day of Appearance he is to see that he appear at the day either by keeping of him in Custody or letting of him to Bail the end of the Arrest is to have his Body here If he had not been bailed then he had still remained in Custody and the Plaintiff would have his proper remedy but being once let to Bail and not appearing in Court according to the Condition of the Bond that seems to be the fault of the Defendant who had his Body before the day of Appearance Iudgment for the Defendant DE Term. Sancti Hill Anno 1 Jac. II. in Banco Regis 1685. Serjeant Hampson's Case BY the Statute of Queen Elizabeth 't is Enacted 5 Eliz. c. 23. That if the person excommunicated have not a sufficient Addition or if 't is not contained in the Significavit that the Excommunication proceeds for some cause or contempt or of some original Matter of Heresie refusing to have his Child baptized to receive the Sacrament to come to Divine Service or Errors in Matters of Religion or Doctrine Incontinency Usury Simony Perjury in the Ecclesiastical Court or Idolatry he shall not incurr the Penalties in the Act. Serjeant Hampson was excommunicated for Alimony and now Mr. Girdler moved that he might be discharged because none of the aforesaid Causes were contained in the Significavit Curia He may be discharged of the Forfeiture for that reason but not of the Excommunication Anonymus ONE who was outlawed for the Murder of Sir Edmund Bury Godfrey now brought a Writ of Error in his Hand to the Bar praying that it might be read and allowed It was read by Mr. Astry Clerk of the Crown The Errors assigned were viz. That it did not appear upon the Return of the Exigent in the first Exact ' that the Court was held pro Comitatu That the Outlawry being against him and two other persons 't is said in the last Exact ' that Non comperuit but doth not say nec eorum aliquis comperuit For these Reasons the Outlawry was reversed and he held up his Hand at the Barr and pleaded Not-guilty to his Indictment and was admitted to Bail and afterwards he was brought to his Trial and no Witness in behalf of the King appearing against him he was acquitted The Mayor and Commonalty of Norwich versus Johnson A Writ of Error was brought to reverse a Iudgment given for the Plaintiff in the Common-Pleas in an Action of Waste Waste lies against an Executor de son tort of a Term. The Declaration was that the Plaintiff demised a Barn to one Took for a certain Term by vertue whereof he was possessed and being so possessed died that the Defendant was his Executor who entred and made Waste by pulling down of the said Barn The Defendant pleaded that Took died intestate and that he did not administer The Plaintiff replyed that he entred as Executor of his own Wrong and to this Plea the Defendant demurred and the Plaintiff joined in the Demurrer This Case was argued by Mr. Appleton of Lincolns-Inn for the Plaintiff who said That an Action of Waste would not lie against the Defendant because the Mayor and Commonalty c. had a remedy by an Assise to recover the Land upon which the Barn stood and a Trover to recover the Goods or Materials and that such an Action would not lie against him at the Common Law because he neither was Tenant by the Curtesie nor in Dower against whom Waste only lay So that if the Plaintiff is entituled to this Action it must be by vertue of the Statute of Gloucester 6 Ed. 1. c. 5. but it will not lie against the Defendant even by that Statute because the Action is thereby given against the Tenant by the Curtesie in Dower for Life or Years and treble Damages c. But the Defendant is neither of those and this being a penal Law which not only gives treble damages but likewise the Recovery of the place wasted ought therefore not to be taken strictly but according to Equity Tenants at sufferance or at Will by Elegit or Tenants by Statute Staple 11 H. 6. c. 5. and also Pernors of Profits were never construed to be within this Statute and therefore a particular Act was made to give him in Reversion an Action of Waste where Tenant for life or years had granted over their Estates and yet took the Profits and committed Waste Then the Question will be Co. Lit. 371. what Estate this Executor de sontort hath gained by his Entry And as to that he argued that he had got a Fee-simple by Disseisin and that for this reason the Plaintiff was barred from this Action for if the Son purchase Lands in Fee and is disseised by his Father who maketh a Feoffment in Fee to another with Warranty and dieth the Son is for ever barred for though the Disseisin was not done with any intention to make such a Feoffment 1 Roll. Abr. 662. yet he is bound by this Alienation So where a man made a Lease for life and died and then his Heir suffered a Recovery of the same Land without making an actual Entry this is an absolute Disseisin because the Lessee had an Estate for life but if he had been Tenant at Will it might be otherwise But admitting that the Defendant is not a Disseisor then the Plaintiffs must bring their Case to be within the Statute of Gloucester as that he is either Tenant for life or years If he is Tenant for Life he must be so either by right or by wrong He cannot be so by right because he had no lawful Conveyance made to him of this Estate besides 't is quite contrary to the Pleading which is that he entred wrongfully Neither can he be so by wrong for such particular Estates 6 Co. 25. as for life or years cannot be gained by Disseisin and so is Heliar's Case in 6 Co. Then if this should be construed an Estate for years it must be gained either by the Act of the Party or by the Act of the Law but such an Estate cannot be gained by either of those means First it cannot be gained by the Act of the Party Moor 126. Kendrick versus Burges because an Executor de son tort cannot have any interest in a Term and for this there is an express Authority in this Court which was thus viz. A Lease in Reversion for years was granted to a man who died intestate his Wife before she had administred sold this Term to the Defendant and afterwards she obtained Letters of Administration and made a Conveiance of the same Term to the Plaintiff and Iudgment was given for the last Vendee because it was in the case of a Reversion of a Term for years upon which no Entry could be made and of which there could be no Executor de son tort though it was admitted by the Court that such an Executor might make a good sale of
Intratur Trin. 1 W. M. Rot. 249. THis was a Trial at the Bar A Will shall not be revoked by a subsequent Writing unless that be also a good Will by a Wiltshire Iury in an Ejectment brought by the Plaintiffs as Heirs at Law to Ann Speke who died seized in Fee of the Lands in Question Vpon not Guilty pleaded this Question did arise at the Trial Whether the Answer of a Guardian in Chancery shall be read as Evidence in this Court to conclude the Infant There being some Opinions that it ought to be read and the Defendants Council insisting on the contrary Mr Iustice Eyres being the Puisne Iustice was sent to the Court of Common-Pleas then sitting to know their Opinions who returning made this Report That the Judges of that Court were all of Opinion that such Answer ought not to be read as Evidence for it was only to bring the Infant into Court and to make him a Party Then the Plaintiffs proceeded to prove their Title as Heirs at Law viz. by several Inquisitions which were brought into Court and by the Heralds Office The Defendants Title likewise was thus proved viz. That the Lady Speke being seised in Fee c. did by Will dated in March 1682. devise the Lands to John Petit for Life Remainder to the Defendant and his Heirs for ever That the Lady Speke died so seised that John Speke the Tenant for Life and Father to the Defendant was also dead c. This Will was proved by several Witnesses one of which likewise deposed that my Lady Speke made two other Wills subsequent to this now produced and a Minister prov'd that she burnt a Will in the Month of December which was in the year 1685. Then the Plaintiffs produced another Will made by her at Christmas 1685. attested by three Witnesses but not in the presence of my Lady so that though it might not be a good Will to dispose the Estate yet the Council insisted that it was a good Revocation of the other for 't is a Writing sufficient for that purpose within the sixth Paragraph of the Statute of Frauds The Case of Sir George Sheers was now mentioned whose Will was carried out of the Chamber where he then was into a Lobby and signed there by the Witnesses but one of them swore that there was a Window out of that Room to his Chamber through which the Testator might see the Witnesses as he lay in his Bed Vpon which Evidence the Iury found this special Verdict viz. That Ann Speke being seised in Fee c. did on the 12th day of March 1682. make her Will and devised the Lands to John Pettit for Life and afterwards to George his Son and to his Heirs for ever upon condition that he take upon him the Name of Speke That the 25th of December 1685. she caused another Writing to be made purporting her Will which was signed sealed and published by her in the presence of three Witnesses in the Chamber where she then was and where she continued whilst the Witnesses subscribed their Names in the Hall but that she could not see them so subscribing They find that the Lessors of the Plaintiff are Heirs at Law and that they did enter c. This matter was argued in Easter Term following and the Question was whether this Writing purporting a Will was a Revocation of the former or not and that depended upon the Construction of the sixth Paragraph in the Act of Frauds viz. All Devises of Lands shall be in Writing and signed by the party or some other in his presence and by his express Directions and shall be attested by three or four Witnesses c. and that such devise shall not be revocable but by some other Will or Codicil in Writing or other Writing c. declaring the same Now the want of Witnesses doth not make the last Will void in it self but only quoad the Lands therein devised it hath its operation as to all other purposes It must therefore be a Revocation of the former and this is agreeable to the Resolution of the Iudges in former times for there being nothing in the Statute of Wills which directs what shall be a Revocation 32 H. 8. cap. 1. Dyer 143. the Iudges in Trevilian's Case did declare that it might be by word of mouth or by the very intention of the Testator to alter any thing in the Will for before the late Statute very few words did amount to a Revocation Moor 429. 1 Roll. Abr. 614 615 616. If Lands are devised and afterwards a feoffment is made of the same but for want of Livery and Seisin 't is defective yet this is a Revocation of the Will though the Feoffment is void The Council on the other side argued that this Will was not void by any Clause in the Statute of Frauds E contra for if this is a Revocation within that Statute then this second Writing purporting a Will must be a good Will for if 't is not a good Will then 't is not a good Revocation within that Law No Man will affirm that the latter Writing is a good Will therefore the first being a Devise of Land cannot be revoked but by a Will of Land which the second is not This Statute was intended to remedy the mischief of parol Revocations and therefore made such a solemnity requisite to a Revocation It cannot be denied but that this latter Writing was intended to be made a Will but it wanting that perfection which is required by Law it shall not now be intended a Writing distinct from a Will so as to make a Revocation within the meaning of that Act. If a Man hath a power of Revocation either by Will or Deed and he makes his Will in order to Revoke a former this is a Writing presently but 't is not a Revocation as long as the person is living Therefore a Revocation must not only be by a Writing but it must be such a Writing which declares the intention of a Man that it should be so which is not done by this Writing Vpon the first Argument Iudgment was given for the Defendant that the second Will must be a good Will in all Circumstances to Revoke a former Will Cross versus Garnet THE Plaintiff declared that on such a day and year there was a discourse between him and the Defendant concerning the Sale of two Oxen then in the possession of the Defendant and that they came to an agreement for the same that the Defendant did then sell the said Oxen to the Plaintiff and did falsly affirm them to be his own ubi revera they were the Oxen of another Man The Plaintiff had a Verdict Cro. Eliz. 44. 1 Rol. Rep. 275. 2 Cro. 474 1 Roll. Abr. 91. More 126. Yel 20. Sid. 146. and Serjeant Thompson moved in arrest of Iudgment that the Declaration was not good because the Plaintiff hath not alledged that the Defendant did affirm the
Mony for putting them out which must be to such who are willing to to take them for Mony 270 Arbitrament To pay 5 l. presently and give Bond to pay 10 l. more on a day following and now to sign general Releases it shall only discharge such matters which were then depending at the time of the submission and not the Bond 264 2. A person who was a Stranger to the Submission was awarded to be a Surety 't is void 272 3. Submission was so as the Award be made c. ready to be delivered to the Parties or to such of them who shall desire it the Defendant must desire the Award and plead the matter specially and the Plaintiff need not aver that it was ready to be delivered 330 Assent See Agreement Assets Reversion in Fee Expectant upon an Estate Tail is not Assets but when it comes into possession then and not before 't is Assets 257 Assignment See Privity of Contract 2. Executor of a Lessee for years shall be liable to an Action of Debt for Rent incurr'd after an assignment of the Term for the privity of Contract of the Testator is not determined by his Death but his Executor shall be charged with his Contracts so long as he hath Assets 326 Assizes The Method of arraigning an Assize the Title must be set forth in it 273 Attornment See Bargain and Sale Ejectment of a Manor parcel in Rents and parcel in Services the Attornment of the Tenants must be proved 36 Averment See Devise 4 The consideration of a Duty ought to be precisely alledged as in an Action on the Case for a Duty to be paid for weighing Goods it must be averred that the Goods were such which are usually sold by weight 162 2. The nature of an Averment is to reduce a thing to a certainty which was incertain before 216 3. Where it may be made against the express words of a Condition 217 4. Not allowed to be made against a Record 305 B. Bail IT was demised in a Scandalum Magnatum 4 2. Writ of Error pending in the Exchequer-Chamber the principal in the Action rendred himself the Bail are discharged 87 3. Scire Facias against Bail upon a Writ of Error who plead that the Principal rendred himself before Judgment 't is not good for the Bail are liable not only to render the Body but to pay the Debt ibid. 4. Proceedings were staied by Injunction above two Terms after the Bail was put in and before the Declaration delivered which was pleaded to a Scire Facias brought against them but held not good 274 Bankrupts An Inn-keeper is not within the Statutes of Bankrupcy 327 2. 'T is not actionable to call a Man Bankrupt unless it be laid that he was a Trader at the time of the words spoken 329 3. Inn-keeper buys and sells under a Restraint of Justices and Stewards of Leets which though for a Livelihood yet cannot be a Bankrupt 329 4. Whether a Farmer or Master of a Boarding-School be within the Statutes 330 Baretry Difference between Baretry and Maintenance 97 2. 'T is not Baretry to arrest a Man without a cause ibid. 4. If one design to oppress and to recover his own right 't is Baretry 98 5. Mony may be laid out to recover the just right of a poor man and no Baretry ibid. 6. But mony may not be expended to promote and stir up Suits ibid. Barbadoes It was gotten by Conquest and therefore to be governed by what Law the King willeth 161 Bargain and Sale What words by construction of Law shall amount to a Bargain and Sale to make the Reversion pass with the Rent without Attornment 237 Baron and Feme See Slander 7 Administrator 9 11 Sci. Fa. 7 1. Whether Sci. Fa. will lie against the Husband alone after the death of the Wife upon a Judgment had against her Dum sola 186 2. If a Judgment is recovered against her while sole then she marries and dies the Husband is not chargeable unless had likewise against him during the Coverture ibid. 3. A Debt is due to her whilst sole she marries and dies before 't is recovered it shall not go to the Husband by virtue of the marriage but he may have it as Administrator to his Wife ibid. 4. Judgment is obtained against her whilst sole she marries and a Sci. Fa. is brought against Husband and Wife and Judgment quod habeat executionem the Wife dies a Scire Fa. may be brought against the Husband alone 189 5. The Recovery upon a Sci. fa. is against both and is therefore joynt against both 188 6. Husband may have Execution of a Judgment recovered by him and his Wife after the Death of his Wife without a Sci. fa. 189 7. Devastavit against both the Wife being an Executrix and Judgment that the Plaintiff have Execution de bonis propriis the Wife dies the Goods of the Husband are liable ibid. 8. A Woman who had a Term for years married the Rent is arrear she died the Husband shall be liable because by the Marriage he is entituled to the Profits of the Land ibid. 9. Feme Covert Copy-holder her Husband made a Lease for years without Licence of the Lord 't is a Forfeiture during the Coverture 222 9. Feme Covert Heir to a Copyhold Estate her Husband after three Proclamations will not be admitted 't is a Forfeiture during Coverture 226 10. The Husband hath a Lease in Right of his Wife who was an Executrix and he grnats all his Right and title therein the Right which he had by his Wife passeth 278 12. A. Feme Sole had a Lease and Married then Husband and Wife Surrender in consideration of a new Lease to be granted to the Wife and to her Sons the Estate vests immediately in her without the assent of her Husband for the Law intends it her Estate till he dissassent 300 13. Feme Covert and another joint-Tenant for Life she and the Husband Lease their Moiety reserving a Rent during Life and the Life of her Partner the Wife died 't is a good Lease against the Surviving joint-joint-Tenant till disagreement 300 14. The Husband made a Feoffment in Fee to the use of himself and Wife and to the Heirs of the Survivor he afterwards made another Feoffment of the same Lands and died the Wife entred but the Fee was not vested in her by the first Conveyance because the contingent right was destroyed by the last 310 Barr. Recovery in a personal Action is a Barr to an Action of the like nature where the same Evidence supporteth both Actions 2 Judgment in Trespass is no Barr to an Action of Detinue 2 Bill of Exchange The Drawer and Endorsers are all liable to payment but if Recovery be against one 't is a good Bar to an Action which may be brought against the rest 86 By-Law See Corporation 12. Trade 8. Where 't is too general and where not 193 C. Carrier See Pleading 11. Certainty See Custom Grants Certiorari
which he claims he ought to shew the other Will by which it must appear that nothing is contradictory to it or that it doth confirm the first but if Presumptions shall be admitted it must be in favour of the Heir for nothing shall be presumed to disinherit him Afterwards in Trinity-Term 5 Willielmi Iudgment was given for the Plaintiff and a Writ of Error was brought in the House of Peers to reverse that Iudgment but it was affirmed Anonymus A Writ of Error was brought to reverse a Iudgment in the Common Pleas in an Ejectment for Lands in the County of Essex in which a Special Verdict was found viz. That R. F. What Words in a Will make Tenants in Common was seized in Fee of the Lands in question who had Issue two Daughters Frances Jane Frances had Issue Philp Frances Anne R. F. the Father devised unto Philip Frances and Anne the Children of his Daughter Frances and to Jane his other Daughter the Rents and Profits of his Mannor of Spain for thirty years to hold by equal parts viz. the three Grandchildren to have one Moiety and his Daughter Jane the other Moiety And if it happen that either of them should die before the thirty years expired then the said Term should be for the benefit of the Survivor and if they all die then the same was devised over to other Relations Afterwards he made a Codicil in these words viz. I give Power and Authority to my Executors to let my whole Lands for the Term of thirty years for the benefit and behalf of my Children Anne one of the Granchildren died without Issue Frances another of the Grandchildren died but left Issue The first Question was whether the Power given to the Executors by the Codicil will take away that Interest which was vested in the Grandchildren by the Will Mr. Appleton argued that it would not because the Executors had only a bare Authority to let it or improve it for the benefit of the Children there was no Devise of the Land to them If Power be given to Executors to sell Lands 't is only an Authority and not an Interest in them but a bare Authority only to let is of much less importance 2. After the Testator had devised the Profits of these Lands to his Grandchildren and Daughter equally to be divided during the term and had provided that if any dye without Issue that then it should survive and if all dye then to remain over to collateral Relations c. Whether Frances being dead but leaving Issue her Interest shall survive to Philip or go to such her Issue As to that he held that the Testator made them Tenants in Common by equal parts and therefore he devised it by Moieties in which there can be no Survivorship 'T is like a Devise to the Wife for life 2 Cro. 448. 1 Roll. Abr. 833. King versus Rumbal Cro. Car. 185. and after her decease to his three Daughters equally to be divided and if any of them die before the other then the Survivors to be her Heirs equally to be divided and if they all die without Issue then to others c. the Daughters had an Estate Tail and there was no Survivorship So in this Case it shall never go to the third Grandchild as long as any Issue of the second are living On the other side it was argued that they are Ioyntenants and not Tenants in Common E contra for the Testator having devised one Moiety to his three Grandchildren joyntly by equal parts that will make them Ioyntenants But the Court were all of Opinion that the words in the Will shew them to be Tenants in Common for equally to be divided runs to the Moieties So the Iudgment was affirmed Woodward 's Case THE Statute of 23 H. 8. c. 9. Church Ornaments are a personal Charge upon the Inhabitants and not upon those who live else where though they occupy Lands in that Parish Godb. 134. pl. 4. 152. pl. 29. 154. pl. prohibites a Citation out of the Diocess wherein the Party dwelleth except in certain Cases therein mentioned one whereof is viz. Except for any Spiritual Cause neglected to be done within the Diocess whereunto the Party shall be lawfully cited One Woodward and others who lived in the Diocess of Litchfield and Coventry but occupied Lands in the Diocess of Peterborough were taxed by the Parishioners where they used those Lands for the Bells of the Church and they refusing to pay this Tax a Suit was commenced against them in the Bishop of Peterborough's Court who thereupon suggested this Matter and prayed a Prohibition because they were not to be charged with this Tax it being only for Church Ornaments And a Prohibition was granted the reason given was because 't is a personal charge to which the Inhabitants only are liable and not those who only occupy in that Parish and live in another but the repairing of the Church is a real Charge upon the Land let the Owner live where he will DE Term. Sanct. Trin. Anno 4 Jac. II. in Banco Regis 1688. Wright Chief Justice Holloway Justices Powel Justices Allibon Justices The Bishop 's Case Friday June 15th THE King having set forth a Declaration for Liberty of Conscience did on the 4th day of May last by Order of Council enjoyn that the same should be read twice in all Churches c. and that the Bishops should distribute it through their respective Diocesses that it might be read accordingly The Archbishop of Canterbury who then was together with six other Bishops petitioned the King setting forth that this Declaration was founded upon a dispensing Power which had been declared illegal in Parliament and therefore they could not in Honour or Conscience make themselves Parties to the Distribution and Publication of this Declaration who thereupon were summoned before the King in Council and refusing there to give Recognizance to appear before the Court of Kings Bench they were committed to the Tower by Warrant of the Council-Board The Attorney General moved for a Habeas Corpus retornable immediate and the same Morning in which that Motion was made Sir Edward Hales Lieutenant of the Tower returned the same and they were all brought into the Court. The Substance of the Return was viz. That they were committed to his Custody by Warrant under the Hands and Seals of the Lord Chanchellor Jefferies and also naming more of the Lords of the Privy-Council Dominos Concilij for contriving making and publishing a Seditious Libel against the King c. Then it was prayed that the Return might be filed and that the Information which was then exhibited against them for this Crime might be read and that they might all plead instanter Serjeant Pemberton Mr. Finch and Mr. Pollexfen oppsed the reading of it and moved that the Bishops might be discharged because they were not legally before the Court for it appears upon the Return that there is no lawful cause of
c. yet one Commoner may bring an Action against his Fellow besides in this Case they are not Tenants in Common for every Man is seized severally of his Freehold Adjornatur Ayres versus Huntington AScire Facias was brought upon a Recognizance of 1000 l. Amendment of the word Recuperatio for Recognitio after a Demurrer to shew cause quare the Plaintiff should not have Execution de praedictis mille libris recognitis juxta formam Recuperationis where it should have been Recognitionis praed And upon a Demurrer it was held that the words juxta formam Recuperationis were Surplusage The Record was amended and a Rule that the Defendant should plead over Mather and others versus Mills THE Defendant entred into a Bond to acquir Non damnificatus generally where 't is a good Plea discharge and save harmless a Parish from a Bastard Child Debt was brought upon this Bond and upon Non damnificatus generally pleaded the Plaintiff demurred and Tremain held the Demurrer to be good for if the Condition had been only to save harmless c. then the Plea had been good but 't is likewise to acquit and discharge c. and in such Case Non damnificatus generally is no good Plea 1 Leon. 71. because he should have shewed how he did acquit and discharge the Parish and not answer the Damnification only E contra E contra 2 Co. 3. 2 Cro. 363 364 2 Sand. 83 84. It was argued that if the Defendnat had pleaded that he kept harmless and discharged the Parish such Plea had not been good unless he had shewed how c. because 't is in the affirmative but here 't is in the negative viz. that the Parish was not dampnified and they should have shewed a Breach for though in strictness this Plea doth not answer the Condition of the Bond yet it doth not appear upon the whole Record that the Plaintiff was dampnified and if so then he hath no cause of Action Iudgment for the Defendant DE Term. Sanctae Trin. Anno 1 Gulielmi Mariae Regis Reginae in Banco Regis 1689. Memorandum That on the 4th day of November last past the Prince of Orange landed here with an Army and by reason of the Abdication of the Government by King James and the Posture of Affairs there was no Hillary-Term kept Coram Johanne Holt Mil ' Capital ' Justic Gulielmo Dolben Mil ' Justiciar Gulielmo Gregory Mil ' Justiciar Egidio Eyre Mil ' Justiciar Kellow versus Rowden Trin. 1 Willielmi Mariae Rotulo 796. IN Debt by Walter Kellow Where the Reversion in Fee is expectant upon an Estate Tail and that being spent it descends upon a collateral Heir he must be sued as Heir to him who was last actually seized of the Fee without naming the intermediate Remainders Executor of Edward Kellow against Richard Rowden The Case was this viz. John Rowden had Issue two Sons John and Richard John the Father being seized in Fee of Lands c. made a Settlement to the use of himself for Life the Remainder to John his eldest Son in Tail Male the Remainder to his own right Heirs The Father died the Reversion descended to John the Son who also died leaving Issue John his Son who died without Issue so that the Estate Tail was spent Richard the second Son of John the elder entred and an Action of Debt was brought against him as Son and Heir of John the Father upon a Bond of 120 l. entred into by his Father and this Action was brought against him without naming the intermediate Heirs viz. his Brother and Nephew The Defendant pleaded Quod ipse de debito praed ut filius haeres praed Johannis Rowden Patris sui virtute scripti obligatorii praed onerari non debet quia protestando quod scriptum obligatorium praed non est factum praed Johannis Rowden pro placito idem Richardus dicit quod ipse non habet aliquas terras seu tenementa per discensum haereditarium de praed Johanne Rowden patre suo in feodo simplici nec habuit die exhibitionis billae praed Walteri praed nec unquam postea hoc parat est ' verificare unde pet judicium si ipse ut filius haeres praed Johannis Rowden patris sui virtute scripti praed onerari debeat c. The Plaintiff replied that the Defendant die Exhibitionis billae praed habuit diversas terras tenementa per discensum haereditarium a praed Johanne Rowden patre suo in feodo simplici c. Vpon this pleading they were at Issue at the Assises in Wiltshire and the Iury found a special Verdict viz. that John Rowden the Father of Richard now the Defendant was seized in Fee of a Messuage and 20 Acres of Land in Bramshaw in the said County and being so seised had Issue John Rowden his eldest Son and the Defendant Richard that on the 22th of Januarii 18 Car. I. John the elder did settle the Premisses upon himself for Life Remainder ut supra c. That after the death of the Father John his eldest Son entred and was possessed in Fee-Tail and was likewise entituled to the Reversion in Fee and died in the 14th year of King Charles the II. that the Lands did descend to another John his only Son who died 35th Car. II. without Issue whereupon the Lands descended to the Defendant as Heir of the last mentionted John who entred before this Action brought and was seised in Fee c. But whether upon the whole matter the Defendant hath any Lands by by descent from John Rowden in Fee-simple the Iury do not know c. The Council on both sides did agree that this Land was chargable with the Debt but the Question was whether the Issue was found for the Defendant in regard the Plaintiff did not name the intermediate Heirs It was argued that the Defendant ought to be sued as immediate Heir to his Father and not to his Nephew for whoever claims by descent must claim from him who was last actually seised of the Freehold and Inheritance this is the express Doctrine of my Lord Coke in his first Institutes and if so Co. Lit. 11. the Defendant must be charged as he claims Seisin is a material thing in our Law for if I am to make a Title in a real Action I must lay an actual seisin in every Man 8 E. 3.13 Bro. Assise 6. F.N. B. 212. F. 't is so in Formedons in Descender and Remainder in both which you are to run through the whole Pedegree But none can be Filius Haeres but to him who was last actually seised of the Fee-simple and therefore the Brother being Tenant in Tail and his Son the Issue in Tail in this Case they were never seised of the Fee 1 Inst 14. b. for that was expectant upon the Estate Tail which being spent then John the Father was last seised thereof and
ought to be left out and of that Opinion was the Court and therefore a Rule was made that he might discontinue this Action without Costs Mordant versus Thorold Hill 1 2 Gulielmi Rotulo 340. THE Plaintiff brought a Scire Fac. upon a Iudgment The Case was thus Viz. Ann Thorold recovered in Dower against Sir John Thorold in which Action Damages are given by the Statute of Merton 20 H. 3. c. 1. Sir John Thorold brought a Writ of Error in B. R. and the Iudgment was affirmed Then the Plaintiff in Dower brought a Writ of Enquiry for the Damages and married Mr. Mordant and died before that Writ was executed Mr. Mordant takes out Letters of Administration to his Wife and brought a Sci. Fa. upon the Iudgment and the question was whether it would lie This depended upon the construction of the Statute of King Charles the II. which enacts That in all personal Actions 17 Car. 2. c. 8. and real and mixt the death of either party between the Verdict and the Iudgment shall not hereafter be alledged for Error so as such Iudgment be entred within two Terms after such Verdict Serjeant Pemberton insisted that this was a judicial Writ and that the Administrator had a right to it though the Wife died before the Profits were ascertained by the Writ of Enquiry 't is no more than a plain Sci. Fa. upon a Iudgment which an Executor may have and which was never yet denied though this seems to be a Case of the first Impression The Council on the other side argued that 't is true an Executor may have a Scire Facias upon a Iudgment recovered in the life of the Testator by reason only of such Recovery but this Scire Facias is brought for what never was recovered because the Wife died before any thing was vested in her for the Iudgment will stand so as to effect the Lands but not for the Damages Curia When a Statute which gives a remedy for mean Profits is expounded it ought to be according to the Common Law Now where entire Damages are to be recovered and the Demandant dies before a Writ of Enquiry executed the Executor cannot have any remedy by a Scire Facias upon that Iudgment because Damages are no duty till they are assessed Sed adjornatur DE Term. Sanctae Trin. Anno 2 Gulielmi Mariae Regis Reginae in Banco Regis 1690. Shotter versus Friend Vxor ' Hill 2 Willielmi Rot. 39. THE Plaintiff and his Wife declared upon a Prohibition setting forth Proof by one Witness good in the Spiritual Court that John Friend on the 13th of October 22 Car. 2. made his Will by which he bequeathed to Mary Friend 10 l. to be paid to her within two years after his decease and that he made Jane the Wife of the Plaintiff Shotter Executrix and dyed that the said Executrix whilst sole and unmarried paid the said Legacy to Mary Friend who is since dead that Thomas Friend the Husband of the said Mary did after her death demand this Legacy in the Consistory Court of the Bishop of Winton that the Plaintiff pleaded payment and offered to prove it by one single Witness which Proof that Court refused though the Witness was a person without Exception and thereupon Sentence was given there against the Plaintiff which Sentence was now pleaded and upon Demurrer to the Plea The Question was whether upon the whole matter the Defendant should have a Consultation or whether a Prohibition should be granted because the proof by one Witness was denied by that Court. It was argued that the Defendant should not have a Consultation because Matters Testamentary ought to have no more favour than things relating to Tythes in which Cases the Proof by one Witness hath been always held good So 't is in a Release to discharge a Debt which is well proved by a single Testimony and it would be very inconvenient if it should be otherwise for Feoffments and Leases may come in question which must not be rejected because proved by one Witness A Modus decimandi comes up to this Case upon the Suggestion whereof Prohibitions are never denied and the chief reason is because the Spiritual Court will not allow a Modus to be any discharge of Tythes of Kind The Courts of Equity in Westminster-Hall give Relief upon a Proof by one Witness so likewise do the Courts of the Common Law if the Witness is a good and credible person 'T is true a Prohibition shall not go upon a Suggestion that the Ecclesiastical Court will not receive the Testimony of a single Witness If the Question is upon Proof of a Legacy devised or Marriage or not or any other thing which originally doth lie in the Cognizance of that Court but payment or not payment is a matter of Fact triable at the Law and not determinable there if therefore they deny to take the Evidence of a single Witness a Prohibition ought to go 2 Inst 608. 2. The Sentence is no obstacle in this Case because the Plaintiff had no Right to a Prohibition until the Testimony of his Witness was denied and Sentence thereupon given and this is agreeable to what hath been often done in cases of like nature As for instance Cro. Eliz. 88. Moor 907. Prohibitions have been granted where the Proof of a Release of a Legacy by one Witness was denyed So where the Proof of payment of Cythes for Pidgeons was denied upon the like Testimony Cro. Eliz. 666. Moor 413. 2 Rol. Rep. 439. 2 Rol Abr. 300. pl. 9. 299 pl. 14 17. Yelv. 92. Latch 117. 3 Bulst 242. Hutt 22. So where a Suit was for Subtraction of Cythes and the Defendant pleaded that he set them out and offered to prove it by by one Witness but was denied a Prohibition was granted And generally the Books are that if the Spiritual Court refuse such Proof which is allowed at the Common Law they shall be prohibited There is one Case against this Opinion which is that of Roberts in 12 Co. 12 Co. 65. Rep. but it was only a bare Surmise and of little Authority Those who argued on the other side held that a Consultation shall go E contra and that for two Reasons 1. Because a Prohibition is prayed after Sentence 2. Because the Ecclesiastical Court have an original Iurisdiction over all Testamentary things As to the first Point 'T is plain that if that Court proceed contrary to those Rules which are used and practised at the Common Law yet no Prohibition ought to go after Sentence but the proper remedy is an Appeal 2. It cannot be denied but that that Court had Cognizance of the principal matter in this Case which was a Legacy and Payment or not is a thing collateral Now wherever they have a proper Iurisdiction of a Cause both that and all its dependences shall be tried according to their Law which rejects the Proof by a single Witness
3 Willielmi Judicium Iudgment was given for the Defendant absente Dolbin Iustice who was also of the same Opinion It was held that the Custom was well alledged both as to the manner and matter 't is true all Customs must have reasonable beginnings but it would be very difficult to assign a lawful commencement for such a Custom as this is so it would be for the Custom of Gavelkind or Burrough English which are circumscribed to particular places and since 't is sufficient to alledge a Custom by reason of the place where t is used it may be as reasonable in this Case to say that there hath been an ancient Ferry-Boat kept in this place 't is but only an inducement to the Custom which did not consist so much in having a Right to the Passage as to be discharged of Toll This might have a lawful beginning either by a Grant of the Lord to the Ancestors of the Defendant or by the agreement of the Inhabitants A Custom alledged for all the Occupiers of a Close in such a Parish to have a Foot-way Cro. Car. 419. Co. Lit. 110. b. Cro. Eliz. 746. 1 Roll. Rep. 216. c. is not good the reason is because the Plaintiff ought to prescribe in him who hath the Inheritance but where a thing is of necessity and no manner of profit or charge in the Soil of another but only a thing in discharge or for a Way to a Market or to be quit of Toll in such cases not only a particular person but the Inhabitaints of a Vill may alledge a Prescription This may be as well alledged as a Custom to turn a Plow upon another mans Land or for a Fisherman to mend his Nets there 'T is good as to the matter for 't is only an easment 't is like a Custom alledged for a Gateway or Watercourse and for such things Inhabitants of a Vill Cro. Eliz. 441. or all the Parishioners of a Parish may alledge a Custom or Vsage in the place 2. Point But as to the Plea in Bar 't is not good because the execting of a Bridge is but laying out a Way t is a voluntary act and no man by reason of his own act can be discharged of what he is to do upon the interest he hath in the Ferry If the Defendant had petitioned the King to destroy the Ferry and got a Patent to erect a Bridge and had brought a Writ ad quod dampnum and it had been found by inquisition to be no damage to the People then he might safely have built this Bridge 3. But notwithstanding the Plea is not good yet the Plaintiff can have no advantage of it because he cannot have an Action on the Case for this matter for by his own shewing 't is a common Passage Cro. Car. 132 167. 1 Inst 56. a. Cro. Eliz. 664. 13 Co. 33. Davis 57. which is no more than a common High-way now for disturbing him in such a Passage no Action on the Case will lie unless he had alledged some particular damage done to himself for if he could maintain such an Action any other person is entituled to the like and this would be to multiply Suits which the Law will not allow but hath provided a more apt and convenient remedy which is by presentment in the Leet If Toll had been extorted from him F. N. B. 94. 22 H. 6.12 then an Action on the Case had been the proper remedy but no such thing appeared upon this Declaration Prince 's Case THE Suggestion in a Prohibition was that Prince was seized of the Rectory of Shrewsby ut de feodo jure and that he being so seised de jure ought to present a Vicar to the said place but that the Bishop of the Diocess had of his own accord appointed a person thereunto This Exception was taken to it viz. He doth not say that he was Impropriator but only that he was seised of the Rectory in Fee so it not appearing that he had it Impropriate he ought no to present the Vicar Iustice Dolben replied That in several places in Middlesex the Abbots of Westminster did send Monks to say Mass and so the Vicaridges were not endowed but he put in and displaced whom he pleased That he had heard my Lord Chief Iustice Hales often say that the Abbot had as much reason to displace such Men as he had his Butler or other Servant Curia Declare upon the Prohibition and try the Cause Harrison versus Hayward Pasch 2 Gulielmi Rot. 187. AN Agreement was made to assign a Stock upon Request When a thing is to be done upon request the performance must be when the person requires it and the Defendant cannot plead that he was ready to assign after the promise made and for non-performance an Action was now brought setting forth the Agreement and that the Plaintiff did request the Defendant at such a time c. The Defendant pleaded that he was ready to assign the Stock after the promise made c. and upon a Demurrer it was ruled if the thing was not to be done upon Request then the Defendant was bound to do it in a convenient time after the promise but it being to be done upon request the time when the Plaintiff will require the performance of the Agreement is the time when the Defendant must do it Iudgment pro Quer. Thompson versus Leach WRit of Error upon a Iudgment in Ejectment given in the Common-Pleas Surrender not good without acceptance of the Surrendree 2 Vent 198. the Case upon the special Verdict was thus Viz. Simon Leach was Tenant for Life of the Lands in question with Remainder in contingency to his first second and third Son in Tail Male Remainder to Sir Simon Leach in Tail c. This Settlement was made by the Will of Nicholas Leach who was seised in Fee The Tenant for Life two months before he had a Son born did in the absence of Sir Simon Leach the Remainder man in Tail seal and deliver a Writing by which he did Grant Surrender and Release the Lands which he had for Life to the use of Sir Simon Leach and his Heirs and continued in possession five years afterwards and then and not before Sir Simon Leach did accept and agree to this Surrender and entred upon the Premisses But that about four years before he thus agreed to it Simon Leach the Tenant for Life had a Son born named Charles Lessor of the Plaintiff to whom the Remainder in contingency was thus limited The Tenant for Life died then Sir Simon Leach suffered a Common Recovery in order to bar those Remainders 1. The Question was whether this was a legal and good Surrender of the Premisses to vest the Freehold immediately in Sir Simon Leach without his Assent before Charles Leach the Son of Simon Leach the Surrenderor was born so as to make him a good Tenant to the Precipe upon which the Recovery was
remain amongst us 't is a Custom contrary to the positive Laws of God and which inverts the very order of Nature it was introduced amongst us in a barbarous Age and by a very wicked and adulterous practice after this manner viz. The Lords of certain Lands which were held of them in Villenage did usually lye with their Tenants Wives the first Night after Marriage this Usage was continued after those very Lands were purchased by Freemen who in time obtained this Custom on purpose that their eldest Sons who might be their Lord's Bastards should be incapable to inherit their Estates I could never yet find any tolerable reason for the support or continuance of this Custom but the Reason of it which was given by a learned Lawyer is because the youngest is least able to defend himself certainly he could never mean Ability of Body because 't is frequently seen that the youngest Son is the Champion of the Family and if he intended Ability in Estate I would fain know what the elder Brother hath to defend himself when by this unnatural Custom the youngest is entitled to the whole I am not setting up for a Reformer of the Law or the Abuses of it 't is not a work for a single person but rather for a Committee of able and skilful Men of that Profession appointed by the Government Neither will I object against the Practice of it as heretofore in the year 1654. it hath been done viz. That great part consists in known and apparent Untruths That a Common Recovery ought not to be suffered in a Christian Nation because 't is Fictio Juris which is an abuse of the Law That when 't is suffered at the Bar by the Tenant and Demandant there is scarce a true word in all the Colloquium amongst the Serjeants and that therefore an Estate Tail may more righteously be discontinued by a Feoffment with Livery than by the Statute de Donis This was the Language of those times They found fault likewise with that wicked Process of Latitat that it was framed upon a supposed Falshood by suggesting of a Bill of Middlesex sued out which is never actually done and that the Defendant could not be taken there because he is sculking about in another County which is seldom or never true and presently afterwards he is in Custodia Marescalli which is as false as the rest and that John Doe and Richard Roe are Pledges de Prosequendo when there are no such Men in Nature these things and many more I could name of the like Nature I esteem as trivial Matters for no Injury is done to any Body by such Formalities But when there is danger of Corruption in that which was originally intended for the great preservative of our Liberties I mean in Trials by ordinary Juries it may be worth a great deal of Pains and Study to propose some effectual means to prevent it which is the chief end of this Preface that you may at some time employ your Thoughts in so useful a piece of Service to your Country I shall only give you a short History of such Trials which is as followeth viz. There are Opinions that such Trials were had in this Nation by a Jury of Twelve Men long before the time of the English Saxons though the Writers in those Ages give no account of this Matter This is collected from that great esteem the Chaldeans had for the number 12. because of so many Signs in the Zodiack those People applying themselves chiefly to the Study of Astrology That from them this Number came to the Aegyptians and so to Greece where Mars himself was tryed for a Murder by a Jury of that Number and acquitted by an equality of Votes which is the first Trial mentioned in History by a Jury of Twelve That the Greeks frequenting this Island to export our Tin became acquainted with the Natives and in process of time cohabited with them who being a more polite People did introduce this way of Trials here and 't is very probable that some of our Customs came from them because some of our Law-Terms as Chirographer Protonotary and many more are derived from their Language After the Conquest of Greece by the Romans new Laws were instituted by them to govern this Nation which was then a Province to the Conquerors and though such Trials were then disused yet they had that Number in several subordinate forms of their Administration Afterwards when that great Empire declined when the Britains were forsaken by them and left to the Depredations of the Pagan Saxons then were other Trials introduced by that barbarous People which was by Battle in doubtful cases and when that could not be joyned then Purgations by Ordeal were allowed Trials very agreeable to the uncultivated Temper of those People Thus it continued till about two hundred years before the Norman Conquest and then Ethelbert an English Saxon King received Christianity and by his Example the Dispositions of the People were qualified into a more civil and peaceable deportment then were those Trials for the most part laid aside and that good King being at Wantage now a Market-Town in Berk-shire did there by the Advice of his Council ordain that Trials should be had by Juries consisting of twelve Men which Law doth still continue But notwithstanding such were then and are still the best and most effectual Methods to discover the Truth yet Ordeals were used here for above one hundred and fifty years after the Conquest and then about the beginning of the Reign of H. 3. were abolished by Act of Parliament But Combates continued here till 6 Car. 1. so difficult are the English to part with any ancient Usage of their Ancestors though in no wise suitable to them who live in a more polite and learned Age. Juries being thus confined to the Number 12. it was afterwards enacted by the Statute of 2. H. 5. That all Jurors returned for Trials of Issues c. should have 40 s. per annum This Law continued for the space of an hundred and ninety years or thereabouts and then the Wisdom of the Nation considering that to be a very mean Estate for the support of a Jury-Man a farther Provision was made by a Statute Anno 27 Eliz. That such Jurors should have 4 l. per Annum And thus the Law stood for above an hundred years in all which time this Kingdom hath been growing in Riches its Trade is now extended to most parts of the World and as that hath been enlarged so the Price of our Lands the Value of our Rents of our natural Commodities and of all our Manufactures have wonderfully encreased so that a Man of 4 l. per Annum is now in so mean a condition of life that he is no longer to be entrusted with the Trial of an ordinary Cause and therefore by the Statute of 4 5 Willielmi Mariae such Jurors are to have 10 l. per Annum Now upon a moderate
Trust as in the Case of Wardship formerly which always went to the Executor of the Grantee and which was of greater consideration in the Law than the feeding or clothing of an Ideot and of that Opinion was the Court that the King had a good Title to dispose of both the Ward and the Ideot one till he was of Age and the other during his Ideocy Iudgment for the Defendant DE Term. Sanctae Trin. Anno 36 Car. II. in Banco Regis 1684. Reeves versus Winnington THE Testator was a Citizen and a Freeman of London A Devise of all his Estate passed a Fee and being seised in Fee of a Mesuage c. and likewise possessed of a considerable personal Estate made his Will in which there was this Clause viz. I hear that John Reeves is enquiring after my Death but I am resolved to give him nothing but what his Father hath given him by Will I give all my Estate to my Wife c. The Question was Whether by these words the Devisee had an Estate for Life or in Fee in the Mesuage It was argued that she had only an Estate for life because the Words All my Estate cannot be construed to pass a Fee for it doth not appear what Estate was intended and Words in a Will which go to disinherit an Heir must be plain and apparent A Devise was in these Words viz. Sid. 191. Bowman versus Milbank I give all to my Mother all to my Mother and it was adjudged that a Fee did not pass which is as strong a Case as this for by the word All it must be intended All that was in his power to give which is as comprehensive as if he had said All my Estate 'T is true Kerman and Johnson Stiles 281. 1 Rol. Abr. 834. Cro. Car. 447. it hath been adjudged that where a Man devised his whole Estate to his Wife paying his Debts and Legacies that the word Estate there passed a Fee because it was for the benefit of the Creditors there being not personal Assets sufficient to pay all the Debts But that is not found in this Case therefore the Word Estate being doubtful and which will admit of a double construction shall not be intended to pass a Fee Mr. E contra Pollexfen contra The first part of this Sentence consists in negative words and those which are subsequent explain the intention of the Testator viz. That John Reeves should take nothing by the Will The Word Estate doth comprehend the whole in which the Owner hath either an Interest or Property like a Release of all Actions which is a good discharge as well of real as personal Actions In common understanding it carries an interest in the Land and then 't is the same as if he had devised all his Fee-simple Estate In the Case of Bowman and Milbank it was adjudged that a Fee-simple did not pass by the Particle All because it was a Relative Word and had no Substantive joined with it and therefore it might have been intended All his Cattle All his Goods or All his personal Estate for which incertainty it was held void yet Iustice Twisden in that Case said that it was adjudged that if a Man promise to give half his Estate to his Daughter in Marriage that the Lands as well as the Goods are included The Testator devised all his Tenant-right Estate held of such a Manor 3 Keb. 245. Mod. Rep. 100. and this being found specially the Question was Whether any more passed than an Estate for Life because he did not mention what Estate he intended but it was held that the Devisee had a Fee-simple because the Words were as comprehensive as if he had devised all his Inheritance and by these Words a Fee-simple would pass Curia It plainly appears that the Testator intended nothing for John Reeves therefore he can take nothing by this Will and that the Devisee hath an Estate in Fee-simple for the Words All my Estate are sufficient to pass the same Rex versus Sir Thomas Armstrong Saturday June 14th THE Defendant was outlawed for High-Treason and being taken at Leyden in Holland was brought into England and being now at the Bar he desired that he might have leave of the Court to reverse the Outlawry and he tried by virtue of the Stature of Ed. 6. which Enacts 5 6 E. 6. cap. 11. That if the Party within one year after the Outlawry or Judgment thereupon shall yield himself to the Chief Justice of England and offer to traverse the Indictment upon which he was outlawed he shall be admitted to such Traverse and being acquitted shall be discharged of the Outlawry He alledged that it was not a year since he was outlawed and therefore desired the benefit of this Law But it was denied because he had not rendered himself according to the Statute but was apprehended and brought before the Chief Iustice Whereupon a Rule was made for his Execution at Tyburn which was done accordingly DE Term. Sancti Mich. Anno 36 Car. II. in Banco Regis 1684. Hebblethwaite versus Palmes Mich. 36 Car. II. in B. R. Rot. 448. AN Action on the Case was brought in the Common-Pleas Possession is a sufficient cause to maintain an Action against a wrong doer for diverting of a Watercourse The Declaration was That the Defendant Primo Augusti c. injuste malitiose did break down an ancient Damm upon the River Darwent by which he did divert magnam partem aquae ab antiquo solitu cursu erga molendinum ipsius quer c. ad dampnum c. The Defendant pleaded that before the said Breach made he was seised in Fee of an ancient Mill and of six Acres of Land adjoyning upon which the said Damm was erected time out of mind to turn the Water to his said Mill which Damm was always repaired and maintained by the Defendant and the Tenants of the said Land that his Mill was casually burnt and he not intending to Re-build it suffered the Damm to be broken down and converted the Timber to his own use being upon his own Soil prout ei bene licuit c. The Plaintiff replied that by the breaking of the Damm the Water was diverted from his Mill c. The Defendant rejoyned and justified his Plea and Traversed that the Mill of the Plaintiff was an ancient Mill. And upon a Demurrer to this Rejoynder Iudgment was given for the Plaintiff and a Writ of Error now brought to reverse that Iudgment and for the Defendant in the Action it was argued 1. That the Declaration is not good because the Plaintiff had not set forth that his Mill was an ancient Mill. 2. Because he had not entituled himself to the Watercourse 3. That the Plea was good in Bar to this Action because the Defendant had sufficiently justified having a Right to the Land upon which the Damm was erected and always repaired it As to the first Point it
the one took 70 l. and the other 30 l. damages shall be assessed severally It was admitted that regularly the damages ought to be entire especially where the Action is joint but where the Facts are several damages may likewise be so assessed but in this Case the Iury hath done what the Court would do had it béen in a Criminal Cause Curia This is all but one Fact which the Iury is to try 'T is true when several Persons are found Guilty criminally then the damages may be severed in proportion to their Guilt but here all are equally guilty of the same offence and it seems to be a contradiction to say that the Plaintiff is injured by one to the value of 50 l. and by the other to the value of 1000 l. when both are equally Guilty Every Defendant ought to answer full as much as the Plaintiff is damnified now how is it possible he should be damnified so much by one and so little by the other But notwithstanding this Opinion Iudgment was afterwards given for the Plaintiff Peak versus Meker IN an Action on the Case for Words the Plaintiff declared that he was a Merchant and bred up in the Church of England and that when the present King came to the Crown the said Plaintiff made a Bonfire at his Door in the City of London and that the Defendant then spoke of him these words for which he now brought this Action viz. He innuendo the Plaintiff is a Rogue a Papist Dog and a pitiful Fellow and never a Rogue in Town has a Bonfire before his Door but he The Plaintiff had a Verdict and 500 l. Damages were given A Writ of Error was brought but it was adjudged without argument that the words were actionable Joyner versus Pritchard AN Action was brought upon the Statute of R. II. Admiralty for prosecuting of a Cause in the Admiralty Court which did arise upon the Land it was tried before the Chief Iustice in London and a Verdict for the Plaintiff Mr. Thompson moved in Arrest of Iudgment for that the Action was brought by Original in which it was set forth that the Defendant prosecut fuit adhuc prosequitur c. in Curia Admiralitat now the prosequitur is subsequent to the Original and so they have recovered Damages for that which was done after the Action brought Curia These words adhuc prosequitur must refer to the time of suing forth this Original like the Case of a Covenant for quiet Enjoyment and a breach assigned that the Defendant built a Shed whereby he hindred the Plaintiff that he could not enjoy it hucnsque which word must refer to the time of the Action brought and not afterwards Iudgment was given for the Plaintiff Dominus Rex versus ........ AN Information was brought against the Defendant for Forgery Forgery setting forth that the Defendant being a man of ill fame c. and contriving to cheat one A. did forge quoddam scriptum dated the 16th day of October in the year 1681. continens in se scriptum obligatorium per quod quidem scriptum obligatorium praed A. obligatus fuit praed Defend in quadraginta libris c. He was found Guilty and afterwards this Exception was taken in arrest of Iudgment Viz. That the Fact alledged in the Information was a contradiction of it self for how could A. be bound when the Bond was forged 2. It is not set forth what that scriptum obligatorium was whether it was scriptum sigillatum or not Curia The Defendant is found Guilty of the forging of a Writing in which was contained quoddam scriptum obligatorium and that may be a true Bond. Iudgment was arrested MEMORANDUM On Tuesday April the 27th Sir Thomas Powes of Lincolns-Inn was made Sollicitor General in the Place of Mr. Finch and was called within the Bar. Hanchet versus Thelwal IN Ejectment a special Verdict was found Devise What words in a Will make an Estate for Life and what in Tail in which the Case did arise upon the construction of the words in a Will Viz. The Testator being seised in Fee had Issue Two Sons and Four Daughters He made his Will and devised his Estate being in Houses by these words Viz. Irem I give and bequeath to my Son Nicholas Price my Houses in Westminster and if itplease God to take away my Son then I give my Estate to my four Daughters naming them share and share alike and if it please God to take away any of my said Daughters before Marriage then I give her or their part to the rest surviving And if all my Sons and Daughters dye without Issue then I give my said Houses to my Sister Anne Warner and her Heirs Nicholas Price entred and died without Issue then the four Sisters entred and Margaret the eldest married Thellwel and died leaving Issue a Son who was the Lessor of the Plaintiff who insisted upon his Title to a fourth part of the Houses The Question was what Estate the Daughters took by this Will whether joint Estates for Life or several Remainders in Tail If only joint Estates for Life then the Plaintiff as Heir to his Mother will not be entituled to a fourth part if several Remainders in Tail then the Father will have it during his Life as Tenant by the Curtesie This Case was argued this Term by Mr. Pollexfen for the Plaintiff And in Hillary Term following by Councel for the Defendant The Plaintiffs Council insisted that they took joint Estates for Life and this seemed to be the intent of the Testator by the words in his Will the first Clause whereof was Viz. I give and bequeath my Houses in W. to Nicholas Price Now by these words an Estate for Life only passed to him and not an Inheritance for there was nothing to be done or any thing to be paid out of it 2. The next Clause is Viz. If it please God to take away my Son then I give my Estate to my four Daughters share and share alike Now these words cannot give the Daughters a Fee-simple by any intendment whatsoever but if any word in this Clause seems to admit of such a Construction it must be the word Estate which sometimes signifies the Land it self and sometimes the Estate in the Land But here the word Estate cannot create a Fee-simple because the Testator gave his Daughters that Estate which he had given to his Son before and that was only for Lise Then follow the words share and share alike and that only makes them Tenants in Common 3. The next Clause is Viz. If it please God to take away any of my said Daughters before Marriage then I give her or their part to the rest surviving These words as they are penned can have no influence upon the Case 4. Then followeth the last Clause Viz. And if all my Sons and Daughters dye without Issue then I give c. These words create no Estate tail in the
my Lord Coke to be an allowance by the King 's Grant to any person for the sole buying or selling of any thing restraining all others of that Liberty which they had before the making of such a Grant 3 Inst 181. and this he tells us is against the ancient and fundamental Rights of this Kingdom This Patent agreeth exactly with that Definition 9 E. 3. cap. 1. 18 E. 3. c. 3. 25 E. 3. c. 2. Roll. Abr. 180. 2 R. 2. c. 1. 11 R. 2. c. 7. and therefore it must be against Law 't is against an Act of Parliament which gives Liberty to Merchants to buy and to sell in this Realm without disturbance and 't is expresly against the Statute of 21 Jac. cap. 3. which declares all such Letters Patents to be void That which may give some colour to make such Grants good 2 Inst 540. 11 Rep. is a pretence of Order and Government in Trade but my Lord Coke was of Opinion that it was a hinderance to both and in the end it produced Monopolies There is a great difference between the King's Grant and his Prohibition for the one vests an Interest which is not done by the other and all Prohibitions determine by the King's death but Grants still remain in force Adjornatur Langford versus Webber IN Trespass for the taking of a Horse Justification upon a bare possession good against a wrong doer the Defendant justified for that Joseph Ash was possessed of a Close c. and that the Defendant as his Servant took the Horse in that Close Damage fesant And upon a Demurrer to this Plea for that the Defendant did not shew what Title Ash had to this Close The Councel for the Defendant insisted that it being in Trespass 't is sufficent to say that Ash was possessed because in this Case possession is a good Title against all others But it might have been otherwise in Replevin The Title of the Close is not in question Cro. Car. 138. Yelv. 74. Cro. Car. 571. pl. 10. the possession is only an inducement to the Plea and not the substance thereof which is the taking of the Horse and the Law is plain that where the interest of the Land is not in question a Man may justifie upon his own possession against a wrong-doer Mr. Pollexfen on the other side alledged that damage fesant would bring the Title of the Land in question But the Court gave Iudgment for the Defendant Perkins versus Titus A Writ of Error was brought to reverse a Iudgment given in the Common-Pleas Fine upon an Admittance where it must be certain in Replevin for taking of the Plaintiff's Sheep The Defendant avowed the taking damage fesant The Plaintiff replied that the Lands where c. were Copy-hold held of the Manor of Bushy in Com. Hertf. the Custom whereof was that every Tenant of the said Manor qui admissus foret to any Copyhold Estate should pay a years Value of the Land for a Fine as the said Land is worth tempore Admissionis And upon a Demurrer the Question was 1. Whether this be a good Plea or not as 't is pleaded 2. If it be good as pleaded then whether such a Custom may be supported by Law 1. It was for the Plaintiff in the Writ of Error now and in Michaelmas Term following argued that it was not a good Custom The substance of whose Arguments were that Fines are either certain or incertain those which are incertain are arbitrary and therefore cannot be due of Common Right nor by Custom for there can be no Custom for an incertain Fine and such is this Fine for the value of the Land cannot be known because as this Custom is pleaded it doth not appear whether it shall be a years value past or to come at the time of the admittance of the Tenant A Custom to assess rationabilem denariorum summam for a Fine upon an admittance that is to say 13 Rep. 1. being two years Rent of a Tenant of the yearly value of 53 s. 4 d. is no good Custom A Lease is made for so many years as a third person shall name this is altogether incertain 13 Edw. 3. Fitz. Abr. 273. but when the Term is named then 't is a good Lease but this can be done but once How can this Fine be assessed It cannot be by Iury for then it stands in need of the Common Law and will be therefore void for a Custom must have nothing to support it but usage 1. Neither can this be a good Custom as 't is pleaded because all Customs are made up of repeated Acts and Vsages and therefore in pleading them it must be laid time out of mind which is not done here for admissus foret hath a respect to future admissions and are not to those which are past 2. Here is no time laid when this Fine shall be paid for 't is said Quilibet tenens qui admissus foret c. solvet tantam denariorum summam quantum terra valebat per Annum tempore admissionis c. which last words must be taken to relate to the value of the Land and not to the time when the Fine shall be paid so that if there be such a Custom which is Lex loci and not fully set forth and expressed the Common Law will not help it by any Construction 2. Point Whether such a Custom can be good by Law And they argued that it cannot Where the Fine is certain the Lord may refuse to admit without a tender of it upon the prayer of the person to be admitted 4 Rep. 27. b. but where 't is incertain the Lord is first to admit the Tenant and then to set the Fine the reasonableness whereof is to be determined by Iudges before whom the Case shall depend or upon Demurrer or by a Iury upon proofs of the yearly value of the Land but for non payment of an unreasonable Fine the Lord cannot enter Cro. Eliz. 779. Cro. Car. 196. The Law admits of no Custom to be good but such as is very certain for incertainty in a Custom as well as in a Grant makes both void and therefore 't is held a void Custom for an Infant to make a Feoffment when he can measure an Ell of Cloth Rol. Abr. 565. 6 Rep. 60. Davies Rep. 37. It may be objected that certum est quod certum reddi potest the meaning of which saying must be quod certum reddi potest by something which is certain for if this Rule should be taken to be an answer to incertainties it would destroy all the Books which say a Custom must be certain The Law is very clear Fitz. Bar. 177. 2 Rol. Abr. 264. that a Custom is void for the incertainty therefore this Custom must be void for the value of Land is the most incertain thing in nature and therefore Perjury will not lye for swearing to the value Serjeant Fuller and Mr.
Finch contra The chief Objection is the incertainty of this Custom now if a Custom as incertain as this hath been held good in this Court 't is a good Authority to support this Custom And as to that it was said that a Custom for a person whom a Copy holder should name to have his Land after his death and that he should pay a Fine for his admitance And if the Lord and Tenant cannot agree about the Fine that then the rest of the Tenants should assess it 1 Rol. Rep. 48. 2 Cro. 368. 4 Leon. 238. Noy 3. 2 Brownl 85. this was adjudged a good Custom by the Court of Common-Pleas and affirmed upon a Writ of Error in this Court It was the Case of Crab and Bevis cited in Warne and Sawyers Case Adjornatur Afterwards the first Iudgment was affirmed and all the Court held the Custom to be a good Custom Hacket versus Herne JVdgment was had in Debt upon a Bond against Father and Son Where the Defendants in the Action must joyn in a Writ of Error and afterwards the Father alone brought a Writ of Error and the Error assingned was that his Son was under Age but because the Son did not join in the Errors the Court ordered the Writ to be abated If a Quare impedit be brought against a Bishop and others and Iudgment be against them all they must likewise all join in a Writ of Error unless it be where the Bishop claims only as Ordinary 'T is true Rol. Abr. 929. pl. 30. this is against the Opinion of my Lord Rolls in his Abridgment who puts the Case that where a Scire Facias was brought against four Executors who pleaded plene administraverunt the Iury find Assets in the Hands of two of them and that the other eant inde sine die two bring a Writ of Error and altho' at the opening of the Case it was held that the Writ should abate for that reason because brought only by two yet he says the Iudgment was afterwards affirmed and the Writ held good But there is a difference where a Writ of Error is brought by the Plaintiffs in the original Action 5 Co. 25. a Ruddock's Case and when by the Defendants for if two Plaintiffs are barred by an erronious Iudgment and afterwards bring a Writ of Error the Release of one shall bar the other because they are both actors in a personal thing to charge another and it shall be presumed a Folly in him to join with another who might release all But where the Defendants bring a Writ of Error 't is otherwise for it being brought to discharge themselves of a Iudgment the Release of one cannot barr the other because they have not a joint Interest but a joint burthen and by Law are compelled to join in Errors Mosse versus Archer COvenant by an Assignee of an Assignee of Lands which were exchanged the Breach assigned was Breach not well assigned that a Stranger habens jus titulum did enter c. There was a Uerdict for the Plaintiff and it was now moved in Arrest of Iudgment that the Plaintiff had not shewed a sufficient breach for he sets forth the Entry of a Stranger habens jus titulum but doth not shew what Title and it may be he had a Title under the Plaintiff himself 2 Cro. 315. Hob. 35. after the Exchange made and to prove this the Case of Kirby and Hansaker was cited in point and of that Opinion was all the Court. Nota It was said in this Case that an Exchange ought to be executed by either Party in their Life-time or else it is void Taylor versus Brindley THE Original in Trespass was quare Clausum fregit Variance between the Original and Declaration where 't is no Error and the Plaintiff declared quare Clausum Domum fregit and had Iudgment in the Common-Pleas and a Writ of Error was brought in this Court and the variance between the Original and Declaration was assigned for Error and that one was not warranted by the other But Serjeant Levinz argued that because the Original was certified three Terms since 2 Cro. 674. 1 Rol. Abr. 790. n. 7. Cro. Car. 272. 18 Eliz. cap. and no Continuances between it and the Declaration therefore that could not be the Original to this Action and that the Court might for that reason intend a Verdict without an Original which is helped by the Statute of Jeofails But he argued that where the Original varies from the Declaration and is not warranted by it 't is not aided by this Statute Iudgment was affrmed DE Term. Sancti Mich. Anno 3 Jac. II. in Banco Regis 1687. Wright Chief Justice Holloway Justices Powel Justices Allibon Justices Sawyer Attorny General Powis Sollicitor General Mathews versus Cary Pasch 3 Jac. Rot. 320. TRespass for entring of his House and taking of a Silver Tankard Where the Defendant justifies by way of excuse he must set forth the Warrant and that he took the Goods virtute Warranti The Defendant made conusance as Bayliff of the Dean and Chapter of Westminster for that the place where c. was within the Iurisdiction of the Leet of the said Dean who was seised of a Court Leet which was held there such a day c. And that the Iury did present the Plaintiff being a Tallow-Chandler for melting of stinking Tallow to the annoyance of the Neighbours for which he was amerced and that the Amerciament was affered to 5 l. which not being paid the Defendant by a Mandate of the said Dean and Chapter distreined the Tankard c. The Plaintiff replied de injuria sua propria absque hoc that he did melt Tallow to the annoyance of the Neighbours c. And upon a Demurrer to this Replication it was argued this Term by Mr. Pollexfen for the Defendant and Tremaine for the Plaintiff and afterwards in Michaelmas Term 1 Will. Mariae by Mr. Bonithan and Serjeant Thompson for the Defendant It was said for the Defendant that a Presentment in a Court Leet which concerns the person as in this Case and not the Free hold 5 H. 7.3 Fitz. Bar. 271. Bro. Abr. tit Travers sans ceo pl. 183. Presentment in Court pl. 15. was not traversable and that the Amerciament was a Duty vested in the Lord for which he may distrain or bring an Action of Debt Co. Entr. 572. But on the other side it was said that if such a Presentment is not traversable the party hath no remedy 't is contrary to the Opinion of Fitzherbert in Dyer Dyer 13. b. who affimed the Law to be that it was traversable and that if upon such a Presentment a Fine should be imposed erroniously 11 Co. 42. 1 Rol. Rep. 79. it may be avoided by Plea and this agrees with the second Resolution in Godfrey 's Case 2. It was objected to the Plea that it was not good for it sets
forth that the Plaintiff was amerced and that it was affered at the Court and so he hath confounded the Office of the Iurors and Affearers together which he ought not to do for he should be amerced to a certain Sum Hob. 129. Rol. Abr. 542. and not in general which Sum may be mitigated or affered by others If it had been a Fine 8 Co. 38. 1 Leon. 142. it need not be affered because that is imposed by the Court but this is an Amerciament which is the act of the Jury and therefore it must be affered 3. The chiefest Exception was to the matter of the Warrant viz. the Defendant sets forth that he seised by virtue of a Precept from the Dean and Chapter whereas he ought to shew it was directed to him from the Steward of the Court and then to set forth the Warrant without which he cannot justifie to distrain for an Amerciament And of this Opinion was the whole Court and therefore Iudgment was given for the Plaintiff in Michaelmas Term Primo Will. Mariae If it had been in Replevin where the Defendant made cognizance in the right of the Lord it might be well enough as here pleaded but where 't is to justifie by way of excuse there you must averr the Fact and alledge it to be done and set forth the Warrant it self 3 Cro. 698.748 1 Leon. 242. and the taking virtute Warranti for a Bayliff of a Liberty cannot distrain for an Amerciament by virtue of his Office but he must have a Warrant from the Steward or Lord of the Leét for so doing The other Exception that the Amerciament ought to be to a Sum Rast Ent. 606. Co. Ent. 665. the Presidents are otherwise for an Amerciament per duodecim probos legales homines adtunc ibidem jurat ad 40 s. afferat ' is well enough but the Warrant is always set forth Dominus Rex versus Darby THE Defendant was indicted for speaking of scandalous words of Sir J.K. a Justice of the Peace Viz. Sir J.K. Indictment for Scandalous words is a buffle-headed Fellow and doth not understand Law he is not fit to talk Law with me I have bafled him and he hath not done my Clyent Justice Mr. Pollexfen for the Defendant said that an Indictment would not lye for these words because not spoken to the Party in the exceution of his Office but behind his back it will not lye for irreverent words but for Libels and Writings because such are publick but words are private offences But the Court being of Opinion that an Indictment would lye where an Action would not because it respects the publick Peace and that an Action would not lye in this Case unless the party had a particular loss Sid. 65. 2 Cio 5 8. and therefore it hath been held not to be actionable to call a Iustice of Peace Fool Ass Coxcomb He then took Exceptions to the Form of the Indictment 1. There is no place of Abode laid where the Defendant did inhabit which is expresly required by the Statute of H. 5. Viz. 1 H. 5. cap. 5 That in Indictments there shall be addition of the Estate Degree c. and of the Towns Hamlets Places and Counties where the Defendants dwell And by the Statute of H. 6. 8 H. 6. cap. 12 which gives the Iudges power to amend Records in affirmations of Iudgments such defects which are named in the Statute of H. 5. are excepted and therefore where a Writ of Error was brought to reverse an Outlawry upon the Statute of 5 Eliz. for Perjury 2 Cro. 167. the Defendant was Indicted by the Name of Nicholas Leech de Parochia de Aldgate and did not shew in what County Aldgate was and for this cause it was reversed 2. The Caption is coram Justiciariis ad pacem dicti Domini Regis conservand ' and the word nunc is left out It was the Opinion of Iustice Twisden that it ought to be nunc conservand ' Sid. 422. for otherwise it may be the Peace of King Stephen The Councel on the other side said that it was a new Doctrine that the King shall not have the same Remedy by an Indictment which the Subject may have by an Action What is the meaning of the words of all Commissions de propalationibus verborum As to the first Exception they said that the Indictment was certain enough for the Defendant is laid to be de Almondbury in the West-Riding of Yorkshire To the second Exception they said that ad pacem conservand ' without nunc is well enough for it cannot be intended upon this Indictment that they were Iustices to preserve the Peace in any other Kings Reign and what was quoted out of Siderfin is but the Opinion of one single Iudge This is a Scandal upon the Government and 't is as much as to say that the King hath appointed an ignorant Man to be a Iustice of Peace for which an Indictment will lye And of that Opinion was the whole Court and gave Iudgment accordingly Ball versus Cock A Writ of Covenant did bear Teste the first day of Trinity Term Error to reverse a Fine where the Cognisor died after the Caption and before it passed the King's Silver retornable tres Trinitatis and it was taken by Dedimus 30 Julii A Writ of Error was brought to reverse this Fine and the Error assigned was that the Cognizor died after the Caption and before the Enrolment at the King's Silver Office It was argued by the Councel for the Plaintiff in the Writ of Error that a Fine Sur Cognizance de droit c. is said to be levied when the Writ of Covenant is returned and the Concord and King's Silver which is an antient Revenue of the Crown pro licencia concordandi duly entred for though the Cognisor dieth afterwards Dyer 220. b. 5 Co. 37. Cro. Eliz. 469. the Fine is good and the Land passeth but if the King's Silver be not entred the Fine may be reversed by Writ of Error for it is an Action and Iudgment and the death of either Party abates it If it should be objected that this cannot be assigned for Error because 't is against the Record which is Placita terrae irrotulat de Termino Sanctae Trinitatis anno primo Jacobi c. 'T is true an Error cannot be assigned against the very essence of a Record but in the matter of time it may and so 't is in this Case 'T is like Syer's Case 32 Eliz. 3 Inst 230. 4 Co. Hind's Case 10 H. 7.24 who was indicted for a Burglary supposed to be done primo Augusti and upon the Evidence it appeared to be done primo Septembris and though he was acquitted of the Indictment for that reason viz. because the Iudgment relates to the day of the Indictment yet it was resolved by all the Iudges of England that the very day needs not be set down in
the Indictment for be it before or after the Offence the Iury ought to find according to the truth of the Case upon the Evidence for they are sworn ad veritatem dicendam c. This must be assigned for Error for if the contrary be said 't is against the Record the Custos Brevium having retorned that the Fine was taken 30 July which could not be in Trinity Term for that ended 8 July otherwise 't is repugnant to it self Econtra It was argued that this is not assignable for Error Dyer 220. b. 12 Co. 124. 't is true if the Party had died before the Entry of the King's Silver it had been Error but if afterwards 't is not so Thus was the Case of Warnecomb and Carril which was Husband and Wife levied a Fine of the Lands of the Wife and this was by Dedimus in the Lent Vacation she being then but 19 years of Age the King's Silver was entred in Hillary Term before and she died in the Easter week and upon a Motion made the first day of Easter Term to stay the engrossing of the Fine it was denied by the Court for they held it to be a good Fine Another reason why this is not assignable for Error 2 Cro. 11. Yelv. 33. is because 't is directly against the Record which is of Trinity Term and can be of no other Term and to prove this he cited Arundel's Case where a Writ of Error was brought to reverse a Fine taken before Roger Manwood Esq in his Circuit he being then one of the Iustices of the Common-Pleas and the Dedimus was returned per Rogerum Manwood Militem for he was Knighted and made Chief Baron the Eerm following the Fine passed and this was afterwards assigned for Trror that he who took the Caption was not a Knight but it being directly against the Record they would not intend him to be the same person to whom the Writ was directed Adjurnatur Afterwards the Fine was affirmed Lock versus Norborne UPon a Trial at Bar in Ejectment for Lands in Wiltshire Verdict shall only be given in Evidence amongst privies the Case was thus Viz. Mary Philpot in the year 1678. made a Settlement by Lease and Release to her self for Life then to Trustees to support contingent Remainders then to her first second and third Son in Tail Male c. then to Thomas Arundel in Tail Male with divers Remainders over It was objected at the Tryal that she had no power to make such Settlement because in the year 1676. her Husband had setled the Lands in question upon her for Life and upon the Issue of his Body c. and for want of such Issue then upon George Philpot in Tail Male with several Remainders over the Remainder to Mary Philpot in Fee Proviso that upon the tender of a Guinea to George Philpot by the said Mary the Limitations as to him should be void George Philpot having afterwards made a Lease of this Land to try the Title the Trustees brought an Ejectment but because the tender of the Guinea could not be proved there was a Verdict for the Defendant And now Mr. Philpot would have given that Verdict in Evidence at this Trial but was not suffered by the Court for if one Man hath a Title to several Lands and if he should bring Ejectments against several Defendants and recover against one he shall not give that Verdict in Evidence against the rest because the Party against whom that Verdict was had may be relieved against it if 't is not good but the rest cannot tho' they claim under the same Title and all make the same defence So if two Tenants will defend a Title in Ejectment and a Verdict should be had against one of them it shall not be read against the other unless by Rule of Court But if an Ancestor hath a Verdict the Heir may give it in Evidence because he is privy to it for he who produceth a Verdict must be either party or privy to it and it shall never be received against different persons if it doth not appear that they are united in Interest Therefore a Verdict against A. shall never be read against B. for it may happen that one did not make a good defence which the other may do The tender of the Guinea was now proved DE Term. Sancti Hill Anno 3 Jac. II. in Banco Regis 1687 8. Wright Chief Justice Holloway Justices Powel Justices Allibon Justices Powis Attorny General Wm. Williams Sollicitor General THIS Vacation Sir Robert Sawyer had his Quietus and Sir Thomas Powis was made Attorny General and Sir William Williams of Greys-Inn was made Sollicitor General Rex versus Lenthal AN Inquifition was taken in the second year of this King under the Great Seal of England by which it was found that the Office of Marshal of the Kings-Bench did concern the Administration of Iustice and that Mr. Lenthal was seised thereof in Fee and that upon his Marriage he had setled the said Office upon Sir Edward Norris and Mr. Coghill and their Heirs in Truff that they should permit him to execute the same during his Life c. That the said Trustees had neglected to give their attendance or to execute the said Office themselves that this Canveyance was made by Mr. Lenthal without the notice of this Court that he received the Profits and afterwards granted the said Office to Cooling for Life That Cross and his Wife had obtained a Iudgment in this Court against Bromley and had sued forth Erecution for the Debt and Damages for which he was committed to the custody of the said Cooling and being so in Execution did go at large They find that Cooling had not sufficient to answer Cross and his Wise for the said Debt c. whereupon they impleaded Mr. Lenthal in the Common-Pleas for 121 l. 2 s. 4 d. to answer as superior that at the Trial Mr. Lenthal gave this secret Deed of Settlement in Evidence whereupon the Plaintiffs in that Action were non-suited ad dampnum c. They find that Cooling went out of the said Office and the Trustees neglecting the execution thereof Mr. Lenthal granted the same to Glover for Life that during the time he executed this Office one Wordal was convicted of Forgery and commited to his Custody and that he permitted him voluntarily to Escape by which the said Office was forfeited to the King The King had granted the Office to the Lord Hunsdon Sir Edward Norris and Mr. Coghill come in and plead that Mr. Lenthal was seised in Fee and that he made a Settlement of the Office upon his Marriage with Mrs. Lucy Dunch with whom he had 5000 l. Portion viz. upon them and their Heirs in trust prout in the Inquisition and that he did execute the Office by-their permission Mr Lenthal pleads and admits the Grant to Sir Edward Norris and the other Trustee bearing date such a day c. but saith that the next
contra As to the first Exception it was said that the Wardmote Court was held before the Mayor for the Iuries there are not to try any Matter but only to make Presentments which are carried before the Mayor Exceptions were taken against the Indictment which was for not serving at a Wardmote Inquest for such a year 1. Because 't is a thing not known at the Common Law that a Man should be of a Iury for a whole year The Indictment was that the Defendant was an Inhabitant of such a place and elected a Iury Man 2. But doth not say that he ought to hold the Office to which he was elected It was quashed Calthrop versus Axtel THE Husband being seized in Fee had Issue two Daughters Ejectment upon the Statute of Ph. Mar. for marrying under 16 without the Parents Consent Antea Hicks versus Gore and dyed his Wife survived who was then by Law Guardian in Socage to her Children one of which under the Age of sixteen years married one Mr. B. without her Mother's Consent by reason whereof her Estate became forfeited during life to her Sister by vertue of the Statute of 4 5 Ph. Mar. who now brought an Ejectment which was tried at the Bar. The Mother was produced as a Witness at this Trial against the married Daughter but it was objected against her that she was Tenant in Possession of the Lands in question under her other Daughter that some part of the Estate was in Houses and that she had made Leases thereof to several Tenants for 99 years c. and covenanted with the Lessees that she together with the Infants when of Age shall and will joyn to do any â—â—â—rther Act for the quiet enjoyment thereof therefore this is like the Case of a Bailiff or Steward who if they put themselves under such Covenants shall never be admitted as Witnesses in any Cause where the Title of such Lands shall come in question The Proofs that the Mother did not consent were That she made Affidavit of the whole matter and got the Lord Chief Iustice's Warrant to search Mr. B's Houss for her Daughter and upon application made to my Lord Chancellor she obtained a Writ of Ne exeat Regnum and got a Homine replegiando and gave notice of the Fact in the Gazett and exhibited an Information in the Crown Office against Mr. B. and his Father and his Maid Attorny General contra E contra The Preamble of this Act will be a Guide in this Case which is For that Maids of great Substance in Goods c. or having Lands in Fee have by Rewards and Gifts been allowed to contract Matrimony with unthrifty persons and thereupon have been conveied from their Parents by sleight or force c. Then it enacts That no person shall convey away a Maid under 16 years without her Parents Consent which Assent is not necessary within the meaning of this Act unless the Child be taken away either by sleight or force which must be proved The Mother was no good Guardian to these Children for she did set up one G. to be a Curator for her Daughter in the Spiritual Court to call her self to an accompt for the personal Estate of which her Husband died possessed she having given Security to exhibit a true Inventory This Accompt was stated in the Prerogative Court between her and the Curator to 300 l. only for which she gave Bond when in truth the Personal Estate was worth more and afterwards obtained a Decree in Chancery thinking thereby to bind the interest of the Infants In this Case it was said that there must be a continued refusal of the Mother for if she once agree though afterwards she disassent yet 't is an assent within the Statute There must likewise be proof of the stealing away Obrian versus Ram. Mich. 3 Jac. 2. Rot. 192. Angl ' ss Entry of a Writ of Error out of Ireland DOminus Rex mandavit praedilecto fideli Conciliario suo Willielmo Davis Militi Capitali Justic suo ad placita in Curia ipsius Domini Regis coram ipso Rege in Regno suo Hiberniae tenend ' assign ' Breve suum Clausum in haec verba ss Jacobus secundus Dei gratia Angliae Scotiae Franciae Hiberniae Rex Fidei defensor c. pradilecto fideli Conciliario nostro Willielmo Davis Militi Capital ' Justic ' nostro ad placita in Curia nostra coram nobis in Regno nostro Hiberniae tenend ' assign ' salutem Quia in Recordo Processu acetiam in redditione Judicii loquelae quae fuit in Curia nostra coram nobis in praed Regno nostro Hiberniae per Billam inter Abel Ram Mil. nuper dict Abel Ram de Civitate Dublin Alderman ' Elizabetham Grey de Civitate Dublin Viduam de quodam debito quod idem Abel a praefat ' Elizabetha exigebat Quae quidem Elizabetha postea cepit Donnough Obrian Armigerum in virum suum obiit Necnon in adjudications executions ejusdem Judicij super Breve nrÌ„um de Scire FacÌ„ extra eandem Curiam nostram coram nobis emanen ' versus ipsum praed In adjudicatione Executionis super Scire Fac. Donnogh in loquela praed ut dicitur Error intervenit manifestus ad grave dampnum ipsius Donnogh sicut ex querela sua accepimus Nos Error si quis fuerit modo debito corrigi partibus praed plenam celerem justiciam fieri volentes in hac parte vobis mandamus qd ' si judicium in loquela praed ' reddit ' ac adjudicationem executionis judicii praed super breve nostrum de Scire facÌ„ praed adjudicatÌ„ tunc record ' process tam loquel ' quam adjudicationis executionis judicii praed ' cum omnibus ea tangen ' nobis sub sigillo vestro distincte aperte mittatis hoc Breve ita qd ' ea habeamus in Crastino Ascentionis Domini ubicunque tunc fuerimus in Angl ' Ut inspect ' record ' process praed ' ulterius inde pro Errore illo corrigendo Fieri fac ' quod de jure fuerit faciend ' Et Scire fac praefat ' Abel qd ' tunc sit ibi ad procedend ' in loquela praed ' faciend ' ulterius recipiend ' quod dicta Curia consideraverit in praemissis Teste meipso apud Westm xxii Januarii Anno Regni nostri secundo Price Record ' Process The Return loquelae unde infra fir mentio cum omnibus ea tangen ' coram Dno Rege ubicunque c. ad diem locum infracontent ' mitto in quodam Record ' huic Brevi annex ' Scire feci Abel Ram qd ' tunc sit ibi ad procedend ' in loquela praed prout interius mihi praecipitur Respons ' W. Davis Placita coram Domino Rege apud the Kings Courts de Termino Sanctae Trinitatis Anno Regni Domini
a new Recovery Debt will not lie F.N.B. 122. E. and to prove this there is and Authority in Fitzherbert where a Prior had Iudgment for an Annuity and brought a Scire Fac. upon that Iudgment against the Successor of the parson who was to pay it and obtained a Iudgment upon that Scire Fac. to recover the arrearages and afterwards brought an Action of Debt upon the last Iudgment and the Book says fuit maintein There is another Case in 2 Leon. 2 Leon. 14. 4 Leon. 186. 15 H. 7.16 where 't is held that an Action of Debt will lye upon a Iudgment in a Scire Facias upon a Recognizance Which Objections may receive this Answer First As to the Case in Fitzherbert 't is admitted to be Law but 't is not an Authority to be objected to this purpose because the first Iudgment for the Annuity charges the Successor but the Original Iudgment in this Case doth not charge the Husband so the Cases are not parallel The like answer may be given to the Case in Leonard for a Recognizance is a Iudgment in it self and Debt will lie upon it without a Sci. Fa. upon that Iudgment But on the other side it was argued E contra that the award of execution is absolute against Husband and Wife for 't is a Recovery against both whereas before it was only the Debt of the Wife but now 't is joynt against the one as well as the other The Iudgment upon the Sci. Fa. is a distinct Action It cannot be denied but that if a Woman be indebted and marrieth the Husband is chargable during the Coverture Bro. Ab. tit Baron and Feme pl. 27. 49 E. 3.35 b. which shews that by the Marriage he is become the principal Creditor As to the Sci. Fa. t is true at the Common Law if a Man had recovered in Debt and did not sue forth Execution within a year and a day he must then bring a new Original 1 H. 5. 5. a 43 Ed. 3.2 b. and the Iudgment thereon had been a new Recovery but now a Sci. Fa. is given by the Statute instead of an Original and therefore a Iudgment thereon shall also be a new Iudgment for tho' t is a Iudicial Writ yet 't is in the nature of an Action because the Defendant may plead any matter in Bar of the Execution upon the first Iudgment 1 Inst 290. b. and 't is for this reason that a Release of all Actions is a good bar to it Besides Rast Ent. 193. 4 Leon. 186. Dyer 214. b. an Action of Debt will lie upon a Iudgment on a Sci. Fa. which shews that 't is an Action distinct from the Original and upon such a Iudgment the Defendant may be comitted to Prison several years afterwards without a new Sci. Fa. The Husband may have execution of a Iudgment recovered by him and his Wife after the death of his Wife without a Sci. Fa. 1 Mod. Rep. 179. for the Iudgment hath made it a proper Debt due to him and he alone may bring an Action of Debt upon that Iudgment and it seems to be very reasonable that he should have the benefit of such a Iudgment and yet not be charged after the death of his Wife when there hath been a Recovery against both in her life-time This is like the Case where a Devastavit is returned against Husband and Wife as Executrix Moor 299. 3 Cro. 216. Cro. Car. 603. Sid. 337. and a Iudgment thereon quod querens habeat executionem de bonis propriis the Wife dies yet the Husband shall be charged for the Debt is altered If it should be otherwise this inconvenience would follow that if the Wife should die F.N.B. 121. c. 1 Rol. Abr. 351. 10 H. 6.11 the Husband will possess himself of her Estate and defraud the Creditors so that he takes her but not cum onere But the Law is otherwise for if a Feme being Lessee for years doth marry and the Rent is behind and she dies the Husband shall be charged with the Rent arrear because he is entituled to the Profits of the Land by his marriage To which it was answered that if a Man should marry an Exerecutrix and then he and his Wife are sued and Iudgment obtained against them to recover de bonis testatoris and thereupon a Fi. Fa. is awarded to levie the Debt and Damages and the Sheriff returns a Devastavit and then the Wife dies the Husband is not chargeable because the Iudgment is not properly against him who is joyned only for conformity but if upon the return of the Devastavit there had been an award of execution De bonis propriis that would have been a new Iudgment and the old one De bonis testatoris had been discharged 1 Roll. Abr. 351. and then the Husband must be charged for the new wrong Adjornatur Afterwards in 1 Will. Mar. the Iudgment was affirmed Bowyer versus Lenthal INdebitatus Assumpsit quantum meruit ad insimul computasset Valerent for Valebant good after Verdict The Plaintiff had a Iudgment by default in the Court of Common-Pleas and a Writ of Enquiry was brought and entire Damages given and now the Defendant brought a Writ of Error and it was argued that if any of the Promises be ill Iudgment shall be reversed the Error now assigned was in the second Promise Viz. That in consideration that the Plaintiff would let the Defendant have Meat Drink and Lodging he promised to pay so much Quantum rationabiliter valerent it should have been valebant at the time of the Promise made Sed non allocatur So the Iudgment was affirmed DE Termino Paschae Anno 4 Jac. II. in Banco Regis 1688. Wright Chief Justice Holloway Justices Powel Justices Allibon Justices Powis Attorny General Wm. Williams Sollicitor General NOTA Wednesday May 2. being the first day of this Term Sir Bartholomew Shower Recorder of London was called within the Bar. Heyward versus Suppie IN an Action of Covenant which was to make such an Assignment to the Plaintiff Covenant to make an Assignment as Council should advise according to an Agreement made between him and the Defendant as Council should direct and advise and for non-performance thereof this Action was brought the Defendant pleaded non est factum and Iudgment was obtained against him Vpon which a Writ of Error was brought and the common Error assgned It was objected that the Plaintiffs Council should give the advice because he is the person interested This Objection was answered by Mr. Pollexfen who said that the Defendant had likewise an interest in this matter for 't is an advantage to him to make the Assignment that his Covenant might be saved 't is true it had been otherwise if the Covenant had been to make such a Conveyance as Council should advise for then the person to whom the Covenant is made may chuse whether he will have a Feoffment
Release or Confirmation and then his Council should advise what sort of Conveyance is proper But here it is to make an Assignment and such as the Parties had agreed on If a Man should be bound to give another such a Release as the Iudge of the Prerogative Court shall think fit 5 Co. 23. Lambs Case 1 Rol. Abr. 424. pl. 8. the person who is so bound must procure the Iudge to direct what Release shall be given because the Condition is for his benefit and he hath taken upon him to perform it at his Peril 'T is usual for Men to have Council on both sides to put their Agreements into method but in this Case it being left generally as Council shall direct what reason can be given why the Defendants Council shall not be intended especially when it seems by the penning of the Covenant he shall For an Assignment is to be made as Council shall direct and here being a Verdict for the Plaintiff it must now be presumed that the Defendants Council was first to give the advice and then he was to make the Assignment E contra E contra It was argued that first as to the Verdict 't is not materially objected in this Case because the Plea is non est factum so that nothing of the special matter could come in Evidence Now admitting this Covenant to be general yet one of the Parties must make his choice of Council before he can entitle himself to an Action All Deeds are taken according to the general intendment and therefore by this Covenant his Council is to advise to whom the Assignment is to be made 3 Bulstr 168. for if the Council of the Defendant should advise an insufficient Deed that would not have saved his Covenant Befides the Plaintiff hath not averred that Council did not advise and therefore the Defendant could not plead any thing but non est factum Adjornatur Anonymus A Pleint was removed out of the Lord Mayors Court by Habeas Corpus the Return whereof was Exceptions to a By-Law that the City of London was an ancient City Incorporate and that time out of mind there was a Custom that the Portage and unlading of all Coals and Grain coming thither should belong to the Mayor and Aldermen c. That there was a Custom for them to regulate any Custom within the City c. Then they set forth an Act of Common-Council by which the Porters of Billingsgate were made a Fellowship and that the Meeters of Corn should from time to time give notice to the Porters to unlade such Corn as should arrive there and that no Bargeman not being Free of the said Fellowship shall unlade any Corn upon the Forfeiture of 20 s. to be recovered in an Action brought in the Name of the Chamberlain and that the Party offending shall have no Essoign or Wager of Law Then they set forth the Iudgment in the Quo Warranto and the re-grant and that the Defendant not being of the said Fellowship did unlade one hundred Quarters of Malt c. Serjeant Thompson took many Exceptions to this By Law but the most material were 1. It appears upon the Return that the City of London hath assumed an Authority to create a Fellowship by Act of Common Council which they cannot for 't is a Prerogative of the Crown so to do and they have not averred or shewed any special Custom to warrant such an Authority 2. They have made this By-Law too general for if a Man should carry and unlade his own Goods there he is lyable to the Forfeiture in which Case he ought to be excepted 3. This Act of Common Council prohibits Bargemen not being Free of the Fellowship of Porters to unlade any Coals or Grain arriving there and they have not averred that the Malt unladed did arrive c. so they have not pursued the words of the By-Law 4. They say in this Law Godb. 107. that the person offending shall have no Essoign or Wager of Law which is a Parliamentary Power and such as an inferiour Iurisdiction ought not to assume Adjornatur Beak versus Thyrwhit THere was a Sentence in the Court of Admiralty Whether Trover will lie for a Ship after Sentence in Admiralty for the same Ship concerning the Taking of a Ship and afterwards an Executrix brought an Action of Trover and Conversion for the same The Defendant after an Imparlance pleads that at the time of the Conversion he was a Servant to King Charles the Second and a Captain of a Man of War called the Phoenix and that he did seize the said Ship for the Governour of the East-India Company she going in a trading Voiage to the Indies contrary to the King's Prohibition c. And upon a Demurrer these Exceptions were taken to this Plea 1. The Defendant sets forth that he was a Servant to the King but hath not shewed his Commission to be a Captain of a Man of War 2. That he seized the Ship going to the Indies contrary to the King's Prohibition and hath not set forth the Prohibition it self It was Argued by the Council contra That it may be a Question whether this was the Conversion for which this Action is brought for it was upon the Sea and the Defendant might plead to the Iuisdiction of this Court the Matter being then under the Cognizance of the Admiralty But as to the Substance of this Plea 't is not material for the Defendant either to set forth his Commission or the King's Prohibition he hath shewed enough to entitle the Court of Admiralty to a Iurisdiction of this Cause and therefore this Court cannot meddle with it for he expresly affirmeth that he was a Captain of a Man of War and did seize this Ship c. which must be intended upon the Sea so that the Conversion might afterwards be upon the Land Cro. Eliz. 685. yet the original cause arising upon the Sea shall and must be tried in the Admiralty and it having already received a determination there shall not again be controverted in an Action of Trover The Case of Mr. 3 Keb. 785. Hutchinson was cited to this purpose who killed Mr. Colson in Portugal and was acquitted there of the Murder the Exemplification of which Acquittal he woduced under the great Seal of that Kingdom being brought from Newgate by an Habeas Corpus to this Court notwithstanding the King was very willing to have him tried here for that Fact the consideration whereof he referred to the Iudges who all agreed that he being already acquitted by their Law could not be tryed again here Adjornatur Smith versus Pierce A Special Verdict was found in Ejectment A Term for years was devised for payment of Debts the Remainder over in Tail he in Remainder enters and levies a Fine and settles the Land upon his Wife for life and dies the Wife surviving and the Debts not paid whether this Term is barred by
the Fine and Non-claim the Substance of which was That Robert Basket was seized in Fee of the Lands in Question who by Will devised it to Philip Basket and others for 99 years with power to grant Estates for the payment hf the Debts and Legacies of the Testator the Remainder in Tail to John Basket his Brother but that if he gave Security to pay the said Debts and Legacies or should pay the same within a time limited that then the Trustees should assign the Term to him c. John Basket entred after the death of his Brother with the assent of the said Trustees and received the Profits and paid all the Legacies and all the Debts but 18 l. The Iury find that John had Issue a Daughter only by his first Wife after whose death he married another Woman and levied a Fine and made a Settlement in consideration of that Marriage upon himself for Life and upon his Wife for Life with divers Remainders over that he died without Issue by his second Wife who entred and five years were past without any claim c. And now the Heir at Law in the name of the Trustees brought this Action The Questions were 1. Whether the Term for 99 years thus devised to the Trustees was bound by this Fine and Nonclaim or not 2. Whether it was divested and turned to a Right at the time of the Fine levied For if it was not then the Fine could not operate upon it It was agreed that as a Disseisin is to a Freehold so is a divesting to a Term and that a Fine and Non-claim is no Barr but where the Party at the time of the levying thereof had a Will to enter and when the Estate of which 't is levyed is turned to a Right That in the Case at the Barr the Entry of John Basket was tortious because the legal Estate was still in the Trustees But if he had gained any Right by his Entry 't is only a Tenancy at Will to them for they took notice of the Devise and he entred by their consent and such a Right is not assignable and then a Fine levyed is no Barr. To prove this 9 Co. 106. Margaret Prodger's Case was cited where the the Lord granted a Copyhold to John Elizabeth and Mary for their Lives and afterwards by Deed enrolled sold the Land to John in Fee and levyed a Fine to him and his Heirs c. and five years passed without any Claim John dyed his Son entred and levyed another Fine to Trustees to the use of himself and Margaret his Wife for Life the Remainder to his own right Heirs the Son died and his Wife survived who having a Freehold for Life distrained and the Husband of Elizabeth brought a Replevin It was adjudged that this Fine and Nonclaim did not barr those in Remainder becase the Bargain and Sale to John did not divest their Estate and turn it to a Right for the Lord did what he might do and John accepted what he might lawfully take who being in possession by virtue of a particular Estate for Life could not by this acceptance divest the Estate of her who had the Freehold and the Fine and Nonclaim could not do it for to what purpose should he make any Claim when he was in actual possession of the thing to be demanded And he who is so in possession need not make any Claim either to avoid a Fine or a collateral Warranty Now though at the Common Law there must be Livery and Seisin to create an Estate of Freehold 3 Co. Fermer 's Case yet any thing is sufficient to make an Estate at Will in which neither the Inheritance or the Title of the Land is concerned and therefore a Fine levyed by such a Tenant is no Barr. 'T is true Sid. 458. Freeman versus Barns if a Lease be made for an hundred years in Trust to attend the Inheritance and Cestuy que Trust continues in possession and devises to another for fifty years and levies a Fine and the five years pass without Claim he being still in possession after the first Lease made is thereby become Tenant at Will and by making the second Lease the other is divested and turned to a Right though he was not a Disseisor and so 't is barred by the Fine because the Cestuy que Trust of the term of one hundred years was also Owner of the Inheritance But in the Case at the Barr John shall not be a Disseisor but at the Election of the Trustees of the Term of 99 years to prove which there are many Authorities in the Books As if Tenant at Will make a Lease for years and the Lessee enters Latch 53. 1 Leon. 121. Lit. Sect. 588. 't is not a Disseisin but at the Election of him who hath the Freehold and even in such Case if the Tenant of the Freehold should make a Grant of the Land 't is good though not made upon the Land it self for he shall not be taken to be out of possession but at his own Election 'T is like the common Case of a Mortgagee for years where the Mortgagor continues in possession twenty years afterwards and pays the Interest and in that time hath made Leases and levyed a Fine this shall not barr the Mortgagee for the Mortgagor is but Tenant at Will to him The Trustees need not make any claim in this Case because there was no transmutation of the possession so they could take no notice of the Fine 'T is true John Basket entred by their consent but still as Tenant at Will to them and the Acts done by him after his Entry will not didest this Term for though he made a Bargain and Sale of the Lands yet nothing will pass thereby but what of right ought to pass He likewise demised the Lands to Vndertenants for years but 't is not found that they entred but admitting they did enter yet that could not displace this Term for these Tenants claimed no more than for one or two years and made no pretence to the whole Term. But if by either of these Acts the Term should be divested yet still it must be at the election of those who have the Interest in it Dyer 61 62 173. The Case of * Cro. Car. 302. 1 Rol. Abr. 661. Blunden and Baugh which is grounded upon Littleton's Text Sect. 588. is an Authority to this purpose which was The Father was Tenant in Tail and his Son was Tenant at Will who made a Lease for years then both Father and Son join in a Fine to the use of the Son for Life and to Elizabeth his Wife for Life the Remainder to the Heirs Males of the Body of the Son who died without Issue Male the Lessee being in possession made a Conveyance of the Estate by Bargain and Sale to Charles Lord Effingham who was Son and Heir of the Tenant in Tail who made a Lease to the Plaintiff who was ousted by the
same to Mrs. Berkley for Life remainder over to Henry Killigrew in Tail and that he made Mrs. Berkley Executrix of his Will which was found in haec verba That afterwards in the year 1645. the said Sir Henry Killigrew made aliud Testamentum in Writing but what was contained in the said last mentioned Will juratores penitus ignorant They find that Sir Henry Killigrew in the year 1646. died seised of those Lands and that Mrs. Berkley conveyed the same to Mr. Nosworthy 's Father whose Heir he is and that the Defendant Sir William Basset is Cosin and Heir to Sir Henry Killigrew c. The Question upon this special Verdict was whether the making of this last Will was a revocation of the former or not It was argued this Term by Mr. Finch and in Michaelmas Term following by Serjeant Maynard for the Plaintiff that it was not a revocation In their Arguments it was admitted that a Will in it's nature was revocable at all times but then it must be either by an express or implied revocation That the making of this latter Will cannot be intended to be an implied revocation of the former for if so then the Land must also be supposed to be devised contrary to the express disposition in the first Will and that would be to add to the Record which finds Viz. that what the last Will was penitus ignorant It is possible that a subsequent Will may be made so as not to destroy but consist with a former for the Testator may have several parcels of Land which he may devise to many persons by divers Wills and yet all stand together A man may likewise by a subsequent Will revoke part and confirm the other part of a former Will and therefore admitting there was such a Will in this case 't is still more natural that it should confirm than revoke the other If the Testator had purchased new Lands and had devised the same by a subsequent Will no person will affirm that to be a revocation of the former Will When a Man hath made a disposition of any part of his Estate 't is a good Will as to that part so is likewise the disposal of every other part they are all several Wills tho' taken altogether they are an intire disposition of the whole Estate Nothing appears here to the contrary but that the latter Will may be only a devise of his personal Estate or a confirmation of the former which the Law will not allow to be destroyed without an express revocation The Case of Coward and Marshal is much to this purpose Cro. Eliz. 721. which was a devise in Fee to his younger Son and in another Will after the Testators Marriage to a second Wife he devised the same Lands to his Wife for Life paying yearly to his younger Son 20 s. It was the Opinion of Anderson and Glanvil that both these Wills might stand together and that one was not a revocation of the other because it appeared by the last Will that he only intended to make a Provision for his Wife but not to alter the Devise to his Son So where a Man had two Sons by several Venters Cro. Car. 24. Hodgkinson vers Whood Co. Lit. 22. b. 1 Co. 104. a. 319. b. and devises the Lands to his eldest Son for Life and to the Heirs Males of his Body and for default of such Issue to the Heirs Males of his second Son and the Heirs Males of their Bodies Remainder to his own right Heirs and then made a Lease of 30 years to his youngest Son to commence after the death of the Testator the youngest Son entred and surrendred the Term to his elder Brother who made a Lease to the Defendant and then dyed without Issue afterwards the youngest Brother entred and avoided this Lease made by his Brother It was held that the Lease thus made to him was not a revocation of the devise of the Inheritance to his Brother tho' it was to commence at the same time in which the devise of the Inheritance was to take effect but it was a revocation quoad the Term only that the elder Brother should not enter during that time for the devise shall not be revoked without express words and that tho' the Testator had departed with the whole Fee without reserving an Estate for Life to himself yet the Law created such an Estate in him till the future Vse should commence and in such case the right Heirs cannot take by Purchase but by Descent so that here the Inheritance in Fee simple was not vested in the elder Brother by Descent for then the Lease which he made would be executed out of the Feé and the younger Brother would be bound thereby But in the Case at the Bar there is no colour of a Revocation 1. Vpon the nature of the Verdict to which nothing can be added neither can it be diminished for whatever is found must be positive and not doubtful because an Attaint lies if the Verdict be false Therefore the Court cannot take notice of that which the Iury hath not found Now here the entry of the Iudgment is Viz. Quibus lectis auditis per Curiam hic satis intellectis c. But what can be read or heard where nothing appears That Case in the Year-Book of the 2 R. 3. 2 R. 3. f. 3. comes not up to this question it was an Action of Trespass for the taking of his Goods The Defendant pleaded that the Goods did appertain to one Robert Strong who before the supposed Trespass devised the same to him and made him Executor c. The Plaintiff replied that the said Strong made his last Will and did constitute him Executor And upon a Demurrer to this Replication because he had not traversed that the Defendant was Executor it was argued for the Plaintiff that this last Will was a Revocation of the former for tho' there were no express words of Revocation yet by the very making another the Law revoked the former and to prove this two Instances were then given viz. That if a Man devise his Lands to two and by another Will gives it to one of them and dies he to whom 't is devised by the last Will shall have it So likewise if the Testator by one Will giveth Lands to his Son and by another Will deviseth the same again to his Wife then makes an Alienation and taketh back an Estate to himself and dieth and in an Assise brought between the Widow and the Son he was compelled by the Court to shew that it was his Father's intention that he should have the Land otherwise the last Devisee will be entituled to it Now both these Instances are not sufficient to evince that the last Will in this Case was a revocation of that under which the Plaintiff claims because those Wills were contradictory to each other for by one the Land was devised to the Son and by the other to
the Wife they both had their existence at one and the same time and it appear'd they were made to distinct purposes but here no body can tell what was designed or intended by the Testator in this subsequent Will And therefore it hath been held Cro. Car. 51. Eyres Case Godolph 443. Perkins 92. b. that where a Man devised Legacies to his two Brothers and afterwards in his sickness was asked to leave Legacies to his said Brothers he replied he would leave them nothing but devised a small Legacy to his Godson and died This Discourse was set down in a Cocidil which together with the Will was proved in common form This Codicil was not a revocation of the Legacies given to the Brothers because the Testator took no notice of the Will which he had made in the time of his Health and non constat what he intended by these words which were set down in the Codicil If therefore doubtful words shall not make a revocation of a former Will a fortiori a subsequent Will especially when the contents of such Will doe not appear shall not revoke a former It was argued for the Defendant E contra And The only Objection is That a latter Will being made and it not appearing to the Iury what was contained in that Will it can be no revocation because no express words of revocation can be found or any thing which is contradictory to the first Will and without the one or the other a former Will cannot be revoked But this is contrary to all the Authorities in the Books Linwood 175. Swinb 7 part Sect. 14. 2 H. 5.8 pl. 3. Offiice of Ex. 443. which shew that a Testament which is good in the beginning may become void by making of a subsequent Will by words of revocation or by words contradicting each other for in such cases 't is not doubted but the first Will is revoked But the meaning must be that by the very making of a latter Will the first is become void This may be collected from the nature of a Will which a Man hath power to alter in part or in all at any time during his Life but when he makes a new Will it must be presumed that he declared his whole mind in it for if his Intentions are to alter any part the Law hath appointed a proper Instrument for that purpose which is a Codicil but when he maketh aliud Testamentutum 't is a sign that he intended nothing of his former Will should take any effect when he had so easie a method to alter it in part Every subsequent act of the Testator shews that he intends a revocation either by word or deed and there is great reason why it should be so because every revocation of a Will is in the nature of restitution to the Heir It cannot be denied but that a Will may be revoked by words without writing before the making of the Statute against Frauds 1 Rol. Abr. 614. Dyer 310. b. c. As if a Man should say that he would alter his Will when he came to such a place and he should dye before he came thither this is a revocation But it never was yet controverted but a revocation may be by Deed as if a Man devise Lands to another 1 Rol. Abr. 614. and afterwards makes a Feoffment to the use of his Will this was always held a revocation So it is if Lands which are well given by a Will are afterwards by another Will devised to the Poor of the Parish 1 Rol. Abr. 614. pl. 4. tho' this last Will is void because the Devisees have not a capacity to take yet 't is a revocation of the first Will and shall a Will which is lost be of less authority than such which is void 'T is not denied but that there may be a subsequent Will which may not contradict the first so is Coward 's Case where both Wills did appear to be consistent but that is not parallel with this because the Iury hath found that the Testator made aliud Testamentum which word aliud imports a distinct Will from the former 'T is agreed also that a Man may make many Wills and that they may stand together and it must also be agreed that such are but partial Wills because they are but pieces of the whole tho' written in several papers but when 't is found in general that aliud Testamentum was made it must naturally be intended of his whole Estate The Case in the Year Book of Richard III. is an Authority in point where in Trespass the Defendant justified the taking of the Goods by vertue of a Will by which they were devised to him and of which Will he was made Executor The Plaintiff replied that the Testator made another Will and thereby did constitute him Executor and this was held a good Replication without a Traverse that the Defendant was Executor because by the making of the second Will the other was void in Law and therefore the shewing that he was Executor was not to avoid the first Will which the Law doth adjudge to be of no force but to make to himself a Title to the Goods taken out of his possession If a Man should make twenty Codicils without dates they may all stand together but if he make two Wills without dates they are both void the reason is because by the making of the later Will the first is destroyed and it being incertain which is the last rather than the Rules of Revocation should be broken they adjudge both to be void It cannot be reasonably objected that this later Will may devise the same Lands to the same person for why should a Man be thought so vain Besides if it was so the Plaintiff should have claimed under that Will But this cannot be the same Will because 't is contrary to the Verdict which hath not found it to be idem but aliud Testamentum besides 't is in the Case of an Heir who shall not be disinherited by an intendment that the later Will is the same with the first Neither can the Statute of Wills have any influence upon this Matter 32 H. 8. c. 1. 34 H. 8. c. 5. 'T is true at the Common Law no Land could be devised by a Will but now by the Statutes of H. 8. Lands c. in Socage may be devised by Will and if held in Knights Service then only two parts in three Godolph 299. but it must be by the last Will. Now how can any Man say that this shall be a Devise of the Lands by the last Will of the Testator when the Iury find he made aliud Testamentum the Contents whereof are not necessary to be shewed because the Defendant claims as Heir and not as Executor It must not be intended that this Will shall confirm or stand with the other because the Law is otherwise and therefore if the Plaintiff would have supported his Will by
Dorothy Margery survived and is since dead The Question was whether upon this Reservation the Beast of any person being upon the Land may be distreined for an Heriot Mr. Pollexfen argued that it could not because the words in the Reservation ought to be taken very strictly and not to be carryed farther than the plain expression Where words are doubtful they have been always expounded against the Lessor Cro. Eliz. 217. 2 Roll. Abr. 448. Latch 99. as if a Lease be made for years reserving a Rent durante termino to the Lessor his Executors or Assigns the Lessor dies his Heir shall not have the Rent because 't is reserved to the Executors But here is no room for any doubt upon these words for if a Lease for years be made in which there is a Covenant that the Lessee shall pay the Rent without any other words this determines upon the death of the Lessee So where a Lease was made for 99 years if A. B. C. 2 Rol. Abr. 451. Hetley 58. Cro. Car. 314. or any of them should so long live reserving Rent to him and his Executors and also at or upon the death of either his or their best Beast in the name of an Heriot provided that if B. or C. die living A. no Heriot shall be paid after their deaths A. assigns his Term and the Beast of the Assignee was taken for an Heriot but adjudged that it could not for the words his or their shall not be carried farther than to the persons named in the Limitation The Books that affirm that a Man may seize for an Heriot Service cannot be brought as Authorities in this Case because they are all upon Tenures between Lord and Tenant and not upon particular Reservations as this is The old Books say that if a Tenant by Fealty and Heriot-Service Broke tit Heriot 2. made his Executor and died that the Lord might seize the best Beast of his Tenant in the Hands of the Executor and if he could not find any Beast then he might distrain the Executor Plo. Com. 95. and the reason of this seizure was because immediately upon the death of the Tenant a Property was vested in the Lord but it was held always unreasonable to put him to distrain when he might seise And it is now held that for Heriot-Service the Lord may either distrain or seise but then if he makes a seisure Cro. Car. 260. Jones 300. it must be the very Beast of the Tenant but if he distrain he may take any persons Cattle upon the Land So that admitting this to be Law yet it proves nothing to this matter because such Services being by Tenure shall not be extended to those which are created within time of memory upon particular reservations for by those ancient Tenures the Lords had many Priviledges which cannot be upon Reservations Besides the seisures in those Cases were by the Lords who continued so to be at the very time of the seisure but in our Case the Lease is determined by the death of the last Life so the Priviledge is lost and then it must stand upon the particular words in the Deed. Sed adjornatur into the Exchequer Chamber the Iudges being divided in Opinion Vid. 2 Sand. 165. Shipley versus Chappel Pasch 3 Jac. Rot. 404. THE Plaintiff Shipley as Administrator of Hannah his Wife Condition of two parts in the disjunctive and one part becomes impossible to be done yet the other must be performed according to the subsequent matter brought an Action of Debt upon a Bond against Chappel an Attorny for 140 l. The Defendant craved Dyer of the Condition which was Viz. Whereas Hannah Goddard who was Wife to the Plaintiff and Thomas Chappel of Greys-Inn in the County of Middlesex are Coparceners according to the Common-Law of one House with the Appurtenances in Sheffeild in the possession of William White and whereas the said Hannah Goddard hath paid unto Thomas Chappel the Father for the use of his Son the Sum of 72 l. in consideration that the said Thomas Chappel the Son when he attains the Age of 21 years which will be about Midsomer next do by good Conveyance in the Law at the costs and charges of the said Hannah Goddard convey his said moiety of the said House with the Appurtenances unto her and her Heirs Now the Condition of this Obligation is such That if the said Thomas Chappel the Son shall at the Age of 21 years convey his said moiety of the said House or otherwise if the said Thomas Chappel the Father his Heirs Executors or Administrators shall pay or cause to be paid the sum of 72 l. with lawful Interest for the same unto the said Hannah Goddard her Executors Administrators or Assigns that then this Obligation to be void Then he pleaded that his Son Thomas Chappel was Coparcener with Hannah Goddard as Co-heires of Elizabeth Goddard that Thomas came of Age and that before that time Hannah died without Issue The Plaintiff replied that true it is that before Thomas Chappel the Son came of Age the said Hannah died without Issue of her Body that Elizabeth Goddard before the making of the said Bond died seised in Fee of the said Messuage but that she first married with one Malm Stacy by whom she had Issue Lydia that Malm her Husband died and Elizabeth married John Goddard by whom he had Issue Hannah their only Daughter and Heir that John Goddard died and that Lydia Stacy married the Defendant Thomas Chappel by whom he had Issue Thomas Chappel his Son that Lydia died in the life-time of Elizabeth that Thomas Chappel hath not paid the 72 l. to Hannah in her life time or to John Shipley after her death The Defendant demurred and the Plaintiff joyned in Demurrer The Question was since the word Heirs in the Condition being a word of Limitation and not of any designation of the person whether the death of Hannah Goddard before Chappel the Son came of Age and who was to make the Conveyance shall excuse the Defendant from the payment of the Mony Those who argued for the Defendant 5 Co. 21. b. chiefly relied upon Laughter's Case which was viz. Laughter and Rainsford were bound that if R. after marriage with G. together with the said G. shall sell a Messuage c. if then R. do or shall in his life-time purchase for the said G. and her Heirs and Assigns Lands of as good value as the Mony by him received by the said Sale or leave her as much Mony at his decease then c. G. died R. did not purchase Lands of an equal value with that he sold and upon Demurrer it was held that where a Condition consisteth of two parts in the disjunctive and both possible at the time of the Bond made and afterwards one is become impossible by the act of God there the Obligor is not bound to perform the other part because the Condition is made for
the benefit of the Obligor and shall be taken most beneficially for him who had election either to perform the one or the other to save the penalty of the Bond. But the Council for the Plaintiff said that the whole intent of the Condition in that Case was to provide a Security for G. who died before her Husband so that no body could be hurt for the non-performance of that Condition there being no manner of necessity that any thing should be done in order to it after her decease 'T is quite otherwise in the Case at Bar for Hannah Goddard paid Mony for the House and certainly it was never intended that Chappel the Father to whom the Mony was paid should have both House and Mony If she had lived the House ought to have been conveyed to her now she is dead the Mony ought to be paid for 't is not lost by her death In Laughter's Case the person who was to do the thing was the Obligor himself but here the Father undertakes for his Son that he should convey when he came of Age or to repay the Mony so that 't is not properly a Condition in the disjunctive for 't is no more than if it had been penn'd after this manner Viz. The Father undertakes for his Son that he shall convey at the Age of 21 years if he refuse then the Father is to repay what mony he received Besides Cro. Eliz. 399. Laughter's Case is Reported by Iustice Croke and therein he cites two other Cases of Chew and Baker That of Chew was viz. A. promised B. that if C. did not appear at Westminster such a day he would pay him 20 l. The Defendant pleaded that C. died before the day and ruled to be no Plea for he ought to pay the Mony which Case is parallel to this for 't is the same in Reason and Sense That of Baker was viz. A Man was bound that A. should appear the first day in the next Term at the Star-Chamber or he would pay 20 l. A. died before the day so as by the act of God he could not appear yet it was adjudged that the Mony must be paid The like Case was adjudged between Huntley and Allen in the Common-Pleas in my Lord Hale 's time 't is entred Pasch 1658. Rot. 1277. The Rule in Laughter's Case cannot be denied viz. where the Condition is in the disjunctive consisting of two parts and one becomes impossible by the act of God the Obligor is not bound to perform the other but then it must be governed by the subsequent matter As in Greningham's Case Cro. Eliz. 396. Moor 395. viz. Debt upon Bond conditioned that if the Defendant delivered three Bonds to the Plaintiff wherein he was bound to the Defendant or a Release of them as should be advised by the Plaintiff's Council before such a day then c. The Defendant pleaded that neither the Plaintiff or his Council did advise a Release before the day c. and upon Demurrer it was adjudged that the Plea was good for the Defendant had an election to deliver or release as the Plaintiff should devise which if he will not do the Defendant is discharged by the neglect of the Plaintiff for the Defendant being at his choice to perform the one thing or the other 't is not reason that the Plaintiff should compel him to perform one thing only It was argued on the other side E contra that this is a disjunctive condition and not only an undertaking of the Father for the Son Where a Condition is to perform two things and if either be done no Action will lye such Condition is in the disjunctive as in this Case if the Son had conveyed or the Father repaid the Mony By the Condition of this Bond the Father did as much undertake for his Son as Laughter did for Rainsford viz. to convey the House or pay the Mony to Hannah Goddard now the last part of the Condition being discharged by the Act of God he is acquitted of the other Suppose the Condition had been single to convey to Hannah Goddard if she die the Bond is void There is an Authority to this purpose Cro. Eliz. 380. Reported by Iustice Croke which was an Action of Debt was brought by the Plaintiff as Executor c. The Condition of the Bond was for the yearly payment of a Sum of Mony twice in a year viz. at Michaelmas and Lady day during the Life of a Lady or within 30 days after either of the said Feasts the Lady died after one of the Feasts but within the 30 days it was adjudged that by her death that payment which was due at the Feast preceding was discharged In the Case at Bar the Condition is that if the Son should not convey when of Age or otherwise if the Defendant re-pay c. Now certainly these words or otherwise make the Condition disjunctive 'T is like the common Case of Bail entred into in this Court whereby the Parties undertake that the Defendant shall render himself to Prison if condemned in the Action or they shall pay the condemnation mony this is a disjunctive condition and if the Defendant dye before the return of the second Sci. Fa. the Bail are discharged Iustice Allibon said Roll. Abr. tit condition 450. pl. 4. that if a condition be to make an Assurance of Land to the Obligee and his Heirs and the Obligee dies before the Assurance made yet it shall be made to the Heir for this copulative is a disjunctive Sed Adjornatur Franshaw versus Bradshaw Mich. 1 Jac. Rot. 45. DEbt upon a Iudgment obtained in this Court 34 Car. 2. Matter of Form not amendable upon Demurrer setting forth the said Iudgment c. Sicut per Recordum processum inde remanen ' in eadem Curia nuper Domini Regis coram ipso Rege apud Westmonast plenius liquet apparet And upon a Demurrer to the Declaration this Objection was made viz. It doth not appear that the Iudgment was in force or where the Reeord was at the time of this Action brought he should have declared Coram ipso nuper Rege apud Westm sed jam coram Domino Rege nunc residen ' c. plenius liquet c. The Court held it was but matter of form but being upon a Demurrer it was not amendable Letchmere versus Thorowgood al' Vic. London TRespass by the Assignees of Commissioners of Bankrupcy for taking of their Goods When a Judgment is once executed the Goods are in Custodia Legis and shall not be taken away by an Exchequer Process or Assignment of Commissioners of Bankrupts upon not Guilty pleaded the Iury find a special Verdict the substance of which was viz. one Toplady a Vintner on the 28th of April became a Bankrupt against whom a Iudgment was formerly obtained the Iudgment Creditor sued out a Fi. Fa. and the Sheriffs of London by virtue thereof did
on the 29th day of April seize the Goods of the said Toplady that after the seizure and before any Venditioni exponas viz. 4 Maij an Extent which is a Prerogative Writ issued out of the Exchequer against two persons who were indebted to the King and by inquisition this Toplady was found to be indebted to them whereupon parcel of the Goods in the Declaration was seized by the Sheriffs upon the said Extent and sold and the Mony paid to the Creditors but before the said Sale or any execution of the Exchequer Process a Commission of Bankrupcy was had against Toplady and that the Commissioners on the second of June assigned the Goods to the Plaintiff The Question was whether this Extent did not come too late And it was held it did or whether the Fi. Fa. was well executed so that the Assignees of the Bankrupts Estate could not have a Title to those Goods which were taken before in Execution and so in Custodia Legis And it was held that they had no Title Fitzgerald versus Villiers WRIE of Error upon a Iudgment in Dower Infant must appear by Guardian and the Error assigned was that the Tenant in Dower was an Infant and no Warrant was alledged of the admission of any Guardian 29 Assise pl. 67. Bridg. 74. Lib. Entr. 45. Hut 92. 4 Co. 53. Lit. 92. Hetl. 52. 3 Cro. 158. Moor 434. Hob. 5. that it might appear to be the act of the Court 't is true an Infant may sue by Prochein Amy but shall not appear by Attorny but by Guardian because 't is intended by Law that he hath not sufficient discretion to chuse an Attorny therefore 't is provided that he appear per Guardianum which is done by the Court who are always careful of Infancy and a special Entry is made upon the Roll. Viz. Per Guardianum ad hoc per Curiam admissum c. 2. The Appearance is by the Guardian in his own Name Viz. Et praedicta Katherina Fitzgerald per Richardum Power Guardianum suum venit dicit quod ipse c. it should have been in the name of the Party quod ipsa c. Adjurnatur Harrison versus Austin A Settlement was made as followeth Viz. What words amount to a Covenant to stand seised That if I have no Issue and in case I dye without Issue of my Body lawfully begotten then I give grant and confirm my Land c. to my Kinswoman Sarah Stokes to have and to hold the same to the use of my self for Life and after my decease to the use of the said Sarah and the Heirs of her Body to be begotten with Remainders over c. The Question was whether this did amount to a Covenant to stand seised so as to raise an use to Sarah without transmutation of the possession The Objection against it was Sid. 26. Moor 687. Dyer 96. 2 Roll. Abr. 786. Winch 59. Plowd 300. that Vses are created chiefly by the intention of the Parties and that by these words grant and confirm the Feoffor did intend the Land should pass at Common Law so it could not be a Covenant to stand seised 't is like the Case where a Letter of Attorny is in the Deed or a Covenant to make Livery there nothing shall pass by way of use but the possession according to the course of the Common Law and therefore there being neither Livery and Seisin or Attornment no use will pass to Sarah It cannot be a Bargain and Sale for that is only where a Recompence is on each side to make the Contract good besides 2 Inst 672. the Deed is not inrolled To this it was answered 1 Vent 137. that it shall be construed to be a Covenant to stand seised though the formal words are wanting to make it so and for that purpose it was compared to Fox 's Case 8 Co. 93. who being seised in Fee devised his Land to C. for Life remainder over for Life reserving a Rent and afterwards by Indenture in consideration of Mony did demise grant and set the same Lands to D. for 99 years reserving a Rent the Lessee for Life did not attorn in which Case there was not one word of any use or any attornment to make it pass by Grant and the Question was whether this Lease for years shall amount to a Bargain and Sale so that the Reversion together with the Rent shall pass to the Lessee without Attornment Hob. 277. and it was held that by construction of Law it did amount to a Bargain and Sale for the words import as much And in this Case it was adjudged that it was a Covenant to stand seised Hexham versus Coniers IN Ejectment the Plaintiff declared de uno Messuagio sive Tenemento An Ejectment will lye for a Tenement and had a Verdict but Iudgment was arrested because an Ejectment will not lye of a Tenement for 't is a word of an uncertain signification it may be an Advowson House or Land but it is good in Dower so is Messuagium sive Tenementum vocat ' the Black Swan for this addition makes it certain that the Tenement intended is a House Rex versus Bunny A Motion was made for a Melius inquirendum to be directed to a Coroner who had returned his Inquisition upon the death of Bunny that he was not compos mentis when in truth he was Felo de se But it was opposed by Serjeant Pemberton and Mr. Pollexfen who said that the Law gives great credit to the Inquest of a Coroner and that a Melius inquirendum is seldom or never granted tho' it appear to the Court upon Affidavits that the Party had his Senses Mod. Rep. 82. It hath been granted where any fault is in the Coroner or any incertainty in the Inquisition returned That there is such a Writ it cannot be denied Cro. Eliz. 371. but 't is generally granted upon Offices or Tenures and directed to the Sheriff 3 Keb. 800. but never to a Coroner in the case of a Felo de se who makes his Enquiry super visum Corporis DE Term. Sancti Mich. Anno 4 Jac. II. in Banco Regis 1688. In Trinity-Vacation last Mr. Justice Holloway and Mr. Justice Thomas Powell had their Quietus and Mr. Serjeant Baldock and Mr. Serjeant Stringer were made Justices of this Court And Mr. Justice Allibon who was a Roman Catholick died in the same Vacation and Sir John Powell one of the Barons of the Exchequer was made a Justice of this Court Sir Thomas Jennor another of the Barons of the Exchequer was made a Justice of the Common-Pleas and Mr. Serjeant Rotheram and Mr. Serjeant Ingoldby were made Barons of the Exchequer Wright Chief Justice Powel Justices Baldock Justices Stringer Justices Shuttleworth versus Garnet Intratur Trin. 1 Willielmi Mariae Rotulo 965. THE Defendant was Tenant of Customary Lands held of the Manor of A. of which Manor B. was Lord
Indebitatus Ass will lye for a Fine upon an Admission c. That a Fine was due to him for an admission That upon the death of the said Lord the Manor descended to W. as his Son and Heir who died and the Plaintiff as Executor to the Heir brought an Indebitatus Assumpsit for this Fine He declared also that the Defendant was indebted to him in 25 l. for a reasonable Fine c. The Plaintiff had a Verdict and entire Damages and it was now moved in arrest of Iudgment that an Indebitatus will not lie for a Customary Fine because it doth not arise upon any Contract of the Parties but upon the Tenure of the Land for upon the death of the Lord there is a Relief paid for there must be some personal Contract to maintain an Action of Debt or an Indebitatus Assumpsit 2 Cro. 599. Jones 339. and therefore it was held that where the Plaintiff locasset a Ware-house to the Defendant he promised to pay 8 s. per Week An Assumpsit was brought for this Rent and a Verdict for the Plaintiff And a Motion was made in Arrest of Iudgment that this was a Lease at Will and the weekly payment was in the nature of a Rent and it was agreed that an Assumpsit would not lie for a Rent reserved because it sounds in the Realty but because it was only a Promise in consideration of the occupying of the Warehouse the Action was held to be well brought 2. Where the Cause of an Action is not grounded upon a Contract but upon some special Matter there an Indebitatus Assumpsit will not lie and therefore it will not lie upon a Bill of Exchange or upon an Award or for Rent though there is a Privity both of Contract and Estate without a special Assumpsit E contra E contra It was argued that the Action lies for though a Fine savours of the Realty yet 't is a certain Duty In all Cases where Debt will lie upon a simple Contract there an Assumpsit will lie likewise 't is true this doth concern the Inheritance but yet 't is a Contract that the Tenant shall be admitted paying the Fine It hath been also maintained for Mony had and received out of the Office of Register for the Plaintiffs use and for Scavage Mony due to the Mayor and Commonalty of London 3 Keb. 677. which is also an Inheritance 'T is a Contract implyed by Law and therefore the Action is well brought Afterwards in Michaelmas Term 1 Willielmi Mariae by the Opinion of Iustice Dolben 2 Leon. 79. Eyre and Gregory Iudgment was given for the Plaintiff But the Chief Iustice was of another Opinion for he held that if the Defendant had died indebted to another by Bond and had not Assets besides what would fatisfie this Fine if the Executor had paid it to the Plaintiff it would have been a Devastavit in him Suppose the Defendant promiseth that in consideration that the Plaintiff would demise to him certain Lands that then he would pay the Rent If the Defendant pleads Non Assumpsit Cro. Car. Acton versus Symonds the Plaintiff must prove an express Promise or be Non suit Also here is no Tenure or Custom set out Yet by the Opinion of the other three Iustices the Plaintiff had his Iudgment Rex versus Johnson INformation upon the Statute of 29 30 Car. 2. cap. 1. Pardon after a Verdict for the King excuseth the Forfeiture prohibiting the Importation of several French Commodities and amongst the rest Lace under the Penalty of 100 l. to be paid by the Importer and 50 l. by the Vendor and the Goods to be forfeited The Information sets forth that a Packet containing so many yards of Lace was imported by the Defendant from France and that he did conceal it to hinder the Seisure and that he did privately sell it contra formam Statuti Vpon Not-Guilty pleaded the King had a Verdict and on the 2d of October there came forth a general Pardon in which were these Words viz. That the Subjects shall not be sued or vexed c. in their Bodies Goods or Chattels Lands or Tenements for any Matter Cause or Contempt Misdemeanour Forfeiture Offence or any other thing heretofore done committed or omitted against us Except all Concealments Frauds Corruptions Misdemanours and Offences whereby we or our late Brother have been deceived in the Collection payment or answering of our Revenues or any part thereof or any other Mony due or to be due to us or received for us or him and all Forfeitures Penalties and Nomine Poena's thereupon arising and all Indictments and Informations or other Process and Proceedings now depending or to be depending thereupon The Question now was whether this Forfeiture was excused by this Pardon The Attorney General argued that it was not because an Interest is vested in the King by the Iudgment and that no particular or general Pardon shall divest it without words of Restitution So was Tooms's Case who had Iudgment against another 1 Sand. 361. and then became Felo de se his Administrator brought a Scire Facias quare Executionem non haberet The Debtor pleaded that after the Iudgment the Intestate hanged himself which was found by the Coroners Enquest returned into this Court. The Plaintiff replied the Act of Pardon But it was adjudged for the Defendant for when the Inquisition was returned then the Debt was vested in the King which could not be divested without particular words of Restitution and which were wanting in that Act of Pardon The most proper word in the Body of this Pardon which seems to excuse the Defendant is the word Offence but the same word is likewise in the Exception viz. Except all Offences c. in collecting or paying of Mony due to us and all Forfeitures c. Now the concealing of forfeited Goods from Seisure is an Offence excepted for 't is a remedy for the King's Duty of which he was hindred by the Concealment 'T is true the first part of the Pardon excuseth all Misdemeanours comitted against the King in his standing Revenue but this Exception takes in all Concealments and Frauds in answering of the Revenue and this Information is principally grounded upon Fraud 5 Co. 56. so that the Exception ought to be taken as largely for the King as the Pardon it self to discharge the Subject No Fraud tending to the diminution of the Revenue is pardoned for it excepts not only all Concealments in collecting the Revenue but other Mony due or to be due to the King If therefore when the King is entituled by Inquisition Office or Record there must be express and not general words to pardon it and since this Fact was committed before the Pardon came out and so found by the Iury whose Verdict is of more value than an Enquest of Office so that the King by this means is entituled to the Goods by Record
so his Son is justly and rightly sued as Son and Heir In some Cases the persons are to be named not by way of a Title but as a Pedigree as if there be Tenant for Life the Reversion in Fee to an Ideot and an Vncle who is right Heir to the Ideot levied a Fine and died living the Ideot leaving Issue a Son named John who had Issue William who entred the Question was whether the Issue of the Vncle shall be barred by this Fine It was the Opinion of two Iudges that they were not barred because the Vncle died in the life-time of the Ideot and nothing attached in him March 94. Cro. Car. 524. and because the Issue claim in a collateral Line and do not name the Father by way of Title but by way of Pedigree But Iustice Jones who hath truly Reported the Case Jones 456. was of Opinion that the Issue of the Vncle were barred because the Son must make his Conveyance from the Father by way of Title The Iury have found that the Reversion did descend to the Defendant as Heir to the last John 't is true it descends as a Reversion but that shall not charge him as Heir to the Father Jenk's Case 1 Cro. for the other was seised of the Estate Tail which is now spent and the last who was seised of the Fee was the Father and so the Defendant must be charged as his Heir 'T is likewise true that where there is an actual Seisin you must charge all but in this Case there was nothing but a Reversion Tremaine Serjeant for the Defendant In this Case the Plaintiff should have made a special Declaration for the Estate-Tail and the Reversion in Fee are distinct and seperate Estates John the Nephew might have sold the Reversion and kept the Estate Tail if he had acknowledged a Statute or Iudgment it might have been extended and if so then he had such a Seisin that he ought to have been named A Man becomes bound in a Bond and died Debt is brought against the Heir it is not common to say that he had nothing by descent but only a Reversion expectant upon an Estate Tayl. In the Case of Chappel and Lee Covenant was brought in the Common-Pleas against Judith Daughter and Heir of Robert Rudge She pleaded Riens per descent Issue was joyned before Sir Francis North then Chief Iustice and it appearing upon Evidence that Robert had a Son named Robert who died without Issue a Case was made of it and Iudgment was given for the Defendant the Plaintiff took out a new Original and then the Land was sold so the Plaintiff lost his Debt Adjornatur Afterwards in Hillary Term a Gulielmi Mariae Iudgment was given for the Plaintiff by the Opinion of three Iustices against Iustice Eyre who argued that the Defendant cannot be charged as immediate Heir to his Father 't is true the Lands are Assets in his Hands and he may be charged by a special Declaration Dyer 368. pl. 460. In this Case the intermediate Heirs had a Reversion in Fee which they might have charged either by Statute Iudgment or Recognizance they were so seised that if a Writ of Right had been brought against them they might have joyned the Mise upon the Mere right which proves they had a Fee and though it was expectant on an Estate Tail 3 Co. 42. Ratcliff's Case yet the Defendant claiming the Reversion as Heir ought to make himself so to him who made the Gift The person who brings a Formeden in Descender must name every one to whom any Right did descend 8 Co. 88. F.N.B. 220. c. Rast Ent. 375. otherwise the Writ will abate A Man who is sued as Heir or who entitles himself as such must shew how Heir The Case of Duke and Spring is much stronger than this 2 Rol. Abr. 709. 2 Cro. 161. for there Debt was brought against the Daughter as Heir of B. She pleaded Riens per descent and the Iury found that B. died seised in Fee leaving Issue the Defendant and his Wife then with Child who was afterwards delivered of a Son who died within an hour and it was adjudged against the Plaintiff because he declared against the Defendant as Daughter and Heir of the Father when she was Sister and Heir of the Brother who was last seised But the other three Iudges were of a contrary Opinion The Question is not whether the Defendant is lyable to this Debt but whether he is properly charged as Heir to his Father or whether he should have been charged as Heir to his Nephew who was last seised It must be admitted that if the Lands had descended to the Brother and Nephew of the Defendant in Fee that then they ought to have been named but they had only a Reversion in Fee expectant upon an Estate Tail which was incertain and therefore of little value now though John the Father and Son had this Reversion in them yet the Estate Tail was known only to those who were Parties to the Settlement 'T is not the Reversion in Fee Bro. Fit Descent pl. 30.37 Ass pl. 4. but the Possession which makes the party inheritable and therefore if Lands are given to Husband and Wife in Tail the Remainder to the right Heirs of the Husband then they have a Son and the Wife dies and the Husband hath a Son by a second Venter and dies the eldest Son enters and dies without Issue and his Vncle claimed the Land against the second Son but was barred because he had not the Remainder in Fee in possession and yet he might have sold or forfeited it But here the Reversion in Fee is now come into possession and the Defendant hath the Land as Heir to his Father t is Assets only in him and was not so either in his Brother or Nephew who were neither of them chargeable because a Reversion expectant upon an Estate Tail is not Assets Iudgment was given for the Plaintiff DE Term. Sancti Mich. Anno 1 Gulielmi Mariae Regis Reginae in Banco Regis 1689. Young versus Inhabitants de Totnam AN Action was brought against the Hundred for a Robbery in which the Plaintiff declared that he was Robbed apud quendam locum prope Faire Mile Gate in such a Parish He had a Verdict And now Serjeant Tremaine moved in arrest of Iudgment and the Exceptions taken were these viz. 1. That it doth not appear that the Parish mentioned in the Declaration was in the Hundred 2. Neither doth it appear that the Robbery was committed in the High-way 3. The Plaintiff hath not alledged that it was done in the day time for if it was not the Hundred is not lyable by Law But these Exceptions were all disallowed because it being after a Verdict the Court will suppose that there was Evidence given of these Matters at the Trial so the Plaintiff had his Iudgment Eggleston al' versus Speke alias Petit.
first Son of the Body of the said Simon Leach my Brother lawfully to be begotten and to the Heirs Males of the Body of such first Son lawfully to be begotten with like Remainder in Tail Male to the second third fourth c. Sons and for default of such Issue to Sir Simon Leach my Kinsman being Son and Heir of Simon Leach of Cadley in the County of Devon ' Esquire deceased and to the Heirs Males of his Body lawfully to be begotten and for default of such Issue to the right Heirs of me the said Nicholas Leach for ever They find that Nicholas Leach died without Issue that Simon Leach his Brother and Heir with Remainder over in Contingency as aforesaid entered and afterwards married Anne the Daughter of Unton Croke and that after the said Marriage viz. 20 August 25 Car. 2. he executed a Deed purporting a * Two months before a Son was born Surrender of the said Lands and Tenements to Sir Simon Leach in manner following viz. To all Christian People c. I Simon Leach of Elsefield in the County of Oxon Esquire send greeting Know ye that I the said Simon Leach for divers good Causes and valuable Considerations me hereunto moving have granted surrendred remised released and for ever quit claimed and confirmed and by these Presents do grant surrender remise release and for ever quit claim and confirm unto Sir Simon Leach of Cadley in the County of Devon Knight of the Bath and his Heirs and Assigns for ever all and every the Mannors c. To have and to hold the same to the said Sir Simon Leach for ever They find that Simon Leach Brother of the Testator was not compos mentis at the time of the sealing and delivery of the said Surrender That on the 10th day of November 25 Car. 2. which was two Months after this Surrender made the said Simon Leach had Issue of his Body Charles Leach who is his Son and Heir that he after the death of his Father entred and made a Lease to Tompson by vertue whereof he was possessed until the Defendant Sir Simon Leach entred upon him c. Two Questions were made upon this Special Verdict 1. Whether this Surrender by a person Non compos mentis was void ab initio and so could pass no Estate to the Surrendree for if so then though the Ideot himself is estopped by his own Act yet that can be no Barr to him in the Remainder because the Act being void the Estate in Law still remains in him 2. If it is not void in its self then whether it is voidable after the death of the Party by Charles Leach he claiming by virtue of a collateral Remainder and not as Heir at Law to the Devisor As to the first Point it was argued that the Cases of Lunaticks and Infants go hand in hand and that the same Reasons govern both that the Law is clear that a Surrender made by an Infant is void therefore a Surrender made by a person Non compos mentis is also void Fleta lib. 1. c. 11. num 10. the reason is because they know not how to govern themselves And as Fleta saith Semper judicabuntur infra aetatem F.N.B. 202. a. Regist 238. b. if he makes any Conveyance of his Land the Law hath provided a remedial Writ even for himself to avoid his own Alienation His Feoffments are void 39 H. 6.42 Bract. fol. 12. no. 5. fol. 100 120. Brit. cap. 34. fol. 88. Perk. 5. pl. 21. and if Warranties are annexed those they are also void if he granteth a Rent-Charge out of his Land that is likewise void and if the Grantee should distrain for this Rent after the death of the Grantor his Heir shall have an Action of Trespas against him and therefore by parity of Reason this Surrender must be void In Fitzherbert Tit. Grantee pl. 80. there is a Case to this purpose viz. An Assize was brought against the Tenant supposing that he had no right of Entry unless under a Disseisor by whom the Brother of the Demandant was disseised The Tenant pleaded that the supposed Disseisor was the Father of the Demandant whose Heir he then was and that his said Father made a Feoffment of the Land to the Tenant with Warranty and demanded Iudgment c. The Demandant replied that his Father at that time was Non compos mentis and the Tenant was compelled to rejoin and take Issue upon the Insanity which shews that if he was Non compos he could not have made such a Feoffment So if he maketh a Feoffment in Fee and afterwards taketh back an Estate for Life Fitz. Remitter pl. 23. the Non compos shall be remitted to his ancient Title which shews likewise that such Feoffment was void for the Remitter supposeth a former Right 'T is incongruous to say that Acts done by persons of no discretion shall be good and valid in the Law such are Infants and Lunaticks and it stands with great reason that what they do should be void especially when it goes to the destruction of their Estates Therefore 't is held that if a person Non compos releaseth his right that shall not barr the King in his Life time but he shall seize the Land and if he die his Heir may bring the Writ Dum non fuit compos mentis and may enter 'T is for this reason that a Release made by an Infant Executor is no barr because it works in destruction of his Interest 5 Co. 27. Russel 's Case 34 Ass pl. 10. the reason is the same where a person Non compos maketh a Feoffment for that likewise destroys his Estate So likewise an Infant can neither surrender a future Interest by his acceptance of a new Lease Cro. Car. 502. nor make an absolute Surrender of a Term of which he is possessed for such a Surrender by Deed is void 'T is agreed that if a Man Non compos maketh a Feoffment by Letter of Attorny 't is meerly void because 't is not delivered to the Feoffee by the hands of the Feoffor but 't is said that if it be delivered by him in person then 't is only voidable at any time by Action or Entry Finch 's Law 102. And of this Opinion was Sir Henry Finch in his Discourse of the Law who in the Margen of his Book quotes several Authorities in the Year Books to justifie this Opinion and amongst the rest he cites Sir Anthony Fitzherberts Natura Brevium 35 Ass pl. 10. who taking notice of the old Authorities seems to reject their Reasons who affirm a person Non compos shall not avoid his own Act when he recovers his memory because he cannot then tell what he did when he was in his former Condition But certainly when he recovers his Iudgment he is then of Ability to consider what was done during his Insanity and to avoid such Acts by shewing how his indisposition came by the
not avoid such Acts done by their Ancestors as well as Privies in Blood because the Incapacity of the Grantor goes to both Those who argued on the other side held that the Acts of Infants and persons non compos were not void in themselves but only voidable E contra 'T is true some Deeds made by an Infant are void not meerly Cro. Car. 502. because executed by him for some are good and those only are void which are made to his prejudice Such also are void which give Authority to a third person to do an Act as if an Infant enter into a Bond Perk. Sect. 139. March 141. and give it to a Stranger to deliver to the Obligee when he shall attain his full Age this is void because the person derived his Authority from an Infant who by reason of his Nonage could not give such a Power but if the Infant himself had delivered the Bond to the Obligee it had been only voidable Lit. Sect. 259. The Father of the Demandant was an Infant when he sold his Estate 46 E. 3.34 his Son brought the Writ Dum fuit infra-aetatem against the Alienee and it was held good which would not have been allowed if the Grant had been void All the old Authorities prove that the Acts of Infants and Ideots are not void but voidable If an Infant is bound in an Obligation 't is not void Cro. Eliz. 127. 2 Inst 483. for he may agree to it when of Age he cannot plead Non est factum and he may refuse to plead his Infancy If he be entituled to a Term for years Cro. Eliz. 126. Cro. Car. 502. and maketh a Surrender by the acceptance of a new Lease 't is good if 't is for his advantage either by the lessening of the Rent or the encreasing of the Term but if he hath no benefit by it 't is voidable only So he may purchase Lands because the Law intends it for his benefit and he can receive no damage by such a Purchase for he may either perfect or avoid it at his full Age which shews that such Acts are not voidable ab intio but only voidable as the Case shall require The Statute of 23 H. 6. Enacts 23 H. 6. c. 10. That Sheriffs shall take no Bonds upon an Arrest but for the Appearance of the Party and to themselves only and that a Bond otherwise taken colore officii shall be void that is not in its self but by pleading the Statute for 't is not to be avoided by pleading Non est factum So upon the Statute of Additions 1 H. 5. c. 5. 3 Co. 59. a. where a Man is outlawed without the addition of his condition or place of abode in the original Writ such Outlawry shall be void not of its self but it may be avoided by Writ of Error In like manner there are many Authorities to prove that the Acts of a person non compos are not void but voidable So is the first Resolution in Beverly 's Case that a Deed or Feoffment made by him is to be avoided by any other person but not by himself Thus stood the Law in the time of E. 35 Ass pl. 10. 3. For in an Assize the Defendant pleaded that the Plaintiff had released to him by Deed who replied that at the time of the making of the Deed he was Non compos The Court of Common Pleas seemed then to be of Opinion that the Replication was not good which shews that the Deed in its self was not void 't is true the Assize was then adjourned because that Opinion was directly against the Register which is that the Writ of Dum non fuit compos may be brought by the person himself notwithstanding his own Alienation But this hath since been denied to be Law Cro. Eliz. 398. for in Debt upon Bond the Defendant pleaded that he was Non compos and upon a Demurrer the Plea was over-ruled And of this Opinion was Sir William Herle Chief Iustice of the Common Pleas in 5 E. 5 E. 3.70 3. which was long before the Book of Assize So the Law continued till the Reign of H. 35 H. 6. f. 42. 6. viz. that the person himself could not avoid his own Feoffment either by Entry or Action The Writs de Ideota inquirendo and Dum non fuit compos import the same thing viz. that Acts done by them are not void for the first recites that the Ideot alienavit and the other that the Lunatick * Dimisit is there intended where the Estate is conveyed by Livery or for life and Alienavit is a Conveiance by Feoffment 17 E. 2. Stamf. Praerog 34. Dimisit terras Now if their Acts had been void ab initio then they cannot be supposed either to alien or lease their Lands which shews that such Acts are only voidable And as a farther Argument to enforce this the Statute de Praerogativa Regis was mentioned which gives the Custody of the Ideots Lands to the King during their Lives provided that afterwards it be given to their right Heirs ita quod nullatenus per eofdem fatuos alienetur Now to what purpose were these Words added if such an Alienation was void in it self Besides the Cases of Ideots mentioned on the other side and Lunaticks are not parellel for an Ideot hath a different incapacity from one Non compos 't is perpetual in an Ideot and for that reason the Law gives the King an Interest in him But a person non compos may recover his Senses Co. Lit. 2. b. Fitz. tit Issue 53. he may purchase Lands may grant a Rent-charge out of his Estate and shall not plead his insanity to defeat his own act If therefore this Surrender was not void at the time of the execution thereof but voidable only during the Life of the Surrenderor by office found then the Question cannot properly be whether the Lessor of the Plaintiff shall avoid it for that would be to revest the Estate in some body but the Surrender was good and the Estate for Life was utterly determined so that nothing being left to support the contingent Remainders those are also destroied And to prove this Chudleigh 's Case was relied on which was Co. 120. Sir R. C. was seised in Fee of the Manor of Hescot in Devon and having Issue Christopher and three other Sons made a Feoffment to the use of himself and his Heirs on the Body of Mary then the Wife of Mr. Carew to be begotten and for default of such Issue then to the use of his last Will c. for ten years and after the Expiration of that Term then to his Feoffees and their Heirs during the Life of Christopher Remainder to the Issue Male of Christopher in Tail with like Remainder to his other Sons Remainder to his own right Heirs He died without Issue by Mrs. Carew But before Christopher had any Son born the
they are not properly sua 278 Exposition of Words and Sentences See Number Subsequent words may explain a former Sentence in a Deed but in Wills the first words guide all which follow 82 2. Action was brought by Original for that the Defendant prosecut ' fuit adhuc prosequitur in the Admiralty those words adhuc prosequitur shall not be construed to make it subsequent to the Original but must refer to the time of suing it forth 103 157 3. Doubtful Words must be Expounded always against the Lessor 230 4. To make an Assurance to the Obligee and his Heirs the Conjuction and shall be taken in the disjunctive 235 F. Fair See Trade IF the place where it should be kept is not limited by the Grant it may be kept where the Grantee will 108 False Imprisonment It will not lye against a Sheriff for taking the Body by vertue of a Casa upon an Erronious Judgment for the Execution is good till avoided by Writ of Error 325 Fees Of the Clerks of the Crown-Office the Court will not regulate upon a Motion but if oppressive they must be indicted for Extortion 297 Fines levied See Tenant at Will 6. One of the Cognisors died before the return of the Writ of Covenant 't is Error but not in the case of a Purchaser for a valuable consideratino for the Court will interpose 99 2. If the Cognisor doth dye after the Entry of the Kings-Silver the Fine is good 140 3. Writ of Covenant Teste 15th of January returnable in Crastino Purificationis taken by Dedimus 18th of Januarii The Cognizor died in Easter-Week following but four days before her Death the Kings-Silver was entred as of Hillary-Term precedent this was held a good Fine 141 4. Where a person is in possession by vertue of a particular Estate for Life and accepteth a greater Estate it shall not divest the Estate of those in Remainder for Life so as the same may be barred by Fine and Non-claim 195 5. Lease for one hundred years in Trust to attend the Inheritance cestuy que Trust being in possession Demises to another for fifty years and levied a Fine and the five years passed the Term for a hundred years is divested by this Fine and turned to a right and so barred 196 6. In what Cases a Fine is a Bar and what not 198 Fines upon Admittance See Admittance Copihold Debt 2. Infant 9. The Judges are to determine whether it be reasonable or not 134 2. Lord cannot enter for non-payment of an unreasonable Fine 134 Forfeiture If Tenant for years make a Feoffment 't is a Forfeiture but if he make a Lease and Release ' tho 't is of the same Operation yet 't is no forfeiture 151 Fraud See Evidence G. Grants Grantor and Grantee WHere an Interest is coupled with a Trust in a Grant it shall go to the Executor of the Grantee 43 2. Grants must be certain otherwise they are void 134 Grants of the King Not good for the sole Printing of Blank Bonds exclusive of all other Printers 75 2. A Grant to restrain trading to particular places is good 77 3. But of sole making Cards not good because it restrains a whole Trade ibid. 4. A Grant cannot divest the Subject of a Right enjoyed long before it was made ibid. 5. Cannot discharge a person of a Duty to which he is made lyable by a subsequent Act of Parliament 96 6. Difference between his Grants and Prohibitions 7. Where his Grants ought to be taken very strictly 168 8. In a Quo Warranto the Defendant pleaded that the King was seised in Fee of a Franchise who granted it to another Habendum the Hundred whether good or not 199 Gun See Iustice of Peace 3. Conviction before a Justice of Peace upon the Statute of H. 8. for keeping a Gun not having 100 l. per Annum quashed because it was said non habuisset instead of nunquam Habuit 100 l. per Annum 280 H. Habendum WHere it shall be said to explain the general Words preceding 81 2. Nothing passes in the Habendum but what was mentioned in the Premisses 199 Heir Error by the Plaintiff ut Consanguineus Haeres viz. Filius c. 't is sufficient without shewing the descent from more Ancestors 152 2. Where he shall take by Descent and where by Purchase 205 3. In a Bond where the word Heir is a word of Limitation and not a designation of the person 233 4. Reversion in Fee descended to an Heir after the Estate Tail spent and an Action was brought against him upon a Bond of his Ancestor 't is not necessary that the Plaintiff name all the intermediate Remainders but him who was last actually seized of the Fee 255 Heriot Lease for 99 years if A. B. C. so long live paying an Heriot upon the death of either A. assigns the term no Heriot shall be taken of the Assignee 231 2 May seize or distrain for Heriot Service if distrain it may be the Beast of any man upon the Land but if he seise it must be the very Beast of the Tenant ibid. 3. Where an Heriot is reserved upon a Demise it differs from those which are due by Tenure 231 4. Lease for 99 years if M. and D. so long live reserving an Heriot after death of either provided if D. survive no Heriot to be paid but M. survived the Court was divided whether a Heriot should be paid 230 Highways A Man cannot be exempted from repairing by the Grant of the King if made before the Statute of Ph. Mar. which charges him to repair 96 Homine Replegiando Brought for a Monster and upon the Return of the Sheriff that he had replevyed the Body he was bailed 121 2. Brought for a young Woman taken out of her Parents Custody and married against her Consent 169 Hue and Cry See Robbery Hundred Court This Court was first derived from the County Court 200 2 Hundreds were usually granted to Abbots and their Possessions coming to the Crown by dissolution of their Abbies are merged and cannot be regranted 200 I. Ideot HOW it differs from a Lunatick 43 2. The King hath power to grant his Estate to any person without Accompt to be given ibid. 3. Grant of an Ideot by the King the Grantee dieth his Executor hath an Interest in him ibid. Ieoffails See Indictment 8. Travers 4. Variance 2. None of the Statutes help an insufficient Indictment 79 2. Variance between original and declaration not aided by the Statute of Ieofails 136 3. Want of concluding without a Travers is but matter of form and aided 319 Indictment For using of Alias Preces than enjoined by the Book of Common Prayer it may be upon an extraordinary occasion and so no Offence 79 2. For scandalous words whether it lieth as it doth for Libels the one being a private the other a publick Offence 139 3. For Baretry in soliciting of a Suit against another who was not indebted to the person 97
said Feoffees made a Feoffment of the Land in Fee without any consideration afterwards Christopher had Issue two Sons Now the Vses limited by the Feoffment of Sir R. C. being only contingent to the Sons of Christopher and they not being born when the second Feoffment was made to their Father the Question now was whether they shall be destroied by that Feoffment before the Sons had a Being in Nature or whether they shall arise out of the Estate of the Feoffees after their Births And it was adjudged in the Exchequer Chamber that the last Feoffment had divested all the precedent Estates and likewise the Vses whilst they were contingent and before they had an existence and that if the Estate for Life which Christopher had in those Lands had been determined by his death before the birth of any Son the future Remainder had been void because it did not vest whilst the particular Estate had a being or eo instanti that it determined So in this Case Mr. Leach cannot have any future Right of Entry for he was not born when the Surrender was made so that the contingency is for ever gone Suppose a Feoffment in Fee to the use of himself and his Wife and to the Heirs of the Survivor The Husband afterwards makes another Feoffment of the same Lands Cro. Car. 102. and dies and the Wife enters the Fee shall not vest in her by this Entry for she had no right the Husband has destroyed the contingent use by the last Feoffment so that it could not accrew to her at the time of his death Nay tho' the particular Estate in some Cases may revive yet if the contingency be once destroyed it shall never arise again As where the Testator being seized in Fee of Houses 2 Sand. 380. devised the inheritance thereof to such Son his Wife should have after her Life if she baptized him by his Christian and Sir-Name and if such Son dye before he attain the Age of 21 years then to the right Heirs of the Devisor He died without Issue the Widow married again then the Brother and Heir of the Testator before the birth of any Son conveyed the Houses thus Viz. To the Husband and Wife and to their Heirs and levied a Fine to those uses Afterwards she had a Son baptised by the Testator's Christian and Sir-Name Then the Husband and Wife sold the Houses to one Weston and his Heirs and levied a Fine to those Vses It was adjudged that by the Conveyance of the Reversion by the Brother and Heir of the Testator to the Baron and Feme before the Birth of the Son her Estate for Life was merged and tho' by reason of her Coverture she might waive the Joint-tenancy 2 Roll. Abr. 796. Wigg versus Villiers and reassume the Estate for Life yet that being once merged the contingent Remainders are all destroied Curia Cro. Car. 502. The Grants of Infants and of persons non compos are parallel both in Law and Reason and there are express Authorities that a Surrender made by an Infant is void therefore this Surrender by a person non compos is likewise void If an Infant grants a Rent-charge out of his Estate 't is not voidable but ipso facto void for if the Grantee should distrain for the Rent the Infant may have an Action of Trespass against him In all these Cases which have been cited where 't is held that the Deeds of Infants are not void but voidable the meaning is that non est factum cannot be pleaded because they have the form though not the Operations of Deeds and therefore are not void upon that account without shewing some special matter to make them of no efficacy Therefore if an Infant maketh a Letter of Attorny though 't is void in it self yet it shall not be avoided by pleading non est factum but by shewing his Infancy Some have endeavoured to distinguish between a Deed which giveth only authority to do a thing and such which conveys an interest by the delivery of the Deed it self that the first is void and the other voidable But the reason is the same to make them both void only where a Feoffment is made by an Infant 't is voidable because of the solemnity of the Conveyance Now if Simon Leach had made a Feoffment in Fee there had still remained in him such a Right which would have supported this Remainder in Contingency This Surrender is therefore void and all persons may take advantage of it Afterwards a Writ of Error was brought to reverse this Iudgment in the House of Lords but it was affirmed Cases Adj. 150. Hall versus Wybank THE Statute of Limitations is Statute of Limitations whether it extendeth to the Defendant being beyond Sea six years 21 Jac. cap. 16. that if any person be entituled to an Action and shall be an Infant Feme Covert Imprisoned or beyond Sea that then he shall bring the Action at full Age Discovert of saue Memory at large and returned from beyond Sea The Plaintiff brought an Indebitatus Assumpsit to which the Defendant pleaded non assumpsit infra sex Annos The Plaintiff replied that the Defendant was all that time beyond Sea so that he could not prosecute any Writ against him c. And upon a Demurrer Serjeant Tremaine argued that the Plaintiff was not barred by the Statute which was made to prevent Suits by limiting personal Actions to be brought within a certain time and it cannot be extended in favour of the Defendant who was a Debtor and beyond Sea because 't is incertain whether he will return or not and therefore there is no occasion to begin a Suit till his return 'T is true the Plaintiff may file an Original and Outlaw the Defendant and so seise his Estate but no Man is compelled by Law to do an act which is fruitless when 't is done and such this would be for if the Plaintiff should file an Original 't is probable the Defendant may never return and then if the Debt was 1000 l. or upwards he would be at a great Expence to no purpose or if the Party should return he may reverse it by Error 'T is a new way invented for the payment of Debts for if the Debtors go beyond Sea and stay there six years their Debts would by this means be all paid The words of the Statute do not extend to this Case for the Proviso is That if the Plaintiff be beyond Sea when the cause of Action doth accrew Cro. Car. 246. 333. that then he have shall liberty to continue it at his return yet 't is within the equity of Law for him to bring his Action when the Defendant returns who cannot be sued 'till then That Statutes have been expounded according to Equity is not now a new Position 2 Roll. Rep. 318. for Constructions have been made according to the sense and meaning and not according to the Letter of many Statutes