of Exeter held both these Mannors in the right of his Bishoprick Then they find the Statute of 1. Eliz. in haec verba They find that the old accustomed yearly Rent which used to be reserved upon a demise of these two Mannors was 67 pounds 1 s. and 5 d. then they find that Joseph Hall Bishop of Exeter demised these two Mannors to one Prowse for 99 years determinable upon three lives reserving the old and accustomed Rent of 67 l. 1 s. and 5 d. that Prowse living the Cestuy que vies assigned over to James Prowse the demesnes of the Mannor of Trecaer for that afterwards he assigned over all his Interest in both Mannors to Mr. Nosworthy excepting the demesnes of Treacer then in the possession of James Prowse That Mr. Nosworthy when two of the lives were expired for a sum of money by him paid to the Bishop of Exeter surrendred into his hands both the said Mannors excepting what was in the possession of James Prowse and that the Bishop Joseph Hall's Successor redemised unto him the said Mannors excepting the demesnes of Trecaer and excepting one Messuage in the occupation of Robert and excepting one Farm parcel of the Mannor of Burniel for three lives reserving 67 l. 1 s. 5 d. with a nomine poenae and whether this second Lease was a good Lease and the 67 l. 1 s. 5 d. the old and accustomed Rent within the intention of the Statute of 1 Eliz. was the question After several arguments at the Bar it was argued at the Bench in Michaelmas Term Ann. 26 Car. 2. And the Court was divided viz. Vaughan Ellis against the Lease Atkyns Wyndham for it This Term North Chief Justice delivered his Opinion in which he agreed with Atkyns Wyndham so that Iudgment was given in maintenance of the Lease and the Iudgment was affirmed in the Kings Bench upon a Writ of Error The Chapter of the Collegiate Church of Southwell versus the Bishop of Lincoln and J. S. Incumbent c. IN a Qua. imp the Incumbents Title was under a grant made by the Plaintiffs who were seized of the Advowson ut de uno grosso in the right of their Church of the next avoidance one Esco being then Incumbent of their Presentation to Edward King from whom by mean assignments it came to Elizabeth Bley who after the death of Esco presented the Defendant Vpon a demurrer these points came in question 1. Whether the grantors were within the Statute of the 13 Eliz. or not 2. Whether a grant of a next avoidance be restrained by the Statute 3. If the grant be void whether it be void ab initio or when it becomes so And 4. Whether the Statute of 13 Eliz. shall be taken to be a general Law for it is not pleaded Serjeant Jones For the first point argued that the Grantors are within the Statute the words are Deans Chapters which he said might well be taken severally for of this Chapter there is no Dean If they were to be taken joyntly then a Dean were not within this Law in respect of those possessions which he holds in the right of his Deanry but the subsequent general words do certainly include them and would extend even to Bishops but that they are superiour to all that are expressed by name For the second he said the Statute restrains all gifts grants c. other then such upon which the old Rent c. He cited Cr. Eliz. 440. 5. Co. the case of Ecclesiastical persons 10 Co. the Earl of Salisbury's case For the third point he held it void ab initio it must be so or good for ever For here is no Dean after whose death it may become void as in Hunt Singleton's case the Chapter in our case never dies For the fourth point he argued that it is a general Law because it concerns all the Clergy Holland's case 4 Rep. Dumpor's case ibid. 120. b. Willmote contra North Chief Justice Atkyns Wyndham Ellis Iustices all agreed upon the three first points as Serjeant Jones had argued Atkyns doubted whether the 13 of Eliz. were a general Law or not but was over-ruled They all agreed that the Action should have been brought against the Patron as well as against the Ordinary and the Incumbent but that being only a plea in abatement that the Defendant has waived the benefit thereof by pleading in Bar. And Iudgment was given for the Plaintiff Nisi causa c. Hunt Singleton's case being mentioned Atkyns said he thought it a hard case considering that the Dean and the Chapter were all persons capable that a grant should hold in force as long as the Dean lived and determine then He thought they being a Corporation aggregate of
300 l. is as a penalty imposed upon him if he refuse to make such a Grant And if he shall not c. instead of the word not put the words refuse to c. and the case will be out of doubt Besides the annuity to be granted is but 20 l. per annum for a life and 300 l. in money is more then the value of it so that it cannot be intended a sum to be paid in lieu or recompence of it but must be taken for a penalty But suppose it to be a dis-junctive Condition then we ought to have an Election whether we would do but as this case is the Plaintiff by his negligence has deprived us of our Election For Authorities he cited Gerningham Ewer's case Cr. Eliz. 396. 539. 4 H. 7. fol. 4. 5 Co. 21. b. Laughter's case Warner Whyte's case resolved the day before in the Kings Bench. There is a rule laid down in Morecomb's case in Moors Reports 645. which makes against me but the resolution of that case is Law and there needed no such rule That case goes upon the reason of Lambs case 5 Rep. when a man is obliged to pay such a sum as J. S. shall assess J. S. being a meer stranger the Obligor takes upon him that J. S. shall assess a sum in certain and he must procure him to do it or he forfeits his Obligation But in our case nothing is to be done but by the Obligee himself Pemberton contra He argued that the Obligors Election is not taken away for though no Deed were tendred him he might have got one made and the tender of that would have discharged the Condition of his Bond. Indeed this will put him to charge but he may have an Action of Debt for what he lays out He cited the cases cited by Walmesley in Moor 645. betwixt Milles Wood 41 Eliz. Gowers case 38 39 Eliz. c. North. The case of Warner White adjudged yesterday in the Court of Kings Bench is according to Law the condition there was that J. S. should pay such a sum upon the 25th of December or should appear in Hillary Term after in the Court of Kings Bench. J. S. died after the 25th day of Dec ' and before Hill Term and had paid nothing upon the 25th of December In that case the Condition was not broken by the non-payment and the other part is become impossible by the act of God But I think that if the first part of a Condition be rendred impossible by the act of God that the Obligor is bound to perform the other part But in the case at the bar the Obligors Election is taken away by the act of the Obligee himself And I see no difference betwixt this case and that of Gerningham Ewer in Cr. Eliz. if the Condition of an Obligation be single to make such assurance as shall be advised by the Council of the Obligee there concilium non dedit advisamentum is a good plea and the Obligor is not bound to make an assurance of his own head no more shall he be bound to do it when the Condition is in the dis-junctive to save his Bond. In both cases the Condition refers to the manner of the assurance and it must be made in such manner as the words of the Condition import So he said he was of Opinion against the Plaintiff Wyndham Where the Condition of an Obligation is in the disjunctive the Obligor must have his Election But in this case there is no such thing as a disjunctive till such time as there be a request made to seal a Deed of Annuity and then the Obligor will have an Election either to execute the assurance or to pay the 300 l. but no such request being made it should seem that the Obligor must pay the 300 l. at his peril Atkyns agreed with the Chief Iustice and so did Scroggs wherefore Iudgment was ordered to be entred against the Plaintiff Nisi causa c. within a week Quare impedit The Plaintiff declared upon a grant of the Advowson to his Ancestor and in his Declaration says hic in Cur̄ prolat ' but indéed had not the Deed to shew Serjeant Baldwin brought an Affidavit into Court that the Defendant had gotten the Deéd into his hands and prayed that the Plaintiff may take advantage of a Copy thereof which appear'd in an Inquisition found temp Edw. 6. Cur̄ When an Action of Debt is brought upon a Bond to perform Covenants in a Deed and the Defendant cannot plead Covenants perform'd without the Deed because the Plaintiff has the original deed and perhaps the Defendant took not a Counterpart of it we use to grant imparlances till the Plaintiff bring in the deed And upon Evidence if it be proved that the other party has the deed we admit Copies to be given in Evidence But here the Law requires that the deed be produced you have your remedy for the deed at Law We cannot alter the Law nor ought to grant an emparlance Stead Perryer EJectione firmae A man has a Son called Robert Robert has likewise a Son called Robert The Grandfather deviseth the Land in question to his Son Robert and his heirs Robert the deviseé dies in the devisors life time Afterwards the devisor makes a new publication of the same Will and declares it to be his intention that Robert the Grand-child should take the Land in question per eandem voluntatem instead of his Father and dyed And all this was found by special Verdict upon a Trial betwixt Robert the Grand-child and a Daughter of the elder Brother of Robert the first devisee Pemberton The Land does not pass by this Will the devise to Robert became void by his death and cannot be made good by a republication A publication cannot alter the words of a Will so as to put a new sense upon them Land must pass by Will in writing Robert the Grand-son is not within this Will in writing The Grandfathers intention is not considerable in the case Skipwith contra I agree the case between Brett Rygden in the Commentaries to be Law but there are two great diversities between this case and that 1. There was no new publication 2. In this case Robert the Father and Robert the Son are cognominous He cited Dyer 142 143. Trevilians case Fuller Fuller Cr. Eliz. 422. Moor 353. Cr Eliz. 493. North Atkyns Without question Robert the Grand-child shall take by this Will If he never had had a Son called Robert or if Robert the Son had been dead at the time of making the Will the Grand-child would then without dispute have taken by these words Now a new publication is equivolent to a new writing The Grand-child is not directly within the words of the Will but they are applicable to him He is a Son though he be not begotten by the body of the devisor himself He is a Son with
that he had cured her the consideration of the first promise being future and both promises found and entire damages given Twisd It is well enough for now it lies upon the whole Record whether he hath cured her or no if it had rested upon the first promise it had been nought And in the second promise there is an averment that he had cured her So that now after a Verdict it is help'd and the want of an averment is holpen by a Verdict in many cases Iudgement nisi c. Twisd If a man be in prison and the Marshal dye and the Prisoner escape there is no remedy but to take him again Twisd Pleas in abatement come too late after imparlance Hall Sebright AN Action of Trespass wherein the Plaintiff declared That the Defendant on the 24th of January did enter and take possession of his house and did keep him out of possession to the day of the exhibiting the Bill The Defendant pleads that ante praedict tempus quo sc c. the Plaintiff did licence the Defendant to enjoy the house until such a day Saunders The plea is naught in substance for a licence to enjoy from such a time to such a time is a Lease and ought to be pleaded as a Lease and not as a Licence it is a certain present Interest Twisd It is true 5 H. 7. fo 1. is That if one doth licence another to enjoy his house till such a time it is a Lease but whether it may not be pleaded as a Licence I have known it doubted Judgment nisi c. Coppin versus Hernall TWisden said upon a motion in arrest of Iudgment because an Award was not good that the Vmpirage could not be made till the Arbitrators time were out And if any such power be given to the Vmpire it s naught in its constitution for two persons cannot have a several Iurisdiction at one and the same time The Law allows the Defendant a Copy of the Pannel to provide himself for his challenges Fetyplace versus ACtion upon the Case upon a promise in consideration that the Plaintiff would affeerere instead of afferre c. it was moved in arrest of Iudgment Cr. 3 part 466. was cited Bedel Wingfield Twisd I remember districtionem for destructionem cannot be help'd so neither vaccaria instead of vicaria So the Court gave directions to see if it were right upon the Roll. Holloway THe Condition of a Bond for performance of Covenants in an Indenture doth estop to say there is no such Indenture but doth not estop to say there are no Covenants Keel The course of the Court is that if a man be brought in upon a Latitat for 20 l. or 30 l. we take the bail for no more but yet he stands bail for all Actions at the same parties suit otherwise if a stranger bring an Action against him Twisd They cannot declare till he hath put in Bail and when we take bail it is but for the sum in the Latitat perhaps 30 l. or 40 l. but when he is once in he may be declared against for 200 l. Smith versus Wheeler A Writ of Error was brought to reverse a Iudgment given in the Common Pleas upon a special Verdict in an Ejectione firmae The Iury found that one Simon Mayne was possest of a Rectory for a long term and having conveyed the whole term in part of it to certain persons absolutely he conveyed his term in the residue being two parts in this manner sc in trust for himself during life and afterwards in trust for the payment of the Rent reserved upon the original Lease and for several of his Friends c. Provided that if he should have any issue of his body at the time of his death then the trusts to cease and the Assignment to be in trust for such issue c. and there was another Proviso that if he were minded to change the uses or otherwise to dispose of the premisses that he should have power so to do by writing in the presence of two or more Witnesses or by his last Will and Testament They further find that he had Issue male at the time of his death but made no disposition pursuant to his power and that in his life time he had committed Treason and they find the Act of his Attainder The question was whether the rest of the term that remained unexpired at the time of his death were forfeited to the King The points made were two 1. Whether the Deed were fraudulent 2. Whether the whole term were not forfeited by reason of the trust or the power of revocation Pemberton argued that the Deed was fraudulent because he took the profits during his life and the Assignees knew not of the Deed of trust The Court hath in these cases adjudged fraud upon circumstances appearing upon Record without any Verdict the case that comes nearest to this is in Lane 42. c. The King against the Earl of Nottingham and others 2dly He argued that there was a Trust by express words and if there be a Trust then not only the Trust but the Estate is vested in the King by the express words of the Stat. of 33 Hen. 8. The King indeed can have no larger Estate in the Land then the person attainted had in the Trust and if this Conveyance were in Trust for Simon Mayne only during his life the King can have the Land no longer but he conceived it was a Trust for Simon Mayne during the whole term A Trust he said was a right to receive the profits of the Land and to dispose of the Lands in Equity Now if Simon Mayne had a right to receive the profits and a present power to dispose of the Land he took it to be a Trust for him and that consequently by his attainder it was forfeited to the King Coleman contra As for the matter of Fraud first there is no Fraud found by the Iury and for you to judge of Fraud upon Circumstances is against the Chancellor of Oxfords case 10th Rep. As for the Trust it must be agreed that if there be any either Trust or Condition by construction upon these Provisoes in Simon Mayne in his life between Mich. 1646. and the time of making the Act the Trust will be vested in the King but whether will it be vested in the King as a Trust or as an Estate For I am informed that it hath been adjudged between the King and Holland Styles Reports That if an Alien purchase Copy-hold Lands the King shall not have the Estate but as a Trust and the particular reason was because the King shall not be Tenant to the Lord of the Mannor Keeling The Act of Parliament takes the Estate out of the Trustees and puts it in the King Coleman But I say here is no Trust forfeitable By the body of the Déed all is out of him If a man makes a feoffment in Fée to the use of his
5 Ed. 4. 6. Now for Authorities I confess there are great ones against me 2 Cro. fol. 335. Heath Ridley Moor. 838. Courtney versus Glanvill My Lord Coke in his Chapter of Praemunire 22 Ed. 4. fol. 37. But the greatest Authority against me is the case of Throgmorton Finch reported by my Lord Coke in his Treatise of Pleas of the Crown Chapter Praemunire But the practice has béen contrary not one person attainted of a Praemunire for that cause In King James his time the matter was referred to the Counsel who all agreed that the Chancery was not meant within the Statute which Opinions are inrolled in Chancery And the King upon the report of their Reasons ordered the Chancellor to proceed as he had done and from that time to this I do not find that this point ever came in question And so he prayed Iudgment for the Defendant Saunders As to that objection that at the time when this Statute was made there were no proceedings in Equity I answer that granting it to be true yet there is the same mischief The proceedings in one part of the Chancery are coram Domino Rege in Cancellaria but an English Bill is directed to the Lord Keeper and decreed so that there is a difference in the proceedings of the same Court But admit that Courts of Equity are the Kings Courts yet they are aliae Curiae if they hold plea of matters out of their Iurisdiction 16 Ri. 2. cap. 5. Rolls first part 381. There is a common objection that if there were no relief in Chancery a man might be ruined for the Common Law is rigorous and adheres strictly to its rules I cannot answer this Objection better then it is answered to my hand in Dr. Stud. lib. 1. cap. 18. he cited 13 Ri. 2. num 30. Sir Robert Cotton's Records It is to be considered what is understood by being impeached Now the words of another Act will explain that viz. 4 H. 4. cap. 23. by that Act it appears that it is to draw a Iudgment in question any other way then by Writ of Error or Attaint One would think this Statute so fully penned that there were no room for an evasion There was a temporary Statute which is at large in Rastall 31 H. 6. cap. 2. in which there is this clause viz. That no matter determinable at Common Law shall be heard elsewhere A fortiori no matter determined at Common Law shall be drawn in question elsewhere He cited 22 Ed. 4. 36. Sir Moyle Finch Throgmorton 2 Inst 335. and Glanvill Courtney's case He put them also in mind of the Article against Cardinal Woolsey in Coke's Jurisdiction of Courts tit Chancery So he prayed Iudgment for the Plaintiff Keeling It is fit that this cause be adjourned into the Exchequer-chamber for the Opinions of all the Iudges to be had in it We know what heats there were betwixt my Lord Coke Ellesmere which we ought to avoid Turner Benny A Writ of Error was brought to reverse a Iudgment in the Common Pleas in an Action upon the Case wherein the Plaintiff declared that it was agréeed betwéen himself and the Defendant that the Plaintiff should surrender to the use of the Defendant certain Copy-hold Lands and that the Defendant should pay for those Lands a certain sum of money and then he sets forth that he did surrender the said Lands into the hands of two Tenants of the Manor out of Court secundum consuetudinem c. Exception The promise is to surrender generally which must be understood of a surrender to the Lord or to his Steward and the Declaration sets forth a surrender to two Tenants which is an imperfect surrender 1 Cro. 299. Keeling But in that case there are not the words secundum consuetudinem as in this case Jones Hill 22 Car. 1. Rot. 1735. betwixt Treburn Purchas two points were adjudged 1. That when there is an agréement for a surrender generally then such a particular surrender is naught 2. That the alledging of a surrender secundum consuetudinem is not sufficient but it ought to be laid that there was such a Custom within the Manor and then that according to that Custom he surrendred into c. accordingly is 3 Cro. 385. Coleman contra We do say that we were to surrender generally and then we aver that actually we did surrender secundum consuetudinem and if we had said no more it had béen well enough Then the adding into the hands of two Tenants c. I take it that it shall not hurt Besides we need not to alledge a performance because it is a mutual promise and he cited Camphugh Brathwait's case Hob. Twisden I remember the case of Treborne he was my Clyent And the reason of the Iudgment is in Combe's case 9th Rep. because the Tenants are themselves but Attornies And they compared it to this case I am bound to levy a Fine it may be done either in Court or by Commission but I must go and know of the person to whom I am bound how he will have it and he must direct me In the principal case the Iudgment was affirm'd Nisi c. Turner Davies AUdita Querela The point was this viz. an Administrator recovers damages in an Action of Trover and Conversion for Goods of the Intestate taken out of the possession of the Administrator himself then his Administration is revoked and the question is whether he shall have Execution of the Iudgment notwithstanding the revocation of his Administration Saunders I conceive he cannot for the Administration being revoked his Authority is gone Doctor Druries case in the 8th Report is plain And there is a President in the new book of Entries 89. Barrell I conceive he may take our Execution for it is not in right of his Administration he lays the Conversion in his own time and he might in this case have declared in his own name and he cited and urged the reason of Pakman's case 6th Report 1 Cro. Keeling He might bring the Action in his own name but the Goods shall be Assets If Goods come to the possession of an Administrator and his Administration be repealed he shall be charged as Executor of his own wrong now in this case the Administration being repealed shall he sue Execution to subject himself to an Action when done Twisden I think it hath béen ruled that he cannot take out Execution because his Title is taken away Iudgment per Cur. versus Defendentem Jordan Martin EXception was taken to an Avowry for a Rent-charge that the Avowant having distrained the Beasts of a Stranger for his Rent does not say that they were levant couchant Coleman The Beasts of a Stranger are not liable to a Distress unless they be levant couchant Roll. Distress 668. 672. Reignold's case Twisd Where there is a Custom for the Lord to seize the best Beast for a Heriot and the Lord does seize the
for an excessive Distress for it is a private matter and the party ought to bring his Action To stay Haman Truant AN Action upon the Case brought upon a bargain for Corn and Grass c. The Defendant pleads another Action depending for the same thing The Plaintiff replies that the bargains were several absque hoc that the other Action was brought for the same cause The Defendant demurs specially for that he ought to have concluded to the Country Polyxfen When there is an affirmative they ought to make the next an Issue or otherwise they will plead in infinitum 3 Cro. 755. and accordingly Iudgment was given for the Defendant Fox alii Executors of Mr. Pinsent Vide supra 47. INdebitat Assumpsit The Defendant pleads that two of the Plaintiffs are Infants and yet they all Sue per Attornatum The question is if there be two Executors and one of them under age whether the Infant must sue per Guardianum and the other per Attornatum or whether it is not well enough if both sue per Attornat Offley spake to it and cited 2 Cro. 541. Pasch 11 Car. 288. Powell's case Styles 318. 2 Cro. 577. 1 Inst 157. Dyer 338. Morton I am of Opinion that he may Sue by Attorney as Executor though if he be Defendant he must appear by Guardian Rainsford I think it is well enough and I am led to think so by the multitude of Authorities in the point And I think the case stronger when Infants joyn in Actions with persons of full age He Sues here in auter droit and I have not heard of any Authority against it Twisden concurred with the rest and so Iudgment was given Moreclack Carleton UPon a Writ of Error out of the Court of Common Pleas one Error assigned was that upon a relicta verificatione a misericordia was entred whereas it ought to have been a capiatur Twisden The Common-Pleas ought to certifie us what the practice of their Court is Monday the Secondary said it was always a Capiatur It s true in 9 Edw. 4. it is said that he shall but be amerced because he hath spared the Iury their pains and 34 H. 8. is accordingly but say they in the Common Pleas a Capiatur must be entred because dedicit factum suum So they said they would discourse with the Iudges of the Common Pleas concerning it The King versus Holmes MOved to quash an Indictment of Forcible Entry into a Messuage passage or way for that a passage or way is no Land nor Tenement but an Easement and then it is not certain whether it were a passage over Land or Water Yelv. 169. the word passagium is taken for a passage over Water Twisd You need not labour about that of the passage we shall quash it as to that but what say you to the Messunge Jones It is naught in the whole for it is but by way of recital with a quod cum he was possessed c. Et sic possessionatus c. but that Twisden said was well enough Jones Then he saith that he was possessed de quodam Termino and doth not say annorum Twisden That 's naught And the Indictment was quash'd An Action was brought against the Hundred of Stoak upon the Statute of Hue and Cry and at the Trial some House-keepers appeared as Witnesses that lived within the Hundred who being examined said they were Poor and paid no Taxes nor Parish Duties and the question was whether they were good Witnesses or not Twisden Alms-people and Servants are good Witnesses but these are neither Then he went down from the Bench to the Iudges of the Common-Pleas to know their Opinions and at his return said That Iudge Wyld was confident that they ought not to be sworn and that Iudge Tyrrell doubted at first but afterwards was of the same Opinion their reason was because when the money recovered against the Hundred should come to be levied they might be worth something Hoskins versus Robins Hill 23 Car. 2. Rot. 233. IN this case these points were spoke to in Arrest of Iudgment viz. 1. Whether a Custom to have a several Pasture excluding the Lord were a good Custom or not It was said that a prescription to have Common so was void in Law and if so then a prescription to have sole Pasture which is to have the Grass by the mouth of the Cattle is no other then Common appendant Daniel's case 1 Cro. so that Common and Pasturage is one and the same thing They say that it is against the nature of Common for the very word Common supposeth that the Lord may feed I answer if that were the reason then a man could not by Law claim Common for half a year excluding the Lord which may be done by Law But the true reason is that if that were allowed then the whole profits of the Land might be claimed by prescription and so the whole Land be prescribed for The Lord may grant to his Tenants to have Common excluding himself but such a Common is not good by prescription The second point was whether or no the prescription here not being for Beasts levant couchant were good or not for that a difference was made betwixt Common in grosse and common appendant viz. That a man may prescribe for Common in grosse without those words but not for Common appendant 2 Cro. 256. 1 Brownl 35. Noy 145. 15 Edw. 4. fol. 28. 32. Rolls tit Common 388. Fitz. tit Prescription 51. a third point was whether or no these things are not help'd by a Verdict As to that it was alledged that they are defects in the Title appearing on Record and that a Verdict doth not help them Saunders contra In case of a Common such a prescription is not good because it is a contradiction but here we claim solam Pasturam Now what may be good at this day by grant may be claimed by prescription As to the Exception that we ought to have prescribed for Cattle levant couchant its true if one doth claim Common for Cattle levant couchant is the measure for the Common unless it be for so many Cattle in number but here we claim the whole Herbage which perhaps the Cattle levant couchant will not eat up Hales Notwithstanding this prescription for the sole Pasture yet the Soil is the Lords and he has Mynes Trees Bushes c. and he may dig for Turfes And such a grant viz. of the sole Pasturage would be good at this day 18 Edw. 3. though a grant by the Lord that he will not improve would be a void grant at this day Twisden My Lord Coke is express in the point A man cannot prescribe for sole Common but may prescribe for sole Pasture And there is no Authority against him And for levant couchant it was adjudged in Stoneby Muckleby's case that after a Verdict it was help'd And Iudgment was given accordingly Anonymus AN Action of
take notice that he is a Bankrupt any Execution may be stopped at that rate by alledging that there is a Commission of Bankrupts out against the Plaintiff If he be a Bankrupt you must take out a special Scire facias and try the matter whether he be a Bankrupt or not Which Jones said they would do and the Court granted Twisden If a Mariner or Ship-Carpenter run away he loses his wages due which Hales granted Henry L. Peterborough vers John L. Mordant A Trial at Bar upon an Issue out of the Chancery whether Henry Lord Peterborough had only an Estate for Life or was seized in Fee-tail The Lord Peterborough's Counsel alledged that there was a settlement made by his Father 9 Car. 1. whereby he had an Estate in Tail which he never understood till within these three years but he had claimed hitherto under a Settlement made 16 Car. 1. And to prove a Settlement made 9 Car. 1. he produced a Witness who said that he being to purchase an Estate from my Lord the Father one Mr. Nicholls who was then of Counsel to my Lord gave him a Copy of such a Deed to shew what title my Lord had But being asked whether he did see the very Deed and compare it with that Copy he answered in the negative whereupon the Court would not allow his Testimony to be a sufficient Evidence of the Deed and so the Verdict was for my Lord Mordant Cole Forth A Trial at Bar directed out of Chancery upon this Issue whether Wast or no Wast Hales By protestation I try this cause remembring the Statute of 4 Henr. 4. And the Statute was read whereby it is Enacted That no Iudgment given in any of the Kings Courts should be called in question till it were reverst by Writ of Error or Attaint He said this cause had been tried in London and in a Writ of Error in Parliament the Iudgment affirmed Now they go into the Chancery and we must try the cause over again and the same point A Lease was made by Hilliard to Green in the year 1651. afterwards he deviseth the Reversion to Cole and Forth gets an under-Lease from Green of the premisses being a Brew-house Forth pulls it down and builds the ground into Tenements Hales The question is whether this be Wast or no and if it be Wast at Law it is so in Equity To pull down a House is Wast but if the Tenant build it up again before an Action brought he may plead that specially Twisden I think the Books are pro and con whether the building of a new House be Wast or not Hales If you pull down a Malt-mill and build a Corn-mill that is Wast Then the Counsel urged that it could not be repaired without pulling it down Twisden That should have been pleaded specially Hales I hope the Chancery will not Repeal an Act of Parliament Wast in the House is Wast in the Curtelage and Wast in the Hall is Wast in the whole House So the Iury gave a Verdict for the Plaintiff and gave him 120 l. damages Term. Mich. 25 Car. II. 1673. in B. R. AN Action of Debt was brought upon a Bond in an inferiour Court the Defendant cognovit actionem petit quod inquiratur per patriam de debito This pleading came in question in the Kings Bench upon a Writ of Error but was maintain'd by the Custom of the place where c. Hales said it was a good Custom for perhaps the Defendant has paid all the Debt but 10 l. and this course prevents a Suit in Chancery And it were well if it were established by Act of Parliament at the Common Law Wild. That Custom is at Bristow Randall versus Jenkins 24 Car. 2. Rot. 311. REplevin The Defendant made Conusance as Bayliff to William Jenkins for a Rent-charge granted out of Gavel-kind Lands to a man and his Heirs The question was whether this Rent should go to the Heir at Common Law or should be partible amongst all the Sons Hardres It shall go to the eldest Son as Heir at Law for I conceive it is by reason of a Custom time out of mind used that Lands in Kent are partible amongst the Males Lamb. Perambulat of Kent 543. Now this being a thing newly created it wants length of time to make it descendible by Custom 9 H. 7. 24. A feoffment in Fee is made of Gavel-kind Lands upon Condition the Condition shall go to the Heirs at Common Law and not according to the descent of the Land Co. Litt. 376. If a warranty be annex'd to such Lands it shall descend only upon the eldest Son Now this Rent-charge being a thing contrary to common right and de novo created is not apportionable Litt. Sect. 222. 224. it is not a part of the Land for if a man levy a Fine of the Land it will not extinguish his Rent unless by agreément betwixt the parties 4 Edw. 3. 32. Bro. tit Customs 58. if there be a Custom in a particular place concerning Dower it will not extend to a Rent-charge Fitz. Dower 58. Co. Litt. 12. Fitz. Avowry 207. 5 Edw. 4. 7. there is no occasion in this case to make the Rent descendible to all for the Land remains partible amongst the Males according to the Custom And why a Rent should go so to the prejudice of the Heir I know not 14 H. 88. it is said that a Rent is a different and distinct thing from the Land Then the language of the Law speaks for general Heirs who shall not be disinherited by construction The grand Objection is whether the Rent shall not follow the nature of the Land 27 H. 8. 4. Fitzherb said he knew four Authorities that it should Fitz. Avowry 150. As for his first case I say that Rent amongst Parceners is of another nature than this for that is distreynable of Common right As for the second I say the rule of it holds only in cases of Proceedings and Trials which is not applicable to his Custom His third case is that if two Coparceners make a feoffment rendring Rent and one dies the Rent shall not survive To this I find no answer given Litt. Sect. 585. is further objected where it is said that if Land be deviseable by Custom a Rent out of such Lands may be devised by the same Custom but Authorities clash in this point He cited farther these books viz. Lamb. Peramb of Kent and 14 H. 8. 7 8. 21 H. 6. 11. Noy Randall Roberts case 51. Den. cont I conceive this Rent shall descend to all the Brothers for it is of the quality of the Land and part of the Land it is contained in the bowels of the Land and is of the same nature with it 22 Ass 78. which I take to be a direct Authority as well as an instance Co. Lit. 132. ibid 111. In some Boroughs a man might have devised his Land by Custom and in those places he might have devised a Rent
of Jerman it was held that all my Estate comprehends all my Title and Interest in the Land If a man deviseth all his Inheritance this carries the Fee-simple of his Land and the word all his Estate is as comprehensive as that Hales Wyld By a Grant or Release of totum statum suum the Fee-simple will pass if the words had been all my Tenant-right Lands it had been otherwise but the word Estate is more then so if a man deviseth all his Copy-hold Estate will not all his whole Interest pass Adjornatur Norman Foster AN Action of Debt upon a Bond to perform Covenants in an Indenture of Lease one Covenant is for quiet enjoyment and the Plaintiff assigns for breach that a Stranger entred but does not say that he had Title Hales Habens Titulum at that time would have done your business My Lord Dyer's case is that another entred claiming an Interest but that is not enough for he may claim under the Lessee himself He mentioned the cases in Moor 861. Hob. 34. Tisdale Essex If the Covenant had been to save him harmless against all lawful and unlawful Titles yet it must appear that he that entred did not claim under the Lessee himself Hales If I Covenant that I have a lawful right to grant and that you shall enjoy notwithstanding any claiming under me these are two several Covenants and the first is general and not qualified by the second And so said Wyld and that one Covenant went to the Title and the other to the possession Dyer 328. An Assumpsit to enjoy sine interruptione alicujus that is whether by Title or by Tort a quiet possession being to be intended to be the chief cause of the Contract 3 Leon. 43. 2 Cro. 425 315. 444. Adjornatur Angell convicted of Barretry produced a Pardon which was of all Treasons Murders Felonies and all Penalties Forfeitures and Offences The Court said the words all Offences will pardon all that is not capital Blackburn Graves A Copy-holder surrenders to the use of several persons for years successive the Remainder in Fee to J. S. Wyld An admittance of a particular Tenant is an admittance of all the Remainders to all purposes but only the Lords Fine and if the Custom be that the Fine paid by the first Tenant shall go to all the Remainders then the admittance of the first man is to all intents and purposes an admittance of all that come after In this case the possession of the Lessée for years is the possession of the Remainder-man In one Baker Dereham's case there was a surrender to the use of a man and his Heirs of Copy-hold Land that discended according to the Custom of Borough-English the surrenderee dyed before admittance and the Opinion of the Court was that the right would discend to the youngest according to the Custom Vpon a case moved Hales said That if a Tenant in Common bring a personal Action without his fellow joyning in the Suit the Defendant ought to take advantage of it in abatement but if he plead Not-guilty it shall be good but then he shall recover damages only for a moiety If a Tenant in Common seal a Lease of Ejectment he shall recover but a moiety A Iustice of Peace committed a Brewer for not paying the duty of Excise the Brewer was brought into Court by Habeas Corpus Sympson It ought to appear that he was a common Brewer Hales The Statute doth prohibit the bringing of a Certiorari but not a Habeas Corpus And want of averment of a matter of fact may be amended in a Return in Court and if it be not true at their peril be it So it was mended Money owing upon a Iudgment given in the Kings Court cannot be attached Term. Hill 25 26 Car. II. 1673. in B. R. Baker Bulstrode DEbt upon a Bond. The Condition was to Seal and execute a Release to the Plaintiff The Defendant demurs because the Plaintiff did not alledge in his Declaration a tender of a Release It was urged that the Condition was not to make but only to Seal and Execute c. But per Curiam he is bound to do it without a tender And the word Execute or the word Seal comprehends the making And Lamb's case was cited Warren Prideaux Trin. 24 Car. 2. Rot. 1472. A Distress and Avowry for Toll The prescription was for Toll in consideration of maintaining the Key and keeping a Bushel to measure Salt viz. That in consideration thereof he and those c. have had time out of mind c. a Bushell of Salt of every Ship that comes laden with Salt into Slipper-point For the Avowant it was alledged that the maintaining of the Key is for publick good Co. Magn. Cart. 222. Rolls 265. It s true it is not alledged that they did actually use the Weights and Measures 1 Leon. 231. but it being alledged that the Ship came within Slipper-point it is enough to charge the Plaintiff with the payment As for the Distress taken which is part of the Ships lading viz. Salt it is objected that it cannot be distrained because it is part of the thing from which the duty ariseth but I answer that this is not like to a Distress upon Land nor to be judged of according to the rules allowed in cases of such Distresses There were cited on this side 21 H. 7. 1. 3 Cro. 710. Smith Shepheard Dyer 352. Courtney contra I conceive this prescription ought to have some consideration and to be grounded on a meritorious cause to bind a Subject The keeping of the Bushell is no meritorious cause because it is presumed that the party hath the use of it himself Hales The prescription is not for a Port but a Wharfe If any man will prescribe for a Toll upon the Sea he must alledge a good consideration because by Magna Charta and other Statutes every one hath liberty to go and come upon the Sea without impediment Wyld This Custom or Prescription is laid to have a Bushell of Salt of every Ship that comes within the Slipper-point if a Ship be driven in by stress of weather and goes out again the first opportunity that presents shall that Ship pay Hales If he had said that he had a Port and was bound to maintain that Port and that he and all those whose Estate he had c. that might have been a good Prescription but in this case there must be a special inducement and compensation to the Subject by reason of those Statutes by which all Merchants and others have liberty to come in and go out They inclin'd that the Prescription was not good Anonymus A Trial at Bar concerning the River of Wall-fleet the question was whether had not the right of Fishing there exclusive of all others Hales In case of a private River the Lords having the Soil is a good evidence to prove that he hath the right of Fishing and it puts the
pleaded A special Verdict that the Lands are Copyhold Lands and surrendred to the use of one for eleven years the Remainder for five years to the Daughter the Remainder to the right heirs of the Tenant for eleven years The eleven years expire the Daughter is admitted the five years expire And there being a Son and Daughter by one Venter and a Son by another Venter the Son of the first Venter dies before admittance and the Daughter of the first Venter and her Husband bring Trover for cutting down of Trees And the question was if the admittance of Tenant for years was the admittance of the Son in Remainder Levings I conceive it is and then the Son is seized and the Daughter of the whole blood is his heir and he cited 4 Rep. 23. 3 Cro. 503. Bunny's case Wyld The Estate is bound by the Surrender Hales If a man doth surrender to the use of John Styles till admitted there is no Estate in him but remains in the Surrenderor but he hath a right to have an admittance If a surrender be to J. S. and his heirs his heir is in without admittance if J. S. dies About this hath indeed been diversity of Opinion but the better Opinion hath been according to the Lord Coke's Opinion I do not see any inconvenience why the admission of Tenant for life or years should not be the admittance of all in Remainder for Fines are to be paid notwithstanding by the particular Remainders and so the Books say it shall be no prejudice to the Lord. Twisd I think it is strong that the admission of Lessee for years is the admission of him in Remainder for as in a case of possessio fratris the Estate is bound so that the Sister shall be heir so here the Estate is bound and goes to him in Remainder Hales I shall not prejudice the Lord for if a Fine be assessed for the whole Estate there is an end of the business but if a Fine be assessed only for a particular Estate the Lord ought to have another If a surrender be to the use of A. for life the Remainder to his eldest Son c. or to the use of A. and his heirs and then A. dies the Estate is in the Son without admittance whether he takes by purchase or descent And Iudgment was given accordingly Draper versus Bridwell Rot. 320. ALL the Court held that an Action of Debt would lye upon a Iudgment after a Writ of Error brought Twisden They in the Spiritual Court will give Sentence for Tythes for rakings though they be never so unvoluntarily left which our Law will not allow of Wyld said that Actions personal transitory though the party doth live in Chester yet they may be brought in the Kings Courts Hales Shew a President where a man can wage his Law in an Action brought upon a Prescription for a duty as in an Action of Debt for Toll by Prescription you cannot wage your Law Pybus versus Mitford Postea THe Chief Iustice delivered his Opinion Wyld Rainsford and Twisden having first delivered theirs Hales I think Iudgment ought to be given for the Defendant whether the Son take by descent or purchase I shall divide the case 1 Whether the Son doth take by descent 2 Admitting he doth not whether he can take by purchase We must make a great difference betweén Conveyances of Estates by way of use and at Common Law A man cannot convey to himself an Estate by a Conveyance at Common Law but by way of Vse he may But now in our case here doth doth retorn by operation of Law an Estate to Michael for his life which is conjoyned with the Limitation to his heirs The reason is because a Limitation to the heirs of his body is in effect to himself this is perfectly according to the intention of the parties Objection The use being never out of Michael he hath the old use and so it must be a Contingent use to the heirs of his body But I say we are not here to raise a new Estate in the Covenantor but to qualifie the Estate in Fee in himself for the old Estate is to be made an Estate for life to serve the Limitation Further Objection It shall be the old Estate in Fee as if a man deviseth his Lands to his heirs the heir is in of the old Estate But I answer if he qualifie the Estate the Son must take it so as in Hutton fo So in this case is a new qualification Roll 789. 15 Jac. If a man makes a Feoffment to the use of the heirs of the body of the Feoffor the Feoffor hath an Estate Tail in him Pannel versus Fenne Moor 349. Englefield and Englefield 2 I conceive if it were not possible to take by descent this would be a Contingent use to the heirs of the body Objection It is limited to the heir when no heir in being Why I say it would have come to the heir at Common Law if no express Limitation had been and it cannot be intended that he did mean an heir at Common Law because he did specially limit it Fitz. tit Entayle 23. An Assise for the Serjeant at Mace's place in the House of Commons The Plaintiff had his Patent read The Court asked if they could prove Seisin They answered that they had recovered in an Action upon the case for the mean profits and had Execution Court For ought we know that will amount to a seisin Twisden Vpon your grant since you could not get seisin you should have gone into Chancery and they would have compelled him to give you seisin Hales A man may bring an Action upon the case for the profits of an Office though he never had seisin So the Record was read of his Recovery in an Action upon the case for the profits Hales This is but a seisin in Law not a seisin in Fact The Counsel for the Plaintiff much urged that the Recovery and Execution had of the profits was a sufficient seisin to entitle them to an Assise It was objected that the Plaintiff was never invested into the Office Hales said That an investiture did not make an Officer when he is created by Patent as this is but he is an Officer presently But if he were created an Herald at Arms as in Segars case he must be invested before he can be an Officer a person is an Officer before he is sworn Hales You are the Pernor of the profits and they have recovered them is not this a Seisin against you They shall find it specially but they chose rather to be Non-suit because of the delay by a special Verdict And the Court told them they could not withdraw a Iuror in an Assise for then the Assise would be depending The Roll of the Action sur le case fuit 19 Car. 2. Mich. Rot. 557. Term. Trin. 15 Car. II. 1663. Judge Hide 's Argument in the Exchequer-Chamber Manby versus Scott A Feme Covert departs
common right the words of reservation ought to be pursued but as to this the Court delivered no Opinion Ognell versus the Lord Arlington Guardian of Sir John Jacob. UPon a Trial at Bar the Court delivered for Law to the Iury that if there be Tenant by Elegit of certain Lands and a Fine be levied of those Lands and five years with non-claim pass that the interest of the Tenant by Elegit is bound according to Saffyn's case 5 Rep. otherwise if the Land had not been actually extended Also that if an Inquisition upon an Elegit be found the party before entry has the possession and a fine with non-claim shall bar his right for before actual entry he may have Ejectione firmae or Trespass and so not like to an interesse termini Barry Trebeswycke IF a Parson have a Pension by Prescription he may either bring an Action at the Common Law or commence a Suit in the Spiritual Court but if he brings a Writ of Annuity at the Common Law he can never after sue in the Spiritual Court for that his Election is determined Wakeman Blackwell IN a Quare impedit the Defendant pleaded a recovery in this manner viz. that John Wakeman Grandfather to the Plaintiff was seized in fee of the Mannor to which c. and that a Praecipe was brought against one Prinne Philpotts adtunc tenentes liberi tenementi c. who appeared and vouched John Wakeman c. and that this Recovery was to the use of J. S. under whom the Defendant claims Strode pro Defendente it is not necessary that the Tenant in a Common Recovery have a Freehold at the time of the purchase of the Writ if he have at the time of the return it sufficeth 7 Ed. 3. 42. 7 Ed. 3. 70. Ass of no. diss 43 Ed. 3. 21. in these Authorities the person against whom the Praecipe is brought comes in by right after the purchase and before the return of the Writ But in 26 Ed. 3. 68. there is an example where the Tenant to the Praecipe comes in by tort but there is this difference if he comes to the Land by his own act be it by right or by wrong there he makes the Writ good otherwise if he come to it by act of Law 8 Ed. 3. 22. a. Formedon 25 H. 6. 4. the reason why you shall not abate the Plaintiffs Writ by your own act is because you cannot give him a better The demandant here is estopped to say that there was not a Tenant to the Praecipe in this Recovery for the Writ is but abatable if brought against one that is not Tenant and as long as it stands not abated but is pleaded to c. it shall conclude all that are parties and privies and all claiming under them 34 Ed. 3. F. tit droit 39. here is in our case an estoppell with a recompence Wakeman the Grandfather who was the first Vouchee in this Recovery might have counterpleaded the lien and extorted the warranty but having vouched over he is past that advantage and is concluded being made a party by Voucher This being a common Recovery the Court will do all they can to make it good A Fine is levied by Dedimus potestatem by Baron and Feme The Commissioners did not return the examination of the wife and yet that is the discriminating difference upon which depends whether the wife shall be bound by the Fine or not 15 Ed. 4. 28. a. Litt. Sect. 670. 6 Ed. 3. 22. a. The Court must needs in this case intend that Prinne Philpots came in by conveyance because Wakeman came in upon the Voucher which he would not have done if there had not been a lien He cited Cro. Jac. 454. Lincoln Colledge case 3 Rep. 48. Hob. 262. Duncomb Wingfield's case To which Pemberton answered that tunc tenens is a sufficient averment in the pleading of a Recovery which is favoured in Law but it is not good alone when in the same sentence a matter is set forth that is inconsistent with it and plainly contradictory as in this case and of that opinion was the Court. The case in Hob. they said was upon a special Verdict where many things may be intended which shall not be so in pleading and in Lincoln Col ' case the Writ is said to be brought against one Edw. Chamberlain in one part of the Record and the Mother is said to be Tenant in another part of the Record and by the other party but here in the same sentence unto flatu there is a flat contradiction Burrow Haggett FOrmedon in the descender The Defendant pleaded in abatement of the Count and took these exceptions 1. That the demandant declares that the right descended to him after the death of Leonard as Brother and heir to Leon and Son and Heir of the Donee but does not alledge that Leonard died without issue 8 Rep. 88. Buckmere's case In ancient Registers the clause is eo quod the issue dyed without issue Co. Ent. 254. b. c. Rast Entr. 365. C. Yelv. 227. Glasse Gyll's case 9 Ed. 4. 36. a man that entitles himself as heir must shew how he is heir Seyse contra The presisidents are on our side and the difference is betwixt a Formedon in the descender and a Formedon in the remainder or reverter In the former they do not mention the dying without issue of him after whose death they claim for the Count there is in effect only to set out their pedigreé but in a Formedon in the Remainder or Reverter it is otherwise 39 Ed. 3. 27. Old Book of Ent ' 339. tit Formed ' bar plac ' 3. Co. Lit. Mandevile's case 26 b 7 H. 7. fol. 7. b. there our case is put in express terms the exception taken to the Count there by Keble is the same that is taken to ours here and there it is over-ruled North I have looked into presidents and find the Count in this case according to them It is a plain and reasonable difference betwixt a Formedon in the discender and a Formedon in the remainder or reverter nor could the demandant be brother and heir to Leonard if Leonard had left children c. Another exception was that the demandant does not set forth that he was Son and heir of John begotten on the body of Jane his wife for it was a gift in special tail But this was over-ruled for in the Writ that is set forth and in the Declaration after the words filio haeredi praedict Johannis came an c. which c. let the words of the Writ into the Count and so it was held good The Prothonotaries said that the forms of Counts were accordingly And Iudgment was given to answer over Nisi causa c. Term. Mich. 28 Car. II. in Communi Banco Blythe versus Hill DEbt upon an Obligation for the payment of money at a day certain The Defendant pleaded that the Plaintiff being
feigned names The first cause thereof was the ignorance of Sheriffs who being to make a return looked into some Book of Presidents for a form and finding the names of John Doo and Rich. Roo put down for examples made their return accordingly and took no care for true Sumners and true Manucaptors For Non-appearance at the return of the great Distress in a plea of Quare Impedit final Iudgment is to be given and our right bound for ever which ought not to be suffered unless after Process legally served according to the intention of the Statute In a case Mich. 23. of the present King Iudgment was entred in this Court in a plea of Quare impedit upon non-appearance to the great Distress but there the party was summoned and true Summoners returned upon non-appearance an Attachment issued and real Sumners return'd upon that but upon the Distress it was return'd that the Defendants districti fuerunt per bona catalla manucapti per Joh. Doo Rich. Roo and for that cause the Iudgment was vacated Cur ' The design of the Statute of Marlebridge was to have Process duly executed which if it were executed as the Law requires the Tenant could not possibly but have notice of it For if he do not appear upon the Summons an Attachment goes out that is a command to the Sheriff to seize his body and make him give Sureties for his appearance if yet he will not appear then the great distress is awarded that is the Sheriff is commanded to seize the thing in question if he come not in for all this then Iudgment final is to be given Now the issue of this Process being so fatal that the right of the party is concluded by it we ought not to suffer this Process to be changed into a thing of course It is true the Defendant here had notice of the Suit but he had not such notice as the Law does allow him And for his fourching in essoyn the Law allows it him Accordingly the Iudgment was set aside Anonymus FAlse Judgment out of a County Court the Record was vitious throughout and the Iudgment reversed and ordered that the Suitors should be amerced a Mark but the Record was so imperfectly drawn up that it did not appear before whom the Court was held and the County Clark was fined Five pounds for it Cessavit per biennium the Defendant pleads Non-tenure He commenceth his plea quod petenti reddere non debet but concludes in abatement Serjeant Barrell He cannot plead this plea for he has imparled Cur̄ Non-tenure is a plea in bar the conclusion indeed is not good but he shall amend it Barrell Non-tenure is a plea in abatement The difference is betwixt Non-tenure that goes to the tenure as when the Tenant denies that he holds of the demandant but says that he holds of some other person which is a plea in bar and Non-tenure that goes to the Tenancy of the Land as here he pleads that he is not Tenant of the Land and that goes in abatement only The Defendant was ordered to amend his plea. Addison versus Sir John Otway TEnant in tail of Lands in the Parishes of Rippon Kirby-Marleston in the Towns of A. B. C. Tenant in Tail makes a Deed of bargain and sale to J. S. to the intent to make J. S. Tenant to the Praecipe in order to the suffering of a common Recovery of so many Acres in the Parishes of Rippon Kirby-Marlestone Now in those Parishes there are two Towns called Rippon Kirby-Marlestone and the Recovery is suffered of Lands in Rippon Kirby-Marlestone generally all this was found by special Verdict and further that the intention of the parties was that the Lands in question should pass by the said recovery and that the Lands in question are in the Parishes of Rippon Kirby-Marlestone but not within the Townships and that the bargainor had no Lands at all within the said Townships The question was whether the Lands in question should pass by this Recovery or not Shaftoe They will pass The Law makes many strained constructions to support common Recoveries and abates of the exactness that is required in adversary Suits 2 Rolls 67. 5 Rep. Dormer's case Eare Snow Plo. Com. Sir Moyle Finche's case 6 Rep. Cr. Jac. 643. Ferrers Curson In Stork Foxe's case Cr. Jac. 120 121. where two Villes Walton Street were in the Parish of Street and a man having Lands in both levied a Fine of his Lands in Street his Lands in Walton would not pass but there the Conusor had Lands in the Town of Street to satisfie the grant but in our case it is otherwise He cited also Rolls Abridgm Grants 54. Hutton 105. Baker Johnson The Deed of bargain and sale and the Recovery make up in our case but one assurance and construction is to be made of both together as in Cromwells case 2 Report The intention of the parties Rules Fines and Recoveries and the intention of the parties in our case appears in the Deed and is found by the Verdict Rolls Abridgm 19. 2 part Winch. 122. per Hob. Cr. Car. 308. Sir George Symond's case betwixt which last case and ours all the diffreence is that that case is of a Fine and ours of a Common Recovery betwixt which Conveyances as to our purpose there is no difference at all He cited Jones Wait's case Trin 27 Car. 2. in this Court and a case 16 Reg. nunc in B. R. when Hide was Chief Iustice betwixt Thynne Thynne North. The Law has always stuck at new niceties that have been started in cases of Fines and Common Recoveries and has gotten over almost all of them I have not yet seen a case that warrants the case at Bar in all points Nor do I remember an Authority expresly against it and it seems to be within the reason of many former resolutions But we must be cautious how we make a further step Wyndham I think the Lands in question will pass well enough and that the Deed of bargain and sale which leads the uses of the Recovery does sufficiently explain the meaning of the words Rippon Kirby Marlestone in the recovery I do not so much regard the Iuries having found what the parties intention was as I do the Deéd it self in which he expresses his own intention himself and upon that I ground my Opinion Atkyns agreed with Wyndham Indeed when a place is named in legal proceedings we do prima facie intend it of a Ville if nothing appears to the contrary stabitur praesumptio donec probetur in contrarium In this case the Evidence of the thing it self is to the contrary The reason why prima facie we intend it of a Ville is because as to civil purposes the Kingdom is divided into Villes He do not intend it of a Parish because the division of the Kingdom into Parishes is an Ecclesiastical distribution to Spiritual purposes
a distinction Our Saviour is called the Son of David though there were 28 Generations betwixt David and him And a republication may impose another sense upon words different from what they had when they were first written as if a man devise all his Lands in Dale and have but two Acres in Dale the words now extend to no more then those two Acres and if he purchase more and dye without any new publication the new purchased Lands will not pass But if there were a new publication after the purchase they would then pass well enough If a man has issue two Sons called Thomas and he makes a devise to his Son Thomas this may be ascertained by an averment Now suppose that Thomas the deviseé dye living the Father and afterward the Father publisheth his Will anew and says that he did intend that his Son Thomas now dead should have had his Land but now his Will and intent is that Thomas his younger Son now living shall take his Land by the same Will In this case to be sure the second Son Thomas shall take by the devise Here the import of the words is clearly altered by the republication Atkyns The words of this Will would not of themselves be sufficient to carry the Land to the Grand-child nor would the intention of the Devisor do it without them but both together do the business Quae non prosunt singula juncta juvant Wyndham Scroggs differed in Opinion and the cause was adjourned to be argued the next Term. North. A man admitted in forma pauperis is not to have a new Trial granted him for he has had the benefit of the Kings Iustice once and must acquiesce in it We do not suffer them to remove causes out of inferiour Courts They must satisfie themselves with the Iurisdiction within which their Action properly lieth Farrington Lee. ASsumpsit The Plaintiff declares upon 2 indebitatus Assumpsits and a third Assumpsit upon an insimul computasset The Defendant pleaded non Assumpsit infra sex annos the Plaintiff replied that himself is a Merchant and the Defendant his Factor and recites a clause in the Statute in which Actions of Account between Merchants and Merchants and Merchants and their Factors concerning their Trade and Merchandize are excepted and avers that this money became due to the Plaintiff upon an account betwixt him and the Defendant concerning Merchandise c. the Defendant makes an impertinent rejoynder to which the Plaintiff demurs Nudigate pro Querente This Statute is in the nature of a penal Law because it restrains the liberty which the Plaintiff has by the Common Law to bring his Action when he will and must therefore be construed beneficialy for the Plaintiff Pl. 54. Cr. Car. 294. Finche Lambe's case to this purpose Also this exception of Accounts between Merchants and their Factors must be liberally expounded for their benefit because the Law-makers in making such an exception had an eye to the incouragement of Trade and Commerce The words of the exception are other then such Accounts as concern the Trade of Merchandise c. now this Action of ours is not indeed an Action of Account but it is an Action grounded upon an Account And the Plaintiff being at liberty to bring either the one or the other upon the same cause of Action and one of the Actions being excepted expresly out of the limitation of the Statute the other by Equity is excepted also He cited Hill 17 Car. 1. in Marshe's Reports 151. Jones 401. Sandys Blodwell Mich. 13 Car. 1. and prayed Iudgment for the Plaintiff Serjeant Baldwin contra He said it did not appear in the Declaration that this Action was betwixt a Merchant and his Factor so that then the plea in bar is prima facie good And when he comes and sets it forth in his Replication he is too late in it and the replication is not pursuant to his Declaration But all the Court was against him in this Then he said the Statute excepted Actions of Account only and not Actions upon an indeb Assumpsit Cur ' Whereas it has been said by Serjeant Nudigate that the Plaintiff here has an Election to bring an Action of account or an Indebitat Assumpsit that is false for till the Account be stated betwixt them an Action of Account lies and not an Action upon the Case When the Account is once stated then an Action upon the case lies and not an Action of Account Et per North if upon an Indebitat Assumpsit matters are offered in evidence that lie in account I do not allow them to be given in evidence North Wyndham Scroggs the exception of the Statute goes only to Actions of Account and not to other Actions And we take a diversity betwixt an account current and an account stated After the account stated the certainty of the Debt appears and all the intricacy of account is out of doors and the Action must be brought within six years after the account stated But by North if after an account stated upon the ballance of it a sum appear due to either of the parties which sum is not paid but is afterward thrown into a new account between the same parties it is now slip't out of the Statute again Scroggs The Statute makes a difference betwixt Actions upon Account and Actions upon the case The words would else have been All Actions of Account and upon the Case other then such Actions as concern the Trade of Merchandise But it is otherwise penned other then such Accounts as concern c. and as this case is there is no account betwixt the parties the account is determined and the Plaintiff put to his Action upon an insimul computasset which is not within the benefit of the exception Atkyns I think the makers of this Statute had a greater regard to the persons of Merchants then the causes of Action between them And the reason was because they are often out of the Realm and cannot always prosecute their Actions in due time The Statute makes no difference betwixt an account current and an account stated I think also that no other sort of Tradesmen but Merchants are within the benefit of this exception and that it does not extend to Shop-kéepers they not being within the same mischief Adjurnatur Horn versus Chandler COvenant upon an Indenture of an Apprentice wherein the Defendant bound himself to serve the Plaintiff for seven years The Plaintiff sets forth the custom of London That any person above 14 and under 21 unmarried may bind himself Apprentice c. according to the custom and that the Master thereupon shall have tale remedium against him as if he were 21 and alledges that the Defendant did go away from his Service per quod he lost his Service for the said term which term is not yet expired The Defendant pleads a frivolous plea. To which the Plaintiff demurs Heley Though such a Covenant shall
is 24 Ed. 3. 30. Pl. 27. which is our very case The King brings a Quare Impedit for a Church appendant to a Mannor as a Guardian the Defendant makes a Title and traverseth the Title alledged by the King in his Count viz. the appendancy the King replies and Traverses the Defendants Title For this cause the Defendant demurs and Iudgment was for the King In this case it doth not appear in the pleading that the King was in by matter of Record and so it is our very case For the King may be in by possession by virtue of a Wardship without matter of Record by Entry c. Stamf. Prerog 54. I rely upon these two Cases But 7 H. 8. Keil 175. is somewhat to the purpose Per Fitz. In a Ravishment of Ward by the King if the Defendant make a Title and traverse the Kings Title the Kings Attorney may maintain the Kings Title and Traverse the Defendants Title I think there is no difference betwéen the Kings being in possession by matter of Record and by matter of Fact Again If matter of Record be necessary here is enough viz. The Queens Presentation under the Great Seal of England And here is a descent which is and must be Jure Coronae It is unreasonable that a Subject should turn the King out of possession by him that hath no Title This is a Prerog Case As to the Statutes objected by my Brother Archer they concern not this case The first enables the Patron to counterplead But here the Patron pleads The rest concern the Kings Presenting En auter droit But here it is in his own Right I think the King in our case may fly upon the Defendants Title and there is no inconvenience in it For the Kings Title is not a bare suggestion For it is confessed by the Defendant that the Quéen did Present But he alledges it was by Lapse For another reason I think Iudgment ought to be for the King viz. because the Defendant has committed the first fault For his Bar is naught in that he has traversed the Queens Seisin in Grosse whereas he ought to have traversed the Queens Presentment modo forma For where the Title is by a Seisin in Grosse it is repugnant to admit the Presentment and deny the Seisin in Grosse because the Presentment makes it a Seisin in Grosse 10 H. 7. 27. Pl. 7. in point and so is my Lord Buckhurst's Case in 1 Leonard 154. The traverse here is a matter of substance But if it be but Form it is all one For the King is not within the Statute 27 El. cap. 5. So he concluded that Iudgment ought to be given for the King Doctor Lee's Case A Motion was made by Raymond for a Writ of Priviledge to be discharged from the Office of Expenditour to which he was elected and appointed by the Commissioners of Sewers in some part of Kent in respect of some Lands he had within the Levell He insisted that the Doctor was an Ecclesiastical person Archdeacon of Rochester where his constant attendance is required Adding that the Office to which he was appointed was but a mean Office being in the nature of that of a Bayliff to receive and pay some small sums of money and that the Lands in respect whereof he is elected were let to a Tenant V. 1. Cr. 585. Abdy's case It was objected against this that this Archdeacons Predecessors did execute this Office and the Court ordered that notice should be given and cause shewn why the Doctor should not do the like Afterward Rainesford Morton only being in Court it was ruled he should be priviledged Because he is a Clergy-man F. B. 175. r. But I think for another reason viz. because the Land is in Lease and the Tenant if any ought to do the Office Take the Writ Lucy Lutterell vid. versus George Reynell Esq George Turbervile Esq John Cory Ann Cory THe Plaintiff as Administratrix to Jane Lutterell durante minori aetate of Alexander Lutterell the Plaintiffs second Son declared against the Defendants in an Action of Trespass for that they simul cum John Chappell c. did take away 4000 l. of the moneys numbred of the said Jane upon the 20th day of October 1680. and so for seven days following the like sums ad damnum of 32000 l. Upon a full hearing of Witnesses on both sides the Iury found two of the Defendants guilty and gave 6000 l. damages and the others not guilty A new Trial was afterwards moved for and denied At the Trial Mr. Attorney General excepted against the Evidence that if it were true it destroyed the Plaintiffs Action inasmuch as it amounted to prove the Defendants guilty of Felony and that the Law will not suffer a man to smooth a Felony and bring Trespass for that which is a king of Robbery Indeed said he if they had been acquitted or found guilty of the Felony the Action would lye and therefore it may be maintained against Mrs. Cory who was as likewise was William Maynard acquitted upon an Indictment of Felony for this matter but not against the rest But my Lord Chief Baron declared and it was agreed that it should not lye in the mouth of the party to say that himself was a Thief and therefore not guilty of the Trespass But perhaps if it had appeared upon the Declaration the Defendant ought to have been discharged of the Trespass Quaere what the Law would be if it appeared upon the pleading or were found by special Verdict My Lord Ch. Baron did also declare and it was agréed that whereas W. Maynard one of the Witnesses for the Plaintiff was guilty as appeared by his own Evidence together with the Defendants but was left out of the Declaration that he might be a Witness for the Plaintiff that he was a good and legal Witness but his credit was lessened by it for that he swore in his own discharge For that when these Defendants should be convicted and have satisfied the Condemnation he might plead the same in Bar of an Action brought against himself But those in the simul cum were no Witnesses Several witnesses were received and allowed to prove that William Maynard did at several times discourse and declare the same things and to the like purpose that he testified now And my Lord Chief Baron said though a hear-say was not to be allowed as a direct Evidence yet it might be made use of to this purpose viz. to prove that William Maynard was constant to himself whereby his Testimony was Corroborated One Thorne formerly Mr. Reynell's Servant being Subpoened by the Plaintiff to give Evidence at this trial did not appear But it being sworn by the Exeter Waggoner that Thorne came so far on his Iourney hitherward as Blandford and there fell so sick that he was not able to travel any further his Depositions in Chancery in a Suit there between these parties about this matter were admitted to be read
Martij prox sequentem the money is payable the same month 112 V. Tit. Survivor The Condition of a Bond runs thus viz. That if the Obligee shall within six months after his Mothers death settle upon the Obligor an Annuity of 20 l. per annum during life if he require the same or if he shall not grant the same if then he shall pay to the Obligor 300 l. within the time aforementioned then the Obligation to be void is this a disjunctive Condition or not 264 265 c. Words allowed to be part of the Condition of a Bond though following these words then the Obligation to be void 274 275 Consideration V. Action upon the Case V. Etiam 284 Constable Moved to quash an Order made by the Justices of Peace for one to serve as Constable 13 Contingent remainder Supported by a Right of Entry 92 Conventicles To meet in a Conventicle whether a breach of the Peace or no 13 Conusance V. Tit. Vniversity Copy Copy of a Deed given in Evidence because the Original was burnt 4 Copies allow'd in evidence 266 Copyhold Tenant for life of a Copyhold He in the remainder entreth upon the Tenant for life and makes a Surrender nothing passeth 199 Tenant for life of a Copyhold suffers a Recovery as Tenant in Fee-simple this is no forfeiture 199 200 Of all Forfeitures committed by Copyholders the Lord only is to take advantage 200 Coroner V. Enquest Corporation What things can a Corporation do without Deed and what not 18 Costs An Executor is not within the Statute to pay Costs occasione dilationis executionis c. 77 Cottage An Enditement for erecting a Cottage contra formam Statuti quasht because it is not said That it was inhabited 295 Covenant Action of Covenant upon the Warranty in a Fine the Plaintiff assigns his Breach that a stranger habens legale jus titulum did enter c. but does not not say that it was by vertue of an Eigne Title 66 67 101 292 293 Covenant to make such an Assurance as Council shall advise 67 Covenant for quiet Enjoyment 101 A man does assignare transponere all the money that shall be allowed by any Order of a Foreign State does an Action of Covenant lie upon these words or not 113 An Action of Covenant lies against a Woman upon a Covenant in a Fine levied by her when she was a Feme Covert 230 231 V. Ibidem exceptions to the pleading in such Action Covenant to stand seized A man Covenants to stand seiz'd to the use of the Heirs of his own body 98 121 159 V. Limitation d' Estates V. Vses County-Courts V. 171 172 215 249. County-Palatine V. 2. Counterplea of Voucher V. 8. Court of Kings Bench. It s Jurisdiction is not ousted without particular words in an Act of Parliament 45 V. Habeas Corpus Cure of Souls What Ecclesiastical Persons have Cure of Souls and what not 11 12 Cur ' advisare vult During a Cur ' adv vult one of the parties dies how must Judgment be entred 37 Custom Custom of a Mannor for the Homage to chuse every year two Surveyors to destroy corrupt Victuals exposed to sale a good Custom 202 A Custom to be discharged of Tythes of Sheep all the year after in consideration of the payment of full Tythes of all the Sheep they have on Candlemas-day 229 D. Damages EXcessive Damages no good Cause for a new Writ of Enquiry 2 Demand Requisite or not requisite 89 Departure in Pleading V. 43 44 227 289. Depositions V. Tit. Evidence Debt For Rent upon a Lease for years 3 Debt upon a Bond against two Executors they pleaded a Statute acknowledged by the Testator of 1200 li. and no assets ultra c. the Plaintiff replies That one of the Executors was bound together with the Plaintiff in that Statute 165 Devise Of a term for years V. Limitation of Estates By a Devise of all a man's Estate what passeth 100 I give Rees-Farm to my Wife during her natural life and by her to be disposed of to such of my Children as she shall think fit What Estate passeth hereby 189 A man has a Son called Robert Robert has likewise a Son call'd Robert The Grand-Father deviseth Land to his Son call'd Robert and his heirs Robert the Devisee dies living the Father The Devisor makes a new publication of the same Will and declares it to be his intention that Robert the Grand-Child should take the Land per eandem voluntat Does the Grand-Child take or no 267 268 A man deviseth a Rent-Charge to his Wife for her life but that if she marry that then his Executor shall pay her 100 l. and the rent shall cease and return to the Executor she does marry and the Executor does not pay the 100 l. The question is Whether the Rent shall cease before the 100 l. be paid or not 272 273 Distribution Administrators must make Distribution to those of the half-blood as well as to those of the whole 209 Donative V. 11 12 22 90. Double Plea V. 18 227. E. Ecclesiastical persons A Chapter of which there is no Dean is restrain'd by the Statute of 13 Eliz. 204 A Grant of next avoidance restrain'd ibid. Such Grant void ab initio ibid. Ejectione firmae De quatuor molendinis good Of so many Acres jampnor ' bruere without saying how many of each good 90 The Plaintiff in Ejectment dies before Judgment 252 Entry to deliver a Declaration in Ejectione firmae shall not work to avoid a Fine 10 Error A Writ of Error will lie in the Exchequer-Chamber upon a Judgment in a Scire facias grounded upon a Judgment in one of the Actions mentioned in 27 Eliz. 79 It shall not be assign'd for Error of Judgment in an inferior Court that the matter arose out the Jurisdiction but it must be pleaded 81 Escape V. 116. A Trial at Bar upon an Escape In an Action for an Escape the Defendant pleads That he let the Prisoner to bail according to the Stat. of 23 H. 6. cap. 10. and that he had taken reasonable Sureties of persons having sufficicient c. The Plaintiff replies and traverseth the sufficiency of the Sureties 227 Estoppel By the condition of a Bond. 113 Exchange of Lands Two women seized one of one Acre and another of another and they make an exchange then one of them marries before entry shall that defeat the exchange 91 Excise The Statute for Excise prohibits the bringing of a Certiorari but not Habeas Corpus 103 Executors V. Costs V. Appearance In what order Executors are to pay Debts c. 174 175 Executor dur ' minor ' aetate 174 175 An Executor must entitle himself to the Executorship to enable him to retain for his own debt 208 An Executors refusal before the Ordinary after Administration is a void act 213 Action of Debt against an Executor the Defendant pleads That the Testator made a Will but did not make him Executor therein that he
in the Mannor 232 R. Recovery sc Common Recovery VIde Gardian Whether can an Infant that suffers a Common Recovery reverse it when he comes of age 49 What shall be bar'd by a Common Recovery and what not 108 109 c. A Common Recovery suffered of Lands in Shrewsbury and the Liberties thereof good to pass Lands in the Liberties of Shrewsbury though lying out of the Town of Shrewsbury 206 The pleading of a Common Recovery V. 218 219 There are two Parishes adjoyning Rippon and Kirby-Marstone and within those two Parishes are two Towns of the same names A man has Lands within the Parishes but not within those Towns and suffers a recovery of Lands in Rippon and Kirby-Marstone generally but the Deed to lead the Uses mentions the Lands as lying in the Parishes of Rippon and Kirby-Marstone 250 c. Recusance and Recusancy An Information for not coming to Church may be brought upon the Stat. of 23 Eliz. reciting the clause in it that refers to 1 Eliz. 191 To an Endictment for Recusancy Conformity is a good Plea but not to an Action of Debt 213 Reddendo singula singulis V. 33. Release A man makes a Release of all Demands and Titles quid operatur 99 100 Reparations of Churches Parishioners how compellable to repair their Parish-Church 194 236 237 The greater part of the Parish shall conclude the Lesser for enlarging the Church as well as repairing it 236 237 The Chancel of a Parish-Church whereof the Rectory is Impropriate is out of repair Whether can the Ordinary sequester the Tythes 258 259 c. Request An Action for keeping a passage stopt up so that the Plaintiff could not come to cleanse his gutter ought the Plaintiff to lay a Request 27 Reservation A Heriot or 40 s. reserved to the Lessor and his Assigns at the Election of the Lessor his Heirs and Assigns yet cannot the Devisee of the Lessor have either the Heriot or 40 s. 216 217 Return false Return Action upon the Case against a Sheriff for that he arrested such a one at the Plaintiffs Suit and suffered him to go at large and at the day of the return of the Writ returned that he had his body ready The Defendant demurs generally 57 In a like Action the Defendant pleads the Stat. of 23 H. 6. cap. 10. and adjudged against the Plaintiff 239 240 V. Action upon the Case Robbery An Action lies against the Hundred upon the Statute of Winchester though the Robbery were not committed in the High-way 221 S. Scandalum Magnatum MY Lord _____ is an unworthy person and does things against Law and Reason Actionable 232 233 c. Scire Facias Scire facias upon a Recognizance in Chancery there is a demurrer to part and issue upon part Judgment must be given in the Court of Kings Bench upon the whole Record 29 Scias facias against Executors to have execution of a Judgment obtained against their Testator they plead That a Ca. Sa. issued against him upon which he was taken and that he paid the money to the Warden of the Fleet who suffered him to go at large This held to be no plea. 194 Seal Whether does the Seals being broken off invalidate a Deed c. given in Evidence 11 Seisin of an Office What shall be a Seisin of an Office and what not 122 123 Serjeants at Law What Serjeants Rings ought to weigh 9 Priviledge of Serjeants 226 Statute-Merchant and Staple V. Administrators Summons V. 197. Supersedeas The very sealing a Writ of Error is a Supersedeas to the Execution 28 The Stat. of 13 Eliz. cap. 9. where it is said there shall be no Supersedeas c. hath no reference to the Court of Kings Bench but only to the Chancery 45 A Writ of Error in Parliament in what Cases is it a Supersedeas and in what Cases not 106 285 V. 112 Whether is a Sheriff obliged at his years end to deliver a Writ of Supersedeas over to the new Sheriff 222 Survivor The Condition of a Bond is That if the Obligor shall pay yearly a sum of money to two strangers during their two lives that then c. Resolved that the payment is to cease upon the death of either of them 187 T. Tenant in Common TEnant in Common sues without his Companion 102 Tender and Refusal Where ever Payment will do Tender and Refusal will do 77 78 Toll Toll-thorough 47 48 V. Prescription Toll-thorough and Toll-traverse 231 232 Trespass Justification in Trespass 75 Whether does an Action of Trespass lie for immoderately riding a lent Mare 210 In an Action of Trespass it appears upon Evidence that the Fact if true was Felony yet does not this Evidence destroy the Plaintiffs Action Otherwise if it had appear'd upon the Declaration 282 283 Trover and Conversion A Sheriff may have an Action of Trover and Conversion for Goods taken by himself in Execution upon a Fieri facias 30 31 Trover and Conversion decem paririum tegularum valorum Angl. of ten pair of Curtains and Vallance held good 46 47 V. 135 136 c. many Cases of Trover and Conversion and of pleading in that Action Trover and Conversion de tribus struibus foeni 289 290 Trial. Motion for a new Trial. 2 An Action of Covenant is laid at York issue is joyn'd upon a matter in Barwick where shall the Trial be 36 37 c. Tythes Turfe Gravel and Chalk not tythable 35 If the Endowment of the Vicarage be lost small Tythes must be paid according to Prescription 50 Tythes of Cattel feeding in a Common where the Parish is not certainly known 216 A modus to the Rector is a good Discharge against the Vicar ibid. A Parson shall not have Tythe both of Corn and of Sheep taken in pro melioratione agriculturae infra terras arabiles c. ibid. V. tit Custom V. Venire Facias A Venire Facias returnable coram nobis apud Westm held good 81 Venue A Venue refused to be changed because the Plaintiff was a Counsellor at Law 64 Verdict When a Declaration will bear two Constructions and one will make it good and the other bad the Court after a Verdict will take it in the better sense 42 43 Matters helpt after Verdict 70 74 75 V. tit Jeofails View A Jury never ordered to View before their appearance but in an Assize 41 Ville What makes a Ville in Law 78 117 118 Visitation of Churches What Ecclesiastical Persons are visitable and what not 11 12 Vniversity Indebitat assumpsit against a Colledge in Oxford the Chancellor of the University demands Conusance whether is his Cause within the Priviledge of the University or not 163 164 Voluntary Conveyance What shall be said to be a Voluntary Conveyance within the Statute of Bankrupts and what not 76 Voucher A Tenant in an Assize avoucheth out of the line is it peremptory or not 7 8 Vses V. Covenant to stand seised V. 175 176 c. A man granted a Rent to one to the use of another and Covenants with the Grantee to pay the Rent to him to the use of the Cestuy que use The Grantee brings an Action of Covenant 223 Whether is the reservation of a Pepper-Corn a sufficient Consideration to raise an Use or not 262 263 Vsury V. 69. W. Wages IF a Mariner or Ship-Carpenter run away he looseth his Wages due 93 Warrant of Attorney Judgment enter'd of another Term than is expressed in the Warrant of Atturney 1 Warranty Feme Tenant in tail remainder to her Sisters in Fee the Tenant in tail and her Husband levy a Fine to the use of them two and the Heirs of the body of the Wife the remainder to the right Heirs of the Husband with Warranty against them and the Heirs of the Wife The Wife dies without issue 181 He that comes to Land by the limitation of an Use may rebut 192 193 Waste What is Waste and what not 94 95 Will. A Will drawn in the form of a Deed. 117 Whether must the Will of a Feme Covert be proved 211 The pleading of a Will of Land 217 Witnesses Who are good Witnesses and who are not 21 73 74 107 283 FINIS