makes a Lease for the Life of the Lessee not warranted by the Statute and dies leaving B. in Remainder his Heir B. let ts for 99 years to commence after the death of the Tenant for Life reserving Rent and then the Tenant for Life surrenders to B. upon Condition and dies B. suffers a Recovery with single Voucher and dies the Lessee for years enters the Heir of B. distrains for the Rent and the Lessee brings a Replevin and upon an Avowry and Pleadings thereupon this Case was disclosed to the Court of Common Bench and Judgment given there for the Avowant and Error thereupon brought in this Court For the Plaintiff in the Error it was Argued That the Lease being derived out of a Reversion in Fee which was Created in A. upon the Discontinuance for Life and the New Fee vanishing by the Surrender of the Tenant for Life for it was urged he was in his Remitter altho' the taking of the Surrender was his own Act that the Lease for years by consequence was become void Again It was Objected against the Common Recovery that the Tenant in Tail and a Stranger which had nothing in the Estate were made Tenants to the Praecipe and therefore no good Recovery Again In case B. were not remitted after acceptance of the Surrender then he was Seised by force of the Tail and so no good Recovery being with single Voucher On the other side it was Argued to be no Remitter because the acceptance of the Surrender was his own Act and the Entry was taken away But admitting it were a Remitter because by the Surrender the Estate for Life which was the Discontinuance was gone and it was no more than a Discontinuance for Life For if Tenant in Tail letts for Life and after grants the Reversion in Fee if the Lessee for Life dies after the Death of the Tenant in Tail so that the Estate was not executed in the Grantee during the Life of the Tenant in Tail the Heir shall immediately Enter upon the Grantee of the Reversion Co. Litt. It seems also to be stronger against the Remitter in this case because 't is not Absolute but only Conditional However the Lease may be good by Estoppel for it appears to have been by Indenture and if the Lessor cannot avoid the Lease the Lessee shall without question be subject to the Rent But it was Objected against the Estoppel that here an Interest passes and the Lease was good for a time As if the Lessee for Ten years makes a Lease for Twenty years and afterwards purchaseth the Reversion it shall bind him for no more than Ten. To which Pemberton Chief Justice said The difference is where the party that makes the Estate has a legal Estate and where a Defeasible Estate only for in the latter a Lease may work by Estoppel tho' an Interest passed so long as the Estate out of which the Lease was derived remained undefeated As to the Recovery it was held clearly good altho' a Stranger that had nothing in the Land was made Tenant to the Praecipe with the Tenant in Tail for the Recompence in Value shall go to him that lost the Estate and being a Common Assurance 't is to be favourably Expounded Et Adjornatur Termino Sancti Hillarij Anno 33 34 Car. II. In Banco Regis Anonymus IN Error upon a Judgment in Ejectione Firmae in the Common Pleas where the Case was That the Bishop of London was seized injure Episcopatus of a Mannor of which the Lands in question were held and time out of mind were demised and demisable by Copy of Court Roll for Life in Possession and Reversion and J.S. being Copyholder for Life in Reversion after an Estate for Life in Ann Pitt and J.N. being seized of the Mannor by Disseisin J.S. at a Court holden for the Mannor in the name of J. N. surrendred into the Hands of the said J.N. the Disseisor Lord to the used of the said Lord. Afterwards the Bishop of London entred and avoided the Disseisin Ann Pitt died and an Ejectment was brought by J. S. And it was adjudged in the Common Bench that he had a good Title and now upon a Writ of Error in this Court the Matter in Law was insisted upon by Pollexfen for the Plaintiff in the Writ of Error That this Surrender to the Disseisor Lord to the Lords own use was good for all the Books agree a Copyholder may Surrender to a Disseisor of the Mannor to the use of a Stranger and why not to the Lords own use As if Lessee for years be ousted and he in Reversion disseised and the Lessee Releases to the Disseisor this extinguishes his Term. Here is a compleat Disseisin of the Mannor by Attornment of the Freeholders without which the Services cannot be gained and the Copyholders comeing to the Disseisors Court and by making Surrenders c. owning him for their Lords tantamounts Serjeant Maynard contra And he insisted that this Surrender was not good for the Disseisor had no Estate in this Land capable of a Surrender for the Copyholder for Life continuing in Possession and never having been ousted there could be no Disssesin of that And he endeavoured to distinguish it from a Surrender to a Disseisor Lord to the use of another for in such Surrenders the Lord is only an Instrument and does but as it were assent and until admittance the Estate is in the Surrenderer And he resembled it to the Attornment of a Tenant when è converso a Seigniory is granted and he put Cases upon Surrenders of Leases that they must be to one that hath the immediate Reversion as an under Lessee for part of the Term cannot Surrender to the first Lessor and he cited a Case of Lessee for years Remainder for Life Remainder in Fee to a Stranger he that had the Fee enfeoffed the Tenant for years by Deed and made Livery and the Conveyance held void for it could not work by Livery to the Tenant for years who was in Possession before and a Surrender it could not be because of the intermediate Estate for Life and it could not work as a Grant for want of Attornment He said it had been commonly received that a Common Recovery cannot be suffered where the Tail is expectant upon an Estate for Life not made Tenant to the Praecipe which he said was true in a Writ of Entry in the Post which are commonly used And the true reason is because such Writ supposes a Disseisin which cannot be when there is a Tenant for Life in Possession But as he said a Common Recovery in such case in a Writ of Right would be good Pemberton Chief Justice said his reason of Desseisin would overthrow Surrenders to the use of a Stranger for if the Possession of the Copyholder would preserve it from a Disseisin then was it pro tempore lopped off or severed from the Mannor and then no Surrender could be at all Et Adjornatur Berry
and that Isaack Knight his Executor took a Capias thereupon out of the Common-Pleas Now it being a Statute-Merchant it ought first to have been certified into the Chancery and from thence a Capias should be issued out Returnable in the Court of Common-Pleas And so the Statute of Acton Burnel 30 Ed. 3. Enacts and so is Fitz. N.B. 130. whereas here the Capias goes out of the Common Pleas and for ought appears was the first step towards the execution of this Statute for it doth not appear that it was ever certified or that the Court had any Record before them to award this Capias upon and so the Execution is quite in another manner than the Statute provides and in a new Case introduced by the Statute and therefore it seems to be void and if so then the Statute of Knight could not be assigned so as to pass the Interest of it to Edward Lewis and the Fines will have no effect upon it and indeed it puts it clean out-of the Case before us as if it had never been acknowledged and the Interest of that Statute must be still in the Executor of Knight But then admitting it to have been extended and consequently well assigned together with Gerrard's Statute to Edward Lewis if so I take it to be drowned in Gerrard's Extent As to that the Case is no more than this that after the Statute is extended there comes another Extent upon a puisne Statute for 't is found that Gerrard's Statute was extended after Knight's Statute whether the Estate by Extent upon the puisne Statute be in the nature of a Reversional Interest for if so then when the Interest of the first Extent and the latter comes into one person the first must be drowned for an Estate for years or other Chattel Interest will merge in a Chattel in Reversion that is immediately expectant And that is Hughes and Robotham's Case in the 1 Cro. 302. pl. 32. If a Lease for years be made and then the Reversion is granted for years with Attornment the Lessee may surrender to the Grantee and the Term will drown in the Reversion for years To which it is Objected That an Extent is rather in the nature of a Charge upon the Land than an Interest or Estate in the Land it self In the Case of Haydon and Vavasor versus Smith in Mo. 662. an Extent is thus described that it is onus reale inhaerens gremio liberi tenementi tout temps Executory as the words of that Book are If the Tenant by an Extent purchase the Inheritance of part of the Lands extended the whole falls So a release of the Debt will immediately determine the Extent and it has been compared to one that enters into Lands by virtue of a power to hold until the arrear of Rent is satisfied It is true an Extent is an Execution given by the Statute Law for the satisfaction of a Debt and therefore the release of the Debt must determine the Estate by Extent because the Foundation of it is removed and so if the Inheritance of part of the Land extended comes to the Conusee it destroys the whole Extent whereas if a Lessee for years purchaseth the Reversion of part the Lease holds for the rest But in case of an Extent if it should be so the Conusee would hold the residue of the Land longer because the Profits that should go in satisfaction of the Debt must be less and this would be to the wrong of him in the Reversion But in other respects an Extent makes an Estate in the Land and hath all the properties and Incidents of and to an Estate and doth in no sort resemble such an Interest as is only a Charge upon the Land An Interest by Extent is a new Species of an Estate introduced by Statute Law Our Books say that 't is an Estate treated in imitation of a Freehold and quasi a Freehold but no Book can be produced that says that 't is quasi an Estate The Statute of 27 Ed. 3. cap. 9. Enacts That he to whom the Debt is due shall have an Estate of Freehold in the Lands and the Statute of 13 Ed. 1. de Morcatoribus say That he shall have Seisin of all the Lands and Tenements When a Statute is extended it turns the Estate of the Conisor into a Reversion and so are the express words in Co. 1 Inst 250. b. and so the Objection That he does not hold by Fealty is answered and there are no Tenures that are to no purpose but he that enters by virtue of a power to hold till satisfied an Arrear of Rent he leaves the whole Estate in the Owner of the Land and not a Reversion only If a Lease for years be made reserving Rent and then the Lessor acknowledge a Statute which is extended the Conisee after the Extent shall have an Action of Debt for the Rent and distrain and avow for the Rent as in Bro. tit Stat. Merch. 44. and Noy fo 74. but he that enters by a Power to hold for an Arrear of Rent shall not He in Reversion may release to the Tenant by Extent which will drown the Interest and emerge his Estate according as it is limited in the Release Co. 1 Inst 270. b. 273. Tenant by Statute may forfeit by making a Feoffment Mo. 663. He is to Attorn to the grant of the Reversion 1 Roll. 293. and is liable to a Quid juris clamat 7 H. 4. 19. b. Tenant by Extent may surrender to him in Reversion 4 Co. 82. Corbet's Case therefore these Cases are to shew That an Extended Interest makes an Estate in the Lands as much as any Demise or Lease And I take it the consequence of that is That when an Estate by Extent is evicted by an Extent upon a prior Statute as Elwaies and Burroughs Extent was by the Extent of Knight's Statute or where the prior Statute is first extended and then a Statute of later date is extended as Gerrard's Statute is found to be extended after the Extent upon Knight's Statute In both these Cases the Extent upon the puisne Statute will be in the nature of a Reversional Interest A Reversion is every where thus described viz. An Estate to take effect in possession after another Estate determined 'T is not in nature of a future Interest as a Term for years limited to commence after the end of a former Term for such an one shall not have the Rent upon a former Lease as I have shewn before but he that extends upon a Lessee for years shall for the Liberate gives a present Interest to hold ut liberum tenementum but indeed cannot take effect in possession by reason of a prior Extent or by prior Title And this is the very case of a Reversion which is an actual present Interest tho' it be to take effect in possession after another Estate Now I conceive it will plainly follow from this That Knight's Statute is drowned in Gerrard's
clearly Resolved that the King might grant it and that the Estate of the Grantee should continue tho' the King's Interest devolved upon the succeeding Queen And it was Resembled to the Case of the Dutchy of Cornwal If the King while there is no Prince of Wales makes a Lease of Lands belonging to that Dutchy this shall determine upon the Birth of that Prince but if he Presents to a Church the Incumbent shall not be removed as in case where the King presents to a Church by reason of the Temporalties of a Bishoprick the Bishop after Created shall not remove the Clerk And the Chief Justice said in this case that the Interest of the Mastership did not properly pass from the King so as it should have a dependance upon the King's Estate for the King doth but Nominate and the Master is Intituled as from the first Foundation and Constitution It was further agreed that a thing of this nature could not be granted in Reversion for 't is not like an Office but rather as a Prebendary or Incumbency of a Church and the Master as Head of the Corporation with his Brethren hath the whole Estate in him As to the Record in 4 Ed. 3. it was said Note For Evidence and so shewn out of Speeds Chronicles produced in Court That at that time Queen Isabel was under great Calamity and Oppression and what was then determined against her was not so much from the Right of the thing as the Iniquity of the Times neither hath it been heard that one who had been Queen of England should be called nuper Regina in her Life time So that that Authority was much invalidated from the Circumstance of the Time The Plaintiffs observing the Court thus clearly for the Defendants Title was Nonsuit Note It was not Resolved whether if there had been a Queen Consort at the time of this Grant it had been good to the Defendant But the Judges rather inclined that it should Davison versus Hoslip IN an Assumpsit the Plaintiff sets forth That J. S. owed him 20 l for the Arrear of an Annuity and that the Defendant was Receiver of the Rents of J. S. and appointed by J. S. to pay the Plaintiff his 20 l That the Defendant in Consideration that the Plaintiff would forbear him adtunc Receptor ' serv ' J.S. to such a time that then he would pay him if he lived and continued Receiver To this the Defendant pleaded non Assumpsit and a Verdict was found for the Plaintiff It was moved in Arrest of Judgment that it did not appear that the Defendant had at the time of the Promise any of the Rents of J. S. in his hands and then the forbearing of him could be no Consideration because not liable to any Suit And tho' in case of an Executor's Promise there need be no Averment of Assets for notwithstanding that he may be Sued and the Plaintiff may have Judgment to recover when Assets shall come yet 't is not so in this Case Sed non allocatur For it being shewn That he was Receiver at the time of the Promise and averred That he so continued 't is a strong Intendment that he had Effects in his hands especially after a Verdict It was also said That the taking of this Promise did not discharge the Principal Debtor but that there might be resort to him so long as the Money was unpaid Brown versus London IN an Action upon the Case the Plaintiff declared upon the Custom of Merchants that J. S. drew a Bill of Exchange upon the Defendant to pay to the Plaintiff which he accepted and hath not paid him And declared further sur Indebitat ' upon such a Sum for that the Defendant accepted a Bill of Exchange from him c. Vpon non Assumpsit a Verdict was fâ—und found for the Plaintiff and entire Damages given And it was moved in Arrest of Judgment that an Assumpsit sur Indebitat ' did not lye upon his matter but only an Action upon the Case as it was laid in the first part of the Declaration where the Custom of Merchants is set forth and that the Defendant by reason thereof is chargeable and this is not to be involved in a general Indebitatus assumpsit And of that Opinion were Hale and Rainsford who said it had been so Adjudged in the Exchequer since the King's Return But they said If A. delivers Money to B. to pay to C. and gives C. a Bill of Exchange drawn upon B. and B. accepts the Bill and doth not pay it C. may bring an Indebitatus assumpsit against B. as having received Money to his use But then he must not declare only upon a Bill of Exchange accepted as the Case at Bar is So by their Opinions the Judgment was stayed haesitante Twisden for he conceived that the Custom made it a Debt for him that accepted the Bill Ile's Case A Mandamus was prayed to restore a Sexton The Court at first doubted whether they should grant it because he was rather a Servant to the Parish than an Officer or one that had a Freehold in his Place But upon a Certificate shewn from the Minister and divers of the Parish That the Custom was there to choose a Sexton and that he held it for his Life and that he had 2 d a Year of every House within the Parish They granted a Mandamus and it was directed to the Churchwardens Twisden said that it was Ruled in 1652. in this Court That a Mandamus did not lye to be restored to a Stewardship of a Court Baron but of a Court Leet it did for there the Steward is Judge but of a Court Baron the Suitors are Judges But Hale said He was of another Opinion for the Steward is Judge of that part of the Court which concerns the Copyholds and is Register of the other Ante. Oble versus Dittlesfield IN an Assumpsit the Plaintiff sets forth That J.S. was Indebted to him in 40 l and that the Defendant was Indebted in the like Sum to J. S. and that J. S. did appoint him to receive this 40 l from the Defendant in satisfaction for the Debt due to him from J.S. Which he signifying to the Defendant he in consideratione praemissorum and that the Plaintiff would forbear him a Quarter of a year promised that he would then pay him To this the Defendant pleaded non Assumpsit and a Verdict was found for the Plaintiff It was moved in Arrest of Judgment that here was no sufficient Consideration for it doth not appear that the Defendant was party to this Agreement whereby he should become chargeable by the Plaintiff and then the Forbearance is not material and in the mean time he is Suable by J.S. his Creditor And Clipsham and Morris's Case was cited which was Adjudged in this Court Hill 20 21 Car. 2. where the Plaintiff in an Assumpsit declared that J. S. was Indebted to him in 50 l and gave him a
the Reservation to the Estate Whitlocks Case 8 Co. is very full to this where Tenant for Life the Remainder over so setled by Limitation of uses with power to the Tenant for Life to make Leases who made a Lease reserving Rent to him his Heirs and Assigns Resolved That he in the Remainder might have the Rent upon this Reservation So put the Case That Lessee for a 100 years should let for 50 reserving a Rent to him and his Heirs during the Term I conceive this would go to the Executor 'T is true if the Lessor reserves the Rent to himself 't is held it will neither go to the Heir or Executor But in 27 H. 8. 19. where the Reservation is to him and his Assigns It is said that it will go to the Heir And in the Case at Bar the words Executors and Administrators are void then t is as much as if reserved to him and his Assigns during the Term which are express words declaring the intent and must govern any implied construction which is the true and particular Reason in this Case The Old Books that have been cited have not the words during the Term. Vid. Lane 256. Richmond and Butchers Case indeed is judged contrary in point 3 Cro. 217. but that went upon a mistaken ground which was the Manuscript Report 12 E. 2. Whereas I suppose the Book intended was 12 E. 3. Fitz. Assize 86. for I have appointed the Manuscript of E. 2. which is in Lincolns Inn Library to be searched 6 Co. 62. and there is no such Case in that year of E. 2. The Case in the 12 E. 3. is A Man seized of two Acres let one reserving Rent to him and let the other reserving Rent to him and his Heirs and resolved that the first Reservation should determin with his Life for the Antithesis in the Reservation makes a strong Implication that he intended so In Wotton and Edwins Case 5 Jac. the words of Reservation were Yeilding and Paying to the Lessor and his Assigns And resolved that the Rent determined upon his Death In that case there wanted the effectual and operative Clause during the Term. The Case of Sury and Brown is the same with ours in the words of Reservation and the Assignee of the Reversion brought Debt Lane 255. and did not aver the Life of the Lessor And the Opinion of Jones Croke and Doderidge was for the Plaintiff Latches Rep. 99. The Law will not suffer and Construction to take away the energy of these words during the Term. If a Man reserves a Rent to him or his Heirs 't is void to the Heir 1 Inst 214. a. But in Mallorys Case 5 Co. where an Abbot reserved a Rent during the Term to him or his Successors it was resolved good to the Successor It is said in Brudnels Case 5 Co. that if a Lease be made for years if A. and B. so long live if one of them dies the Lease Determines because not said if either of them so long lives So it is in point of Grant But it is not so in point of Reservation for Pas 4 Jac. in the Common Pleas between Hill and Hill The Case was a Copyholder in Fee where the Custom was for a Widows Estate made a Lease by Licence reserving Rent to him and his Wife during their lives and did not say or either of them and to his Heirs It was resolved First That the Wife might have this Rent tho' not party to the Lease Secondly That tho' the Rent were reserved during their lives yet it should continue for the life of either of them for the Reversion if possible will attract the Rent to it as it were by a kind of Magnetism Hoskins versus Robbins A Replevin for six Sheep The Defendant makes Conusance c. for Damage Fesant The Plaintiff replied That the place where was a great Wast parcel of such a Mannor within which there were time out of mind Copyhold Tenants and that there was a Custom in the Mannor that the said Tenants should have the sole and several Pasture of the Wast as belonging to their Tenements and shews that the Tenants licenced him to put in his Beasts The Defendant Traverses the Custom and found for the Plaintiff The exceptions moved in Arrest of Judgment were now spoken to again First That the Custom to have the sole Pasture and thereby to exclude the Lord is not allowable It hath béen ever held That such a Prescription for Common is not good and why should the same thing in effect be gained by the change of the name That Prescription for Pasture and Prescription for Common is the same thing Vid. 3 Cro. Daniel v. Count de Hertford 542. and Rolls tit Prescription 267. It is held a Man may claim Common for half a year excluding the Lord and that one cannot prescribe to have it always so is not because of the Contradiction of the Term for if the sole Feeding be but for half a year 't is as improper to call it Common but the true reason seems to be because it should in a manner take away the whole profit of the Soil from the Lord and he should by such usage lose his greatest Evidence to prove his Title for it would appear that the Land was always fed by the Beasts of others and it would be very mischievous to Lords who live remote from their Wasts or that seldom put their Beasts there as many times they do not so that by the Tenants solely using to feed it they should lose their Improvements provided for the Lords by the Statute and so come at last for want of Evidence to lose the Soil it self Secondly This Custom is laid To have the sole Feeding belonging to their Tenements and 't is not said for Beasts levant and couchant or averred that the Beasts taken were so 15 E. 4. 32. and Rolls tit Common 398. Fitz. tit Prescription 51. A Man cannot prescribe to take Estovers as belonging to his House unless he Avers them to be spent in his House Noy 145. So 2 Cro. 256. tho' the Prescription was there to take omnes Spinas for it is necessary to apply it to something which agrees in nature to the thing Brownlow 35. Thirdly Here the Plaintiff justifies the putting in his Beasts by a Licence and doth not say it was by Deed whereas it could not be without Deed and so is the 2 Cro. 575. Fourthly Those defects are not aided by the Verdict for they are in the right and of substance But the Court were all of Opinion for the Plaintiff First They held the Prescription to be good and being laid as a Custom in the Mannor it was not needful to express the Copy-hold Estates it doth not take away all the profit of the Land from the Lord for his interest in the Trees Mines Bushes c. continues Co. Inst 122. a. is express that a Prescription may be for sola separalis pastura ' and if
that time this made an Estate Tail But if it had béen and after their decease to their Children then the Children should take by Purchase tho' born after 'T is true that case is variously reported in the Books but I adhere to my Lord Coke presuming that being brought before all the Judges in the Argument of VVilds Case it was a true Report As for the second Point 't is plain that the power is extinguished for by the Recovery the Estate for Life to which it was annexed in privity is gone and forfeited so that 't is not necessary to dispute the third Point whether well executed or no But upon the whole I agree with my Brother Rainsford that the Plaintiff ought to have Judgment Hale I differ from my two Brothers and tho' I was of their Opinion at the finding of the Special Verdict yet upon very great Consideration of the Case I am of Opinion for the Defendant I shall proceed in a different method from my Brothers and begin with that Point which they made last and I agree with them admitting that Bernard had but an Estate for Life that the power was destroyed also here the Recovery does not only bar the Estate but all powers annexed to it for the recompence in value is of such strong Consideration that it serves as well for Rents Possibilities c. going out of and depending upon the Land as for the Land it self So Fines and Feoffments do ransack the whole Estate and pass or extinguish c. all Rights Conditions Powers c. belonging to the Land as well as the Land it self Secondly I agree with my Brother Rainsford that if Bernard had but an Estate for Life by the Devise the power was not well executed Where Tenant for Life has a power to make Leases 't is not always necessary to recite his power when he makes a Lease but if he makes a Lease which will not have an effectual continuance if it be directed out of his interest there it shall be as made by virtue of his power and so it was resolved in one Roger's Case in which I was Counsel Again Tho' it be here by Covenant to stand seized an improper way to execute his power yet it might be construed an Execution of it Mich. 51. In this Court Stapleton's Case where a Devise was to A. for Life Remainder to B. for Life Remainder to C. in Fee with power to B. to make his Wife a Joynture B. covenanted to stand seized for the Joynture of his Wife reciting his power tho' this could not make a legal Joynture yet it was resolved to enure by virtue of his power quando non valet quod ago ut ago valeat quantum valere potest But in this Case Bernard has got a new Fee which tho' it be defeasible by him in Remainder yet the Covenant to stand seized shall enure thereupon and the use shall arise out of the Fee Thirdly I was at the first opening of the Case of Opinion that Bernard had but an Estate for Life but upon deep Examination of the Will and of the Authority and Considerations of the Consequences of the Case I hold it to be an Estate Tail And first to ease that Point of all difficulties if cannot be denied but a Devise to a Man and the Heirs of his Body by a second Wife makes an Estate Tail executed tho' the Devisee had a Wife at the time As the Case often cited Land given to a Married Man and a Married Woman and the Heirs of their Bodies We are here in case of the Creation of an Estate-Tail where intention has some influence voluntas Donatoris c. and may help words which are not exactly according to legal form 39 Ass 20. Land given to a Man and his Wife haeredi de corpore uni haeredi tantum this judged an Entail Again we are in case of an Estate Tail to be created by a Will and the intention of the Testator is the Law to expound the Testament therefore a Devise to a Man and his Heirs Males or a Devise to a Man and if he dies without Issue c. are always construed to make an Entail It must be admitted that if the Devise were to B. and the Issue of his Body having no Issue at that time it would be an Estate Tail for the Law will carry over the word Issue not only to his immediate Issue but to all that shall descend from him I agree it would be otherwise if there were Issue at the time Tayler and Sayer 41 Eliz. rot 541. a Devise to his Wife for Life 1 Cro. 742. Remainder to his Issue having two Children it was held the Remainder was void being to the Issue in the singular number for incertainy which should take But that was a little too rank for Issue is nomen collectivum Again I agree if a Devise be made to a man and after his death to his Issue or Children having Issue at that time they take by way of Remainder And that was the only Point adjudged in Wild's Case and there also against the Opinion of Popham and Gawdy This way being made I come to the Case it self and shall briefly give my Reasons why I hold Bernard has an Estate Tail First Because the word Issue is nomen collectivum and takes in the whole Generation ex vi termini and so the Case is stronger than if it were Children And where 't is said to the Issue that he shall have of the Body of the second Wife that is all that shall come of the second Wife For so 't is understood in common Parlance Secondly In all Acts of Parliament Exitus is as comprehensive as Heirs of the Body In Westm 2. de donis Issue is made a term of equivalence to Heirs of the Body for where it speaks of the Alienation of the Donee 't is said quo minus ad exitum discenderet So in 34 H. 8. of Entails setled by the Crown 'T is true in Conveyances c. the wisdom of the Law has appropriated the word Heirs as a Term of Art In Clerke's Case A Lease was made to commence after the death of his Son without Issue the Son had a Son and died and then that Son died without Issue It was Resolved both in the Kings Bench and the Exchequer that the Lease should commence for Issue being nomen collectivum whenever the Issue of the Son failed the term of Commencement did happen But now to see the difference Tyler's Case Mich. 34 Eliz. B.R. He had Issue A. B. C. and D. and Devised to his Wife for Life and after her death to B. his Son in Tail and if he dies without Issue then to his Children A. had Issue a Son and died and B. died without Issue Resolved that the Son of A. should not take as one of the Children of the Testator Which Case I cite to shew the odds between the word Issue and the
word Children My second Reason is from the manner of the Limitation which is to his Issue and of his Body lawfully begotten upon the second Wife Phrases agreeable to an Estate Tail and the meaning of a Testator is to be spelled out by little Hints It is admitted in Wild's Case in the 6 Co. 17. that if the Devise had been to the Children of their Bodies it would have been an Entail Thirdly It appears by the Devise that the Testator knew there could be no Children at that time and shall not be supposed to intend a contingent Remainder Fourthly It appears that the Testator did not intend to prefer the Children of the first Wife of Bernard but did the Children of the second and therefore cannot be thought to mean that John the younger Brother of Bernard should take before failure of the Issue which Bernard should have by his second Wife And to this purpose is Spalding's Case 3 Cro. 185. A Devise to his eldest Son and the Heirs of his Body after the death of his Wife and if he died living the Wife then to his Son N. And devised other Lands to another Son and the Heirs of his Body and if he died without Issue then to remain c. The first Son died living the Wife It was strongly urged that his Estate should cease for being said If he died living the Wife this was a Corrective of what went before But 't was Ruled by all the Court that it was an absolute Estate Tail in the first Son as if the words had been If he died without Issue living the Wife for he could not be thought to intend to prefer a younger Son before the Issue of his eldest Fifthly The words are further and for want of such Issue then to John which words in a Will do often make an Estate Tail by Implication As 4 Jac. Robinson's Case A Devise to A. for Life and if he died without Issue then to remain A. took an Entail So Burley's Case 43 Eliz. A Devise to A. for Life Remainder to the next Heir Male and for default of such Heir Male then to remain Adjudged an Estate Tail 'T is true Dyer 171. is where Lands were Devised to a man and the Heirs Males of his Body and if he died without Issue c. these last words did not make a Tail General to the Devisee For an Implication of an Estate of Inheritance shall never ride over an express limitation of an Inheritance before being 't is said here for want of such Issue the Land should remain 't is plainly meant that it should not before the Issue failed and then the Issue must have it so long for none else can and so 't is an Estate Tail I come now to Authorities 6 Eliz. Anderson num 86. Moor pl. 397. A Devise to his Son for Life and after his decease to the Men Children of his Body said to be an Estate Tail and so cited by Coke in that Book and so contrary to his Report of it in Wild's Case Bendloes num 124. But that Case is not so strong as this for Children is not so operative a word as Issue Rolls 839. A Devise to his eldest Son for Life non aliter for so were the words tho' not printed in the Book and after his decease to the Sons of his Body it was but an Estate for Life by reason of the words Non aliter Hill 13 Car. 2. Rot. 121. Wedgward's Case A Devise to his Son Thomas for Life and after his decease if he died without Issue living at his death then to the Daughter c. it was held to be an Estate for Life But were it an Estate Tail or no it was not necessary to be Resolved the Case depending upon the destruction or continuance of a Contingent Remainder which would have been gone had the Devise made an Estate Tail again there being an express Devise for Life they would not raise a larger Estate by Implication Again Wild's Case where Lands were Devised to A. for Life Remainder to B. and the Heirs of his Body Remainder to Wild and his Wife and after their decease to their Children And the Court of Kings-Bench were at first divided Indeed it was afterwards adjudged an Estate for Life to Wild and his Wife First Because having limited a Remainder in Tail to B. by express and the usual words if he had meant the same Estate in the second Remainder 't is like he would have used the same words Secondly It was not after their decease to the Children of their Bodies for then there would be an Eye of an Estate Tail Thirdly The main Reason was because there were Children at the time of the Devise and that was the only Reason the Resolution went upon in the Exchequer Chamber And tho' it be said in the latter end of the Case That if there were no Children at that time every Child born after might take by Remainder 't is not said positively that they should take And it seems to be in opposition to their taking presently but however that be it comes not to this Case For tho' the word Children may be made nomen collectivum the word Issue is nomen collectivum of it self Hill 42. and 43 Eliz. Bifield's Case A Devise to A. and if he dies not having a Son then to remain to the Heirs of the Testator Son was there taken to be used as nomen collectivum and held an Entail I come now to answer Objections First 'T is objected that in this Case the Limitation is expresly for Life and in that respect stronger than Wild's Case And this is the great difficulty But I Answer That tho' these words do weigh the Intention that way yet they are ballanced by an apparent Intention that weighs as much on the other side which is That as long as Bernard should have Children that the Land should never go over to John for there was as much reason to provide for the Issue of the Issue as the first Issue Again A Tenant in Tail has to many purposes but an Estate for Life Again 'T is possible that he did intend him but an Estate for Life and 't is by consequence and operation of Law only that it becomes an Estate Tail 1651. Hansy and Lowther The Case was A Copyholder surrendred to the use of his Will and Devised to his first Son for Life and after his decease to the Heir Male of his Body c. This was Ruled to be an Estate Tail and this differs from Archer's Case in the 1st of Co. for that the Devise there was for Life and after to the Heir Male and the Heirs of the Body of that Heir Male There the words of Limitation being grafted upon the word Heir it shews that the word Heir was used as Designatio personae and not for Limitation of the Estate So is the Case of Clerk and Day 1 Cro. 313. Another Objection was That there being a Power appointed
c. be indicted for not repairing of a Way within their Precinct they cannot plead Not guilty and give in Evidence that another by Prescription or Tenure ought to repair it for they are chargeable de communi Jure and if they would discharge themselves by laying it elsewhere it must be pleaded Error ERror to Reverse a Judgment in Debt upon a Bond given in Norwich Court where by the Custom the plea of the Defendant was quod non dedicit factum sed petit quod inquiratur de debito First It was moved to be Error for that the Venire was XII Men c. in figures Sed non allocatur for being in these letters XII and not in the figures 12. it was well enough Secondly It was ad triandum exi tum whereas there was no Issue joyned wherefore it ought to have been ad inquirend ' de debito c. Sed non allocatur for the Presidents are as the Case is here Thirdly The Condition of the Bond was to pay at Alborough and that ought to have been shewn to be within the Jurisdiction of the Court Sed non allocatur for the Plea here is not payment secund ' formam Conditionis but the Jury is to inquire by the custom of all manner of payments and discharges Fourthly In the Record it was continued over to several Courts and in the Court where the Judgment is given 't is said in Curia praedicta and so incertain which but notwithstanding these matters the Iudgment was affirmed Anonymus THe Case upon Evidence at a Tryal in Ejectment was this a Dean and Chapter having a right to certain Land but being out of Possession Sealed a Lease with a Letter of Attorney to deliver it upon the Land which was done accordingly and held to be a good Lease for tho' the putting the Seal of a Corporation aggregate to a Deed carries with it a delivery yet the Letter of Attorney to deliver it upon the Land shall suspend the operation of it while then Tenant for Life being in Debt to defraud his Creditors commits a Forfeiture to the end that he in Reversion may enter who is made privy to the contrivance The Opinion of Hale was that the Creditors should avoid this as well as any fraudulent Conveyance Anonymus IN an Ejectment upon a Tryal at Bar for Lands in antient Demesne there was shewn a Recovery in the Court of antient Demesne to cut off an Entail which had been suffered a long time since and the Possession had gone accordingly But there was now objected against it First That no sufficient Evidence of it appeared because the Recovery it self nor a Copy of it was shewn for in truth it was lost But the Court did admit other proof of it to be sufficient and said if a Record be lost it may be proved to a Jury by Testimony as the Decree in H. 8. time for Tythe in London is lost yet it hath been often allowed that there was one Secondly It appeared that a part of the Land was leased for Life and the Recovery with a single Voucher was suffered by him in Reversion and so no Tenant to the Praecipe for those Lands But in regard the Possession had followed it for so long time the Court said they would presume a Surrender as in an Appropriation of great Antiquity there has been presumed a Licence tho' none appeared Thirdly It was objected That the Tenant in Tail which suffered the Recovery having first accepted of a Fine sur Conusans de droit come ceo his Estate Tail was changed for he was estopped during his Life to say that he had any other Estate than Fee then he being made Tenant to the Praecipe the Recovery was not of the Estate Tail and so should not bind But the Court held clearly that the acceptance of this Fine made no alteration of his Estate If Tenant for Life accepts such a Fine 't is a Forfeiture because he admits the Reversion to be in a Stranger but it does not change his Estate so where two Joynt-tenants in Fee accept a Fine which is to the Heirs of one of them yet they continue Joynt-tenants in Fee as they were before Fourthly The Writ of Right Close did express the Land to lie in such a Mannor and a Praecipe that demands Land ought to mention the Vill in which they lie for a Praecipe of Land in Parochia or in Manerio is not good But this exception was disallowed by the Court for Hale said the Writ of Right Close is directed Ballivis Manerij c. quod plenum rectum teneant of the Land within the Precinct of the Mannor and it is not to be resembled to another Praecipe But if a Praecipe be faulty in that Point unless exception be taken to it in Abatement it cannot be assigned for Error but if it were Erroneous the Recovery would bind until reversed Note After Judgment quod computet tho' it be not the final Judgment yet no motion is to be admitted in Arrest of Judgment and after such Judgment a Scire facias lies against the Executor of the Defendant Note In an Action of Debt against the Lessee he may plead nil debet and give the expulsion in Evidence Anonymus IN an Assumpsit the consideration appeared to be that the Defendant promised to pay a Sum of Money which he owed this is no good consideration tho' after a Verdict unless it appeared that the Debt was become remediless by the Statute of Limitations but payment of a Debt without Suit is a good consideration Anonymus A Justice of the Peace brought an Action of Slander for that the Defendant said He was not worth a Groat and that he was gone to the Dogs and upon motion in Arrest of Judgment notwithstanding that it was urged to maintain it that the Statute of H. 6. requires that a Justice of Peace should have 40 l a year And therefore in regard an Estate was necessary to his Office that the Action would lie yet the Judgment was stayed for such words will not bear an Action unless the person of whom they are spoken lives by buying and selling Anonymus IT was returned upon Elegit that the Sheriff had delivered medietatem Terrar ' Tenementorum in extent and after the Filing and Entry of it upon the Record the Plaintiff moved to quash it because it was insufficient for the Sheriff ought upon such Execution to deliver the Possession by Metes and Bounds Wild held that it being entred upon the Record there was no avoiding of it but by Writ of Error But Hale held that in regard it appeared by the Record to be void it might be quashed as if upon an Ejectment to recover Possession upon such a return it appears upon the Evidence that there was more than the half the Land delivered this shall be avoided So if a Fieri facias be not warranted by the Judgment upon which it is awarded tho' the Sheriff shall be
excused yet 't is merely void as to the Party Et Ad jornatur Norton versus Harvey THe Case was an Executor being possessed of a Term let part of it reserving a Rent and died And the Question was whether his Executor should have the Rent or the Administrator de bonis non It was argued for the Executor that this Rent is meerly due by the Contract and not incident to the Reversion and the Administrator is in Paramount it being now as if the Testator had died Intestate and therefore before the Statute of this King such Administrators could not have had a Scire facias upon a Judgment obtained by the Executor tho' in the Case of Cleve and Vere 3 Cro. 450 457. 't is held that he may have a Liberate where the Executor had proceeded in the Execution of a Statute so far as an Extent for there the thing is executed and not meerly Executory as a Judgment If a Man that hath a Term in the right of his Wife le ts part of it reserving a Rent the Wife surviving shall not not have the Rent On the other side it was said that this case differed from that because the Reservation here is by him that had the whole Right executed in him Another objection against the Action was that here in the Declaration being in Covenant for Non payment of Rent there is not any demand alledged But that was answered because the Covenant was to pay such a Sum for the Rent expresly but if the Condition of a Bond be for performance of Covenants expressed in such a Lease one of which is for payment of Rent in that case the Bond will not be forfeit without a demand and of that Opinion were the Court and that the Executor should have the Rent but when recovered Hale said it should be Assets in his Hands And accordingly Iudgment was given for the Plaintiff Termino Sanctae Trinitatis Anno 26 Car. II. In Banco Regis Silly versus Silly DOwer of 300 Acres of Land 200 Acres of Pasture 100 Acres Meadow The Tenant pleaded Non Tenure The Jury found him Tenant as to 320 Acres of Land and as to the rest that he was not Tenant And the Iudgment was that the Demandant should recover the 320 Acres Error was assigned in this Court that the Verdict and Judgment were for more Acres of Land than were demanded But on the other side it was said Land was a general word and might include Meadow and Pasture Curia In a Grant Land will extend to Meadow Pasture c. but in Pleading it signifies Arable only and here in regard they are distinguished in the Count the Verdict and Judgment must be reversed for the whole Tho' Hale said antiently such Iudgment would have been reversed but for the surplusage Vid Post Batmore Vxor versus Graves TRover for a 100 Loads of Wood upon a Special Verdict the Case was this Copyhold Land was surrendred to the use of J. S. for years Remainder to the Brother of the Plaintiff's Wife who died before the Term expired and so was not admitted any otherwise than by the admission of the Tenant for years And it was resolved First That the admittance of him that had the Estate for years was an admittance for him in the Remainder 4 Co. 23. a. 3 Cro. 504. Fine sur Grant and render to A. for Life Remainder to B. Execution sued by A. serves for B. So an Attornment to Tenant for Life serves for him in Remainder and this brings no prejuduce to the Lord for a Fine is not due until after admittance and the Lord may Assess one Fine for the particular Estate and another Fine for the Remainder But Wild said he need not pay it until his Estate comes in Possession after a Surrender the Estate remains in the Surrender before admittance of the Cestuy que use yet where Borough English Land was Surrendred to the use of J. S. and his Heirs and he died before admittance It was held that the younger Son should have it Secondly It was resolved that the Possession of the Tenant for years was so the Possession of him in Remainder as to make a Possessio Fratris But then it was moved that the Conversion was laid after the Marriage and so the Feme ought not to have joyned with her Husband in the Action But the Court held that in regard the Trover was laid to be before the Marriage which was the inception of the cause of Action the Wife might be joyned as if one has the Custody of a Womans Goods and afterward Marries her she may joyn in Detinue with her Husband for in case of Bailment the Proprietor is to some purposes in Possession and to some out of Possession Hale said in this case the Husband might bring the Action alone or joyntly with his Wife And so Iudgment was given for the Plaintiff Anonymus IN Debt upon a Bond the Condition was to save the Obligee harmless from another Bond. The Defendant pleaded Non damnificatus The Plaintiff replies that the Money was not paid at the day and he devenit onerabilis and could not attend his business for fear of an Arrest The Defendant rejoyns that he tendred the Money at the day absque hoc that the Plaintiff devenit onerabilis to which it was Demurred and the Iudgment was given for the Plaintiff for the Money not being paid at the day the Counter Bond is forfeited Vid. 1 Cro. 672. 5 Co. and the Traverse in this case is naught The Mayor and Commonalty of London versus Dupester IN Debt for a Duty accruing to the City for Timber imported called Scavage The Declaration was that they were and had been a Corporation time out of mind and their Customs were confirmed by Act of Parliament Temps R. 2. c. The Defendant tendred his Law and Co. Entries 118. was cited where in Debt for an Amerciament in a Court Baron tho' the imposing of it was grounded upon a Prescription yet Wager of Law was admitted But notwithstanding in this case the Court overruled the Wager of Law for here the Duty it self is by Prescription and that confirmed by Act of Parlimant Debt for a Duty growing by a By-Law if the By-Law be Authorised by Letters Patents no Wager of Law lies So in Debt for Toll granted by Letters Patents 20 H. 7. Termino Sancti Michaelis Anno 26 Car. II. In Banco Regis Silly versus Silly THe Case was moved again And the Court said that the Demandant might have taken Judgment for the 300 Acres only habito nullo respectu to the rest and released all the Damages But this was not proper for an Amendment the Mistake being in the Verdict but if it could have been amended in the Common Bench the Court might here have made such Amendment Ante. Burfoot versus Peal A Scire facias was brought against the Bail who pleaded that the Principal paid the Debt ante diem impetrationis Brevis
have admitted Wager of Law and therefore lies not against the Executor It was difficultly brought in that Debt should lye against the Executor upon a Surmize of a Devastavit by himself But that Point is now setled but no Reason to extend it further And he cited a Case where Debt was brought against A. Executor of B. Executor of C. who pleaded that he had not of the Goods of C. in his hands To which the Plaintiff Replied That B. had Wasted the Goods of C. to the value of the Debt demanded Vpon which Issue was joyned and found for the Plaintiff and he had Judgment to recover de bonis B. in the hands of A. But that Judgment was Reversed Anonymus IF A. Engages that B. shall pay for certain Goods that B. buys of C. this is good to charge him upon a Collateral Promise but not upon an Indebitat ' Assumpsit for it doth not create a Debt Anonymus IN an Information for a Riot it was doubted by the Court whether it were Local being a Criminal Cause And it was observed that divers Statutes in Queen Elizabeth and King James's time provided that Prosecutions upon Penal Laws should be in their proper Counties Which was an Argument that at the Common Law they might have been elsewhere Taylor 's Case AN Information Exhibited against him in the Crown Office for uttering of divers Blasphemous Expressions horrible to hear viz. That Jesus Christ was a Bastard a Whoremaster Religion was a Cheat and that he neither feared God the Devil or Man Being upon this Trial he acknowledged the speaking of the Words except the word Bastard and for the rest he pretended to mean them in another Sense than they ordinarily hear viz. Whoremaster i. e. That Christ was Master of the Whore of Babylon and such kind of Evasions for the rest But all the Words being proved by several Witnesses he was found Guilty And Hale said That such kind of wicked Blasphemous words were not only an Offence to God and Religion but a Crime against the Laws State and Government and therefore punishable able in this Court. For to say Religion is a Cheat is to dissolve all those Obligations whereby Civil Societies are preserved and that Christianity is parcel of the Laws of England and therefore to reproach the Christian Religion is to speak in Subversion of the Law Wherefore they gave Judgment upon him viz. To stand in the Pillory in Three several places and to pay One thousand Marks Fine and to find Sureties for his Good Behaviour during Life Walker versus Wakeman THe Case was An Estate which consisted of Land a Rectory c. was conveyed to the use of one for Life c. with a Power to Lett the Premisses or any part of them so as 50 l Rent was reserved for every Acre of Land The Tenant for Life Demised the Rectory reserving a Rent which Rectory consisted of Tythes only and whether this was within the Power was the Question Serjeant Pemberton Argued That this Lease is not warranted by the Power for a Construction is to be made upon the whole Clause and the latter Words that appoint the Reservation of the Rent shall explain the former and restrain the general Word Premisses to Land only for if it shall be extended further the Settlement which was in Consideration of a Marriage Portion is of no effect for the Rectory As in case it should de Demised reserving no Rent which it might be if not restrained to the latter words and they applied only to the Land But it was Resolved by the Court that the Lease of the Rectory was good for the last Clause being Affirmative shall not restrain the Generality of the former And this Resolution was chiefly grounded upon Cumberford's Case in the 2 Rolls 263. where a Conveyance was made to Vses of divers Mannors and Lands with a Power to the Cestuy que use for Life to make Leases of the Premisses or any part of them so that such Rent or more were reserved upon every Lease which was reserved before within the space of Two years and a Lease was made of part of the Lands which had not been Demised within Two years before And Resolved it was a good Lease and that thereupon any Rent might be reserved because the Power was General To Lease all and the restrictive Clause should only be applied to such Lands as had been demised within Two years before Termino Sanctae Trinitatis Anno 28 Car. II. In Banco Regis MEmorandum The last Term Sir Richard Rainsford was made Chief Justice Hale Chief Justice quitting it for infirmity of Body and Sir Thomas Jones was made one of the Justices of the Court of Kings Bench. Anonymus IN an Action upon the Case brought against the Defendant for that he did Ride an Horse into a place called Lincolns in Fields a place much frequented by the Kings Subjects and unapt for such purposes for the breaking and taming of him and that the Horse was so unruly that he broke from the Defendant and ran over the Plaintiff and grievously hurt him to his damage c. Vpon Not guilty pleaded and a Verdict for the Plaintiff It was moved by Sympson in Arrest of Judgment that here is no cause of Action for it appears by the Declaration that the mischief which happened was against the Defendants Will and so Damnum absque injuria and then not shewn what right the Kings Subjects had to walk there and if a man diggs a Pit in a Common into which one that has no right to come there falls in no Action lies in such Case Curia contra It was the Defendants fault to bring a Wild Horse into such a place where mischief might probably be done by reason of the Concourse of People Lately in this Court an Action was brought against a Butcher who had made an Ox run from his Stall and gored the Plaintiff and this was alledged in the Declaration to be in default of penning of him Wild said if a Man hath an unruly Horse in his Stable and leaves open the Stable Door whereby the Horse goes forth and does mischief an Action lies against the Master Twisden If one hath kept a tame Fox which getts loose and grows wild he that kept him before shall not answer for the damage the Fox doth after he hath lost him and he hath resumed his wild nature Vid. Hobarts Reports 134. The Case of Weaver and Ward Anonymus IN Trespass in an inferiour Court if the Defendant plead son frank Tenement to oust the Court of Jurisdiction It was said by Wild that they may enforce the Defendant to swear his Plea as in case of Foreign Plea negat Twisden and as in this Court where a Local justification in Trespass c. is pleaded the Defendant must swear it But the Court held no Indictment will lie for Perjury in such Oath no more than upon a Wager of Law Anonymus IN Trover the Hab. corpora
because the Intent of the parties appears that it should be so There 's no great difference between the Construction of a Deed of Uses and a Will 13 H. 7. The Wife takes an Estate for Life by Implication where the Land is devised to the eldest Son after her decease Manning and Andrew's Case in 1 Leon. 259. The Reason of these Cases is the fulfilling of the Intention of the Parties and here this Limitation cannot be made good by way of a Future Use nor by any other way but only by creating of an Estate for Life in Michael the Father by Implication and this is according to the nature of a Covenant to stand seiz'd For the Use is not to pass out of the Covenantor till the proper time for the subsequent Estate to commence As to my Lord Paget's Case 't was his Intention to have the Use during his Life And my Lord Coke was certainly very well satisfied with the Resolution in Fenwick and Mitford's Case when he wrote his Institutes for he Argued before to the contrary as appears by the Report of that Case in Moor. Rainsford Justice to the same Intent If no Use rises immediately to Ralph yet if a Use rises by the Deed so that he has the Land any way be it by discent from his Father 't is within the Conclusion of the Verdict By the scope of the Conveyance it appears that it was intended that Robert should never have his Land till Twelve hundred Pound was paid for the provision of younger Children so that if Robert should have it it would be against the Intention of Michael There are two Reasons and Grounds in Law by which we may make this Deed agree with the Intention of the Parties First Because it is in the Case of an Estate Tail ubi voluntas donatoris observari debet Secondly It is in a Conveyance setled by way of Use and in Cases of Uses the Intention of the parties ought to be pursued And this is in Case of a Use that rises by Covenant to stand seiz'd which makes the Case the stronger And I conceive this is not a void Limitation but such an one as gives an Estate to Ralph In speaking to which I shall observe what my Lord Coke in the 1 Inst 23. says viz. That so much of the Use as the Owner of the Land does not dispose of remains in him c. and so in Cownden and Clark's Case in Hob. 30. And this is the Reason of Bingham's Case 1 Co. 91. Now here when Michael Covenanted to stand seiz'd to the Vse of his Heirs Male on the Body of his second Wife begotten I conceive he shall retain the Land as parcel of his ancient Vse during his Life for non est Haeres viventis according to Archer's Case 1 Co. And that Michael shall retain an Estate for Life is prov'd by my Lord Paget's Case 1 Co. 154. Dyer 310. N. 79. 1 Co. Chudleigh's Case 129. 2 Rolls 788. 21 H. 7. 18. From my Lord Paget's Case upon which I shall rely and the other Cases it appears that were there 's a Limitation to one after the death of another the Covenantor shall retain the Land during the Life of the other and here in our Case this Estate not taking effect till after the Death of Michael he shall retain the Estate and shall be Tenant for Life of the old Vse Now the Question is Whether Ralph shall take by Discent or Purchase And I conceive this Estate for Life with the Remainder in Tail makes but one Estate Tail in Michael and that he becomes Tenant in Tail and so Ralph shall take as Heir in Tail I shall not trouble my self whether Ralph may take here as a Purchaser because in Cownden and Clark's Case in Hob. it is Resolved that he cannot take as Heir Male of the Body by Purchase because all the words are not verified in him for he is not Heir I shall rely upon the First Point That here is an Estate Tail executed in Michael For when an Estate for Life is in the Auncestor by way of Retainer and an Estate is afterwards limited to his Heirs this is within the Rule put in Shelley's Case in 1 Co. where the Auncestor takes an Estate of Freehold and by the same Conveyance an Estate is limited to his Heirs Mediately or Immediately they are Words of Limitation and not of Purchase because the Heir is part of his Father Our Case is stronger that Fenwick and Mitfords Case It s true the same Reason for that Case is not given by Anderson and More which is given by my Lord Coke More 437. There the Reason is because the Limitation to the right Heirs is merely void here Michael hath an Estate in Tail of the ancient Use therefore 't is not necessary for the Law to create an Estate for Life Obj. That this cannot be an Estate Tail executed in Michael because the Estate for Life is not by the same Limitation but by Construction of Law But my Lord Coke says in Fenwick and Mitfords Case 1 Inst 22. b. that there is no difference where the Estate is created by Law and where by the Deed. 1 Anderson 259. and the Law retaining an Estate in Michael for Life our Case is the same as if the Estate had been limited to him with the Remainder to his Heirs Male begotten on his second Wife which would be an Estate Tail executed in Michael and would have discended to Ralph Twisden Justice for the Plaintiff I hold there 's no Use raised to Ralph by this Deed. We are here in the construction of a Deed and not of a Will It may be an Estate should be raised in such a case by a Will altho' my Lord Hobart is of a contrary Opinion I agree the Case of Hodgkinson and Wood Cro. Car. 23. but it cannot be argued from thence that it shall be so in a Deed for a Devise is not to take effect till after the Death of the Devisor and then 't is apparent that he is Heir Male of his Body It hath been agreed that Heirs Male of the Body are words of purchase It is plain that Ralph cannot take as Special Heir unless by Purchase and that he cannot do because he who shall take by virtue of such a Limitation ought to be Heir as well as Issue Male and Ralph here cannot take by vertue of the Statute de Donis Conditionalibis because none can take as Special Heir but where his Ancestor took before and therefore this Limitation is utterly void To make this Limitation good divers ways have been urged First That this Deed has an operation by way of returning of the Use and it has been compared to my Lord Pagets Case which differs from it here cannot be any part of the old Use in Michael for if he hath an Estate for Life it ought to be a new Use It cannot be a returning Use for the Limitation to the Heirs Male of the Body
of Jane the second Wife is void and it cannot be returning where the Use is not setled in any Person I agree my Lord Pagets Case because there the Estate was vested in William Paget and the other Use returned by operation of Law and the Estate setled could not be divested but here the Limitation to the Heirs Males being void the ancient Use remained yet in Michael for nothing was out of him he having limited a thing which cannot be And as to a returning Use tho' all be done in an instant yet there is a priority of time in the Eye of the Law for it ought to vest first in him in Remainder and then Return but here nothing vests in the Remainder Secondly It hath béen urged That it shall be made good by Implication of Law and so shall amount to a Covenant to stand seized to the Used of the Covenantor for Life c. and the rather as it has béen said by Wild because Uses are guided by Equity But I answer we are here in case of a Deed where an Estate shall not be raised by Implication as it shall by a Will Cro. Car. Seagood ad Hone 366. A Deed differs greatly from a Will for if a Man Surrenders Copyhold Land to two equally to be divided they are joynt-Joynt-tenants but such a Devise would have made them Tenants in Common Admit in some Case an Estate shall be raised by Implication in a Deed yet it shall not be so here for it would be to the disinheriting the Heir As to the case of 13 H. 7. I agree that a Devise to the Eldest Son after the Death of the Wife gives an Estate for Life to the Wife but otherwise it would be upon such a Devise to the Younger Son for there the Eldest Son and not the Wife should have the Estate in the mean time Cro. Jac. Horton and Horton 57. We are not herein Favorabili materiâ and therefore no construction shall be made which does not appear by the words It hath béen strongly urged that this being by way of Use which is a matter of Equity shall be favoured Admit it yet it shall be guided by the Common Law for aequitas sequitur legem There never shall be a Settlement by way of Use to make one capable who is not capable by the Common Law I do not see any difference between a Feoffment to Uses and a Covenant to stand seized for if a Feoffment be made to the use of one for Life the Use shall return which is not disposed of as well as upon a Covenant to stand seized Thirdly It has been urged if these severally cannot support this Limitation yet the intention operating with the Deed will both together make an Estate for Life in Michael But I do not see his intent here to have it for Life the intention even in a Will which is much stronger ought to be collected out of the words of the Will. Cro. Car. Spirt and Bence 368. agreed by the whole Court that words in a Will ought to have an apparent intent to disinherit an Heir and here there is not any apparent intent but rather to the contrary for of some Lands Michael Covenants to stand seised to the Use of himself for Life Remainder c. but of the Lands in question he makes a difference in the Limitation And the words of the Deed are to be considered He Covenants to stand seized to the Uses mentioned declared and limited in the Deed and if Michael shall have an Estate for Life he must have it by operation of Law There was a like case between Flavil and Ventroise in the Common Pleas in which the Court was divided but the same Point came afterwards in question in the Case of Mr. Tape of Norfolk and it was adjudged to be the ancient Use And no Case can be shewn that the Law will create an Estate in the Covenantor where the Use is not vested in any Person but the ancient Use remains in him As to the Cases cited on the other side I have answered my Lord Pagets's Case already And as to my Lord Cokes Case 1 Inst 22. b. I agree the Use returns and the Son is in by discent and so it was adjudged in Fenwick and Mitfords Case there cited But the Paraphrase he makes there I do not understand It is said there when the Limitation is made to his right Heirs and right Heirs he cannot have during his Life the Law doth create an Use in him during his Life Wherefore is this said to make the Heir in by discent No doubt without this he is in by discent and so was the Iudgment in that Case for what Reason then should there be an Estate for Life raised by the Law to be merg'd by the Fee as soon as raised And there 't is said Till the future use come in Esse I do not conceive then where it is so long as the Father lives and what he means by the Future Use I do not know for it always was in Esse and never was out of the Feoffor and this was so adjudg'd in that Case of Fenwick and Mitford and not the construction of my Lord Coke And t is strange that no other Reports should mention his construction Hale Chief Justice for the Defendant If Ralph takes either by Discent from Michael or by Purchase the one way or the other answers the Verdict and the Issue is for the Defendant I shall divide the Case into two Points 1. If he takes by Discent 2. Admitting he does not If he may take by Purchase as this Case is I shall Premise two or three things First It has been agreed if an Estate for Life be raised to Michael the Remainder being to his Heirs Male of the Body of Jane his second Wife the Estate Tail is executed in him be the Estate for Life raised by Implication or express Limitation Secondly It is plain quacunque via It be rais'd that the Estate was long'd in Michael till Ralph the Son be in a capacity to take it either by Discent or Purchase for be it part of the ancient Use or a new Use it ought to be in Michael during his Life for there is nothing to bring it out of him Thirdly In all Cases touching Uses there is a great difference between a Feoffment to Uses a Covenant to stand seized and a conveyance at the Common Law If a Man by Feoffment to uses conveys Land to the use of J.S. for Life he may remit the Use to himself and the Heirs Male of his Body by the same Deed and so alter that wich was before a Fee simple and turn it into another Estate but if A. gives Land to B. for Life Remainder to A. and the Heirs Male of his Body because a Man cannot give to himself the Remainder is void for a Man cannot convey to himself by a Conveyance at the Common Law These things being premised I conceive here is an
for if a Man Covenants to stand seized to a Contingent Use and afterwards is attainted of Treason before the Contingency happen the Contingency shall never rise for the King has the Estate discharged and the Use is to rise out of the Estate of the Covenantor so is Moor Sir Tho Palmers Case 815 In Moors Rep. of my Lord Pagets Case 194. It s said that W. Paget had an Amoveas manus for the Estate of the Queen leased by the Death of my Lord Paget In Sir Francis Englefeilds Case Popham 18. n. 7. It s resolved that no Use rises because t is that it shall Discend Remain or Come which is uncertain but if he had Covenanted that after his Death he and his Heirs would have stood seized to the Use of John an Use would have resulted to Sir Francis Second Point I conceive if it be impossible for Ralph to take by Discent this would be a Contingent Use in him by Purchase The great Objection against this is that the Limitation is to an Heir and an Heir which ought to take by Purchase ought not to be only Heir of the Body c. but Heir general Of this I am not well satisfied I conceive the Remainder being limited to the Heirs of the Body of Jane begotten by Michael such a Limitation will make a special Heir to serve the turn and t is not to be resembled to Shelley's Case My Reasons are First Because at the Common Law before the Statute de Donis notice was taken that this was a special Heir and therefore 't is no wrong done to make him here a qualified Heir In the Statute de Donis 't is said When Lands are given to Man and his Wife and the Heirs of their two Bodies begotten Secondly Vpon the special penning of the Deed it is apparent that Michael took notice that he had an Heir at Common Law therefore it can't be intended that he meant here such an Heir that should be Heir general to him this would be Contradictio in Adjecto Litt. Sect. 352. puts this Case If a Feoffment be made upon Condition that the Feoffee shall give the Land to the Feoffor and his Wife and the Heirs of their two Bodies begotten In this Case if the Husband dye living his Wife before the Estate Tail is granted to them the Feoffee ought to make the Estate as near the Condition and as near the intent of the Condition as may be viz. To let the Land to the Wife for her Life without impeachment of Wast the Remainder to the Heirs of the Body of the Husband on her begotten If the Husband and Wife dye before the Gift made then the Feoffee ought to make it to the Issue and to the Heirs of the Body of his Father and Mother begotten Suppose that this had been to a second Wife and there had been Issue by a former the Book of 12 H. 4. 3. says that there it shall be in another manner but Litt. says it shall be as near vid. Litt. Sect. 22. Morevils Case Fitzh Tail 23. 2 Ed. 3. 1. 4. Ed. 3. 50. by all these Cases it appears that no regard is had whether the Son be Heir of the Husband if he be Heir of their two Bodies Therefore it seems that by this Limitation Ralph shall take by way of Contingent Remainder For Heirs of the Body of the second Wife is a good name of Purchase I have not read any Case against this Hill 16. or 26 Eliz. there was this Case A Man taking notice in his Will that his Brother who was dead had a Son and that he himself had three Daughters who were his right and immediate Heirs he gave them 2000 l and gave his Land to the Son of his Brother by the name of his Heir Male. Provided If his Daughters troubled his Heir then the Devise of the 2000 l to them should be void And it was resolved that the Devisor taking notice that others were his Heirs the Limitation to his Brothers Son by the name of Heir Male was a good name of Purchase and this agrees with Cownden and Clarks Case in Hob. Wild Justice said he was of the same Opinion with Hale in this last Point And Iudgment was given for the Defendant Three Learned ARGUMENTS One in the Court of Kings-Bench BY Sir FRANCIS NORTH Attorny General And Two in the Court of Exchequer BY Sir MATTHEW HALE Chief Baron there The Argument of Sir Francis North. In Banco Regis Potter and Sir Henry North. IN a Replevin for taking of an Horse in a certain place called the Fenn at Milden-Hall in the County of Suffolk the Defendant makes Cognizance as Bayliff to Sir Henry North and saith That the place Where c. containeth Ten thousand Acres of Pasture in Milden-Hall whereof a certain place called Delfe is parcel and that it is Sir Henry North's Freehold and the Horse was Damage feasant there c. The Plaintiff Replies Confessing the Soyl to be the Freehold of Sir Henry Norths but says That time whereof c. the place Where hath been parcel of the Fenn and parcel of the Mannor of Milden-Hall of which Sir Henry North is seised in Fee and that the Plaintiff was at the time c. seised of an Ancient Messuage one of the Freeholds holden of the Mannor by Rents and Services and parcel of the said Mannor and that Time out of Mind there were divers ancient Freehold Messuages holden of the said Mannor by Rents and Services and divers Copyhold Messuages parcel of the said Mannor by Custom of the said Mannor demised and demisable by Copy of Court Rolls of the said Mannor And the several Tenants of the said Freehold Tenements being seised in their Demesn as of Fee and they whose Estate they have in the same Time out of mind have had together with the Customary Tenants of the said Customary Tenements the sole and several Feeding of 100 Acres of Pasture for all Beasts except Hogs Sheep and Northern Steers levant and couchant upon their several Freeholds every year at all times of the year as to their several Freeholds belonging And that within the said Mannor there is and Temps d'ont c. hath been such a Custom that the several Tenants of the Customary Messuages together with the Freeholders aforesaid have used and accustomed to have the sole and several Feeding of the said 100 Acres of Pasture for all their Beasts except Sheep Hogs and Northern Steers levant and couchant upon their several Copy-holds every year at all times in the year tanquam ad seperal ' Tenementa customar ' spectant ' pertinent ' and the Plaintiff being seised put in his Horse c. and so Iustifies Vpon this the Defendant demurs generally This Prescription is naught in substance and Judgment ought to be given for the Defendant upon these Four Exceptions First That several Freeholders cannot joyn or be joyned in a Prescription to claim an entire Interest in another mans Soyl as
annexed to their several Estates Secondly The Interest of sola seperalis Pastura is an entire Interest and cannot be claimed both by Prescription and Custom Thirdly That the Owner of the Soyl cannot be wholly excluded out of the Soyl at all times as this Prescription and Custom import Fourthly This is a new Invention in Pleading framed to overthrow a Maxim in Law and is of mischievous Consequence Tho' but one man pleads yet 't is a Joynt Prescription that he Iustifies by and he involves all their Estates in his Prescription and prescribes for the whole thing belonging to all their Estates so that 't is the same thing in substance as if they had joyned in Pleading If he had pleaded That he together with all the Freeholders and Copyholders c. he had prescribed alone and only for himself but that would have been naught because the sole Pasture cannot by any Title or Prescription be annexed to their several Estates as shall be shewn afterwards First I shall consider the Nature of the thing Secondly The Rules of Prescription Thirdly Examine the Case by those Rules First I admit that there is a sole and several Pasture and that it lies in Prescription Cases are frequent where one man hath the first Crop and the Soyl and another man hath the Pasturage or sole Feeding till the Sowing again c. I conceive it to be in its Nature a certain and determinate Interest or Profit I mean in distinction to an incertain Profit a prender To have Common or Pasturage for Beasts levant and couchant upon such Land or to have Estovers to be spent in such an House without any determinate quantity or number I call incertain for it is to be measured only by Vse and Occasions But to have Pasture or Common for 100 Sheep or Estovers of a certain quantity as ten Load of Wood is certain every year and differs very much in its Nature from an incertain profit a prender As for Example The Levancy and Couchancy is not traversable nor the employment of Estovers certain because that no Surcharge can be to the Owner Yelv. 188 189. It may be granted from the Land a que 2 Cro. 15. Drury and Kent for the same Reason in case of sole Pasturage the party that claims it having a general Interest and the Owner being wholly excluded it is not material with what Cattel it be taken tho' they prescribe with an Exception of some for if there be an Overplus the Owner cannot have it Now as there may be such an Interest so I admit that several persons may have it but it must be as Joyntenants or Tenants in Common where they have several Rights by Moieties and Purparties But several men cannot claim the Entiertie of this profit by Prescription as I shall after shew If such a Profit a prender as this be annexed to Land 't is appurtenant by Prescription or Grant and if part of the Land a que c. is aliened the Entiertie cannot belong to both their Estates but there shall be an apportionment scilt the Alienee shall have the same proportion for the sole Pasturage that he has of the Land a que c. in the same manner as it would be in a Case of Common appurtenant certain for which there will be an apportionment in such cases as was Adjudged 7 Jac. inter Moreton Woods 1 Rolls 235. Having said this concerning the Nature of the Interest demanded I will now speak concerning the Nature and Rules of Prescription A Prescription that is to claim a real Interest of Profit in solo alieno is a Title and as a Title must be strictly and curiously pleaded and is not like Prescriptions that are by way of Discharge and for Easments or for Matters of personal Exemption or Priviledge A man may lay a Prescription in a great many where it tends but to claim an Easment or Discharge and not Matter of Interest and Profit 15 E. 4. 29. 18 E. 4. 3. to say That all the Inhabitants have had such an Easment c. or to have been Discharged c. will be well And for Matters of Priviledges a Prescription may be in General for it is but a Matter of Exemption and Personal and is called a Prescription in distinction to a Custom because Custom is meerly local and this is to persons yet having respect to such a place as All the Citizens c as in Day and Savage's Case in Hob. Rep. Or having respect to such a Condition as All Serjeants at Law or All Attorneys of such a Court such Prescription must be in generalty to express the extent and nature of the Priviledge and so always have been allowed But a Prescription to claim a Profit or an Interest in alieno solo is a Title and as in setting forth Titles the Law is curious in pleading and lays down strict Rules which must be observed so in pleading such Prescriptions the Rules taught in our Books and the Course of Pleading hitherto used must be followed One Rule of such Prescriptions is That the Thing prescribed for by a que Estate not in gross but appendant or appurtenant must agree in the Nature and Quality of the thing to which it is annexed or appurtenant Corporeal things cannot be appurtenant to Corporeal because they are distinct and can have no relation one to another Estovers of Wood cannot be appurtenant to Land because they cannot be used for it 1 Inst 121. b. 122. a. If a man would plead That he and all those whose Estate c. in Black-Acre c. Time out of mind have had Ten Load every year to be taken c. tanquam spectant ' c. upon Demurrer this would be naught because it does not agree with the Rules of Law And Usage may be objected in that case but Usage alone makes but a Title in gross which will serve when it has Time out of mind continued in the same Hereditary line Usage cannot annex a Thing that cannot in nature be used with the Thing to which it should be annexed One other Rule of Prescription for Matters of Interest is That nothing can be prescribed for that cannot at this day be raised by Grant For the Law allows Prescriptions but in supply of the loss of a Grant Ancient Grants happen to be lost many times and it would be hard that no Title could be made to things that lye in Grant but by shewing of a Grant Therefore upon Usage temps d'ont c. the Law presumes a Grant and a Lawful beginning and allows such Usage for a good Title but still it is but in supply of the loss of a Grant And therefore for such things as can have no Lawful beginning nor be Created at this day by any manner of Grant or Reservation or Deed that can be supposed no Prescription is good 11 H. 7. 13 14. 13 H. 7. 16. per Keble 21 H. 7. 40. Prescription for a Lord to have so
Circumstance that Special Matter or Circumstance must be shewn to the Court by him that would have the advantage of the Prescription for the Negative cannot be averred on the other side And it cannot be helped by supposing there may be Trees Mines or Park but it ought to be shewn for every thing that depends upon supposition may as well not be as be and to allow a Prescription upon such a supposal would be to bind up a party by it tho' the thing be not and Pasturage may well be supposed the whole profit of Pasture Ground for it is so in fact in many places and has its name because it is fed all the year But Where it is fed but part of the year and mowed or plowed the rest it is called Arable or Meadow The main Objection that I conceive they can make to this is That the Sole Pasturage or Vesture lies in Grant and the Owner may exclude himself wholly by Grant and so he may be excluded by Prescription or Custom and this they ground upon Co. Litt. 4 b. where it is said if a Man Grants to another and his Heirs vesturam terrae and makes Livery secundum formam Chartae yet the Freehold of the Soil shall not pass by which it is implied that the Vesture shall If this Book be to be understood of the Vesture at all times of the year where no other profits remain to the Lord I shall crave leave to object against it from the same Page where it is agréed that if it were profits the Soil would pass Methinks it should be the same in reason where the Vesture is all the profits and Vesture shall be intended all the profits I shall cite some Authorities which are not inconsiderable to Warrant this Opinion I have in a Manuscript Report of Cases in King James's time a Case betwixt Collins and the Bishop of Oxford It was Paschae 19. Jacobi upon a Tryal at Bar in the Kings Bench. The Case was that 1 Ed. 6. the King erects the Bishoprick of Oxford and gave to the Bishop and his Successors in t ' al' primam vesturam of a Meadow called Horse Meadow John Bridge Bishop of Oxford leased it for three Lives rendring Rent and dies his Successors before restitution of the Temporalties accepted the Rent of the Lessee and afterwards entred upon him Vpon this Case the first question was what passed by the Grant of prima vestura My Report says That it was agreed by all the Justices that by a Grant of Vestura Terrae by a common Person the Soil will pass and then there must be a Livery of consequence but they held a Grant of prima vestura was but like a Grant of prima tonsura and being for no certain time is but an Interest in the first cutting or taking of the Grass But they all agreed that if a Man Grants primam vesturam from such a day to such a day certain the Grantee shall have the Soil and Mow it or Feed it as he pleases Kelway 118. If a Man Grants vesturam Terrae for term of Life to another it is a Grant of the Land for Life for saith the Book the vesture is the profit of the Land and it is all one to have the profit as to have the Land it self Littleton puts the Case if a Man Grants the Vesture of Land to another and his Heirs without Livery no Estate passeth But the Book of my Lord Cokes difference betwixt the Vesture of the Land and the profits of the Land seems to be mistaken and in reason they are the same for I take it generally speaking Vesture shall be intended all the profits and if there be special profits as Mines opened or Waters c. which may qualifie the word and retain the Soil to the Owner it must be shewn And as it is for Vesture of Land so I conceive where it appears in Pleading that the Ground is Pasture Pasturage or Sole Feeding will signifie all the profits for Pasture is properly that which is wholly for Feeding and where the Sole Pasture is claimed the Owner cannot claim or take any other profit Temps E. 1. tit Partition 21. Two Men agree to make partition of Pasture Ground in this manner That one shall have totam pasturam from such a time to such a time and the other for the residue of the year this is a partition of the Soil it self which shews Pasture is to be intended the whole profits of Pasture Ground in that case the quo jure could not be maintained for the party had not barely a Liberty but the Soil it self If several Men have Profits upon the same Land alternis vicibus the Law most commonly determines the right of the Soil to be in him that has the most considerable Profits As for Example If one has the Summer Feeding of Pasture or the first Tonsure of Meadow or the Sowing and Reaping of Corn upon Arable and an other Man has the Feeding separately at other times of the year the Law saith that the Soil is in him that has the Summer profits and Corn because it is the greater Profits and the other hath but a Profit a prender Now suppose that two Men have interchangeably the sole Feeding of Pasture at such times that the interest of one is in all respects equal to that of the other there nothing can determin the Soil to be in one more than the other and therefore it shall be in one for his time and in the other for his time But where one has the sole feeding of Pasture at all times in the year and it has been so time out of mind and there is nothing but Pasture what can the other have to shew the Soil to be in him and why should it not be said to be in him that has the Feeding or whole Profits It seems very absurd that a Man should be allowed to be Owner of the Soil and yet it may be has no badge of Ownership by Perception of Profits If the Mans Estate be displaced so as to be put to a Writ of Right how should he lay the Esplees And as to this Consideration there may be difference betwixt a Grand and Vsage for a Grant beginning within time of Memory the Ownership of the Soil was once fully manifested until he had divested himself of all but that but upon Vsage time out of mind nothing can be said why one Man should have the Soil more than another if it be not in him that hath all the Profits I must end this Point also with this Observation That if there is no Case in all the Books of a Sole Pasture at all times of the year but in F. N. tit Prescription 51 and 55 and Hutton 45. It is made a Profit a prender and the most considerable Proâ—â—ts are left to the Owner My fourth Reason upon which I hold this Prescription is void is because it is a new invention framed to overthrow
Usage in England is that the Archbishop is Guardian of the Spiritualties in the Suffragan Diocess 225 234 Blasphemy Blasphemous Words not only an Offence to God and Religion but a Crime against the Laws State and Government and Christianity is parcel of the Laws of England 293 Bond. See Obligation What Bond a Gaoler may not take of his Prisoner 237 The Condition of a Bond or Covenant may in part be against the Common Law and stand good in the other part ibid. C. Certiorari PRisoners cannot be removed by Certiorari from a Country Gaol till the Indictment be found below 63 Lies to remove an Indictment of Manslaughter out of Wales to be Tryed in the next English County 93 So of Murder 146 Challenge What is good Cause and where Cause shall be shewn 309 Where the Kings Council shall shew Cause ibid Chancery Tryals directed out of Chancery the Course 66 Answer in a Court of Equity Evidence at Law against the Defendant 212 Churchwardens Bring Account against their Predecessor for a Bell whether it shall be said to be de bonis Ecclesiae or de bonis Parochianorum 89 Whether they may refuse to take the Oath to present and how to proceed 114. 127 General VVords to present Offenders do not extend to the Church-warden himself but relate only to the rest of the Parish 127 May make Rates themselves if the Parishioners are Summoned and refuse to meet 367 Common See Pasture Where Common is claimed for Beasts Levant and Couchant on certain Land no other Beasts ought to be put on the Common but those of the Tenant of the Land to which it is appendant or those which he takes to compester his Land 18 A Man cannot prescribe for Common by a Prescripeion that is unreasonable 21 Common apurtenent for Beasts Levant and Couchant how pleaded 54 Common in another Mans Soyl how to be claimed 383 A Commoner cannot prescribe to exclude his Lord 394 The Comencement of Commons 395 In a Title of Common for Beasts Levant and Couchant the Levancy and Couchancy is not Traversable 385. Nor material among Commoners 397 Condition What Words make a Condition what a Limitation and what Conditional Limitation 202 203 Conspiracy If one be acquitted in an Action of Conspiracy the other cannot be guilty but where one is found guilty and the other comes not in upon Process or Dyes yet Judgment shall be against the other 238 Indictment lies for Conspiring to charge with a Bastard Child and thereby also to bring him to disgrace 305 Constable See Attorney Tenant in Antient Demesne not excused from serving Constable 344 Contingency See Grant Remainder Conveyance Contingent Estates what and how destroyed 215 334 Whether a Descent in Tayl prevents a Contingent Remainder 306 Contract A Verbal Contract cannot create a Penalty to oblige the Heir 76 Conveyance The Modern VVays of Conveyancing to prevent the disappointing Contingent Estates 189 VVhere a Conveyance is good before Inrolment and where not 360 Difference between a Conveyance at Common Law and a Conveyance to Uses 373 378 Copyhold See Pasture Admittance of Tenant for years is an Admittance of him in the Remainder 260 VVether Copyholder for Life in Reversion after an Estate for Life in being can Surrender to a Lord Disseizor 359 Coroner VVhere a Melius Inquirendum shall be granted after a Coroners Inquisition super visum Corporis 182 A Coroners Inquisition that finds a person Felo de se non Compos may be Traversed 278. And quasht 352 Corporation VVhat they can do without a Deed and what not 47 48 Costs See Assault and Battery Treble Costs in an Action on the Stat. 8 H. 6. of Forcible Entry 22 Costs where payable in a VVrit of Error 88 VVhere payable by an Executor 92. and Administrator 110 116 If an Executor be sued and the Plaintiff Non-suit he shall have Costs but an Executor Plaintiff shall pay no Costs upon a Non-suit 94 Costs and Damages not to be given in an Action Popular 133 Costs de Incremento 337 362 Covenant VVhat Collateral matters shall be implied upon a Covenant 26 44 45 Thô a Covenant be made only to a Man his Heirs and Assigns yet if a Breach be in his Life time his Executors may bring the Action for Damages 176 VVhere a Covenant shall bind notwithstanding a subsequent Act of Parliament 175 176 Covenant with an Intended VVife whether discharged by subsequent Marriage 344 Courts See Jurisdiction Inferiour Courts cannot make a Continuance ad Proximam Curiam but always to a Day certain 181 Customs See Prescription To maintain a Common Key for the unlading of Goods and therefore every Vessel passing by the said Key to pay a certain Sum a void Custom as to those Vessels which did not unlade at the said Key 71 A Custom that Lands shall descend always to the Heirs Males tho' of the Collateral Line Good 88 D. Damages See Costs NOne but the Courts at Westminster can increase Damages upon View 353 Date See Lease Demurrer The old way of Demurring at the the Bar 240 Devastavit See Executor Return Devise Whether a Termor may Devise in Remainder and limit a Possibility upon a Possibility 79 To Dr. V. during his Exile from his Country what Estate passes 325 Divers parcels of Lands being devised whether these words the said Lands pass all the parcels or only the last mentioned 368 A Devise of Lands to two equally to be divided makes them Tenents in Common 376 Discents The various Kinds of Discents or Hereditary Successions and the Rules whereby they are to be governed 414 The Discent from a Brother to a Brother thô it be a Collateral Discent yet it is an immediate Discent 423. And therefore two Brothers Born in England shall Inherit one the other tho' the Father be an Alien 429. Secus in Cases of Attainder 416 417 If the Son purchase and have no Kindred on his Fathers side but an Alien his Estate shall discend to the Heir on the part of his Mother 426 Distress Whether in Distress for Rent Horses may be severed from a Cart 36 An Information lies not against a Landlord for taking excessive Distress of his Tenents 104 Hindring the Carrying off a Distress a provocation to make killing no more than Homicide 216 Dower The regular proceedings therein 60 Whether a Suit for Dower may be commenced by Plaint in an Inferiour Court without special Custom 267 E. Ecclesiastical Persons PRivilidges from Offices 105 Death of a Parson c. doth not make such a Non-residence as shall avoid a Lease 245 What Leases they may make and what not 245 246 Clergy Men are liable to all publick charges imposed by Act of Parliament in particular for reparation of the Highways 273 Of the Induction of Clerks by whom to be made 309 319 Election Where a thing depends upon Election what course is to be observed 271 Entry Where in Ejectment actual Entry is necessary 332 Error See Executors To reverse a Judgment
of the Crown so 11. and so it was held in the Case of the Earl of Essex in Queen Elizabeths Time and in the Lord Cobham's Case in the Reign of King James the First And the Chief Justice cited the Statute made 29 H. 6. cap. 1. upon the Rebellion of Jack Cade which Act sets forth that John Cade naming himself John Mortimer falsly and traiterously imagined the Death of the King and the destruction and subversion of this Realm in gathering together and levying of a great Number of the King's People and exciting them to Rise against the King c. against the Royal Crown and Dignity of the King was an Overt act of imagining the Death of the King and made and levied War falsly and trayterously against the King and his Highness c. So that it appears by that Act that it was the Iudgment of the Parliament That gathering Men together and exciting them to Rise against the King was an Overt Act of Imagining the Death of the King Vide Stamford's Pleas of the Crown fo 180. And according to this Opinion Judgment was given against Harding in the following Sessions and he was Executed thereupon NOta At an Adjourned Sessions held the 19th of May 2 Willielmi Mariae it appeared that one of the Kings Witnesses which was to be produced in an Indictment for Treason had been the day before Challenged to Fight by a Gentleman that it was said was a Member of the House of Commons he was by the Court bound in a Recognizance of 500 l to keep the Peace And because it appeared the Witness had accepted the Challenge he was bound in the like Sum. NOta Vpon an Appeal to the House of Lords Anno 2 Willielmi Mariae the sole Question was Whether upon the Statute of Distributions 22 23 Car. 2. the half Blood should have an equal share with the whole Blood of the Personal Estate And by the Advice of the two Chief Justices and some other of the Judges the Decree of the Lords was That the Half Blood should have an Equal share Samon versus Jones IN an Ejectment brought in the Court of Exchequer in the year of the Reign of the late King James the Second The Case upon a Special Verdict was to this effect William Lewis seised of a Reversion in Fee expectant upon an Estate for Life did by Deed Poll in Consideration of Natural love and affection which he had to his Wife and Robert Lewis his Son and Heir apparent begotten on the Body of his said Wife and to Ellen his Daughter give grant and confirm unto the said Robert Lewis the Son all those Lands c. the Reversion and Reversions Remainder and Remainders thereof To have and to hold to his Son and his Heirs to the Vses following viz. to the use of himself for Life and then mentioned several other Vses not necessary to be here mentioned as not material to the Point in question and then to the use of the Wife for Life and after to the use of Robert and the Heirs of his Body and for want of such Issue to the use of Ellen the Daughter and the Heirs of her Body c. William Lewis and his Wife died Robert the Son devised the Estate to the Lessor of the Plaintiff and died without Issue Ellen was in possession and claimed the Lands by this Deed in which thâ—re was a Warranty but no Execution of the said Deed further than the Sealing and Delivery was had either by Enrolment Attornment or otherwise So that the sole Question was Whether this Deed should operate as a Covenant to stand seised or be void And it was Adjudged to amount to a Covenant to stand seised in the Court of the Exchequer And upon a Writ of Error brought upon the Statute of Ed. 3. before the Commissioners of the Great Seal and others empowered by that Act to sit upon Writs of Error of Judgments given in the Court of Exchequer the said Judgment was Reversed by the Opinion of Holt Chief Justice of the Kings Bench and Pollexfen Chief Justice of the Common-Pleas And upon a Writ of Error before the Lords in Parliament brought upon the said last Judgment it was Argued for the Plaintiff in the VVrit of Error That this should enure as a Covenant to stand seised to the use of the Wife Son c. It appears by Bedell's Case in the 7 Co. and Foxe's Case in the 8 Co. that the words proper to a Conveyance are not necessary but ut res magis valeat a Conveyance may work as a Bargain and Sale tho' the words be not used so as a Covenant to stand seised tho' the word Covenant is not in the Deed and and Poplewell's Case were cited in 2 Roll. Abr. 786 787. A Feme in Consideration of a Marriage intended to be had between her and J. S. did give grant and confirm Lands to J.S. and his Heirs with a Clause of VVarranty in the Deed which was also Enrolled but no Livery was made It was Resolved to operate as a Covenant to stand seised Vide Osborn and Churchman's Case in the 2 Cro. 127. which seems contrary to that Case but the chiefest Case relied upon was that of Crossing and Scudamore Mod. Rep. 175. where a man by Indenture bargained sold enfeoffed and confirmed certain Lands to his Daughter and her Heirs and no Consideration of Natural Love or Money exprest This was Resolved 22 Car. 2. in B.R. to operate as a Covenant to stand seised and upon a Writ of Error in the Exchequer Chamber the Judgment was affirmed It was said on the other side for the Defendant That the Case at Bar differed from the Cases cited for here the Intention of the Deed is to transfer the Estate to the Son and that the Vses should arise out of such Estate so transferred In the Cases cited no Vses are limited upon the Estate purported or intended to be Conveyed but only an Intention appearing to convey an Estate to the Daughter in Crossing's Case and to the intended Husband in Poplewell's Case and seeing for want of due Execution in those Cases the Estate could not pass at Law it shall pass by raising of an Vse But the Case at Bar is much the same with the Case of Hore and Dix in Siderfin the 1st Part. 25. where one by Indenture between him and his Son of the one part and two Strangers of the other part in Consideration of Natural love did give grant and enfeoff the two Strangers to the use of himself for Life Remainder to the Son in Tail c. and no other Execution was three than the Sealing and Delivery of the Deed this was Resolved not to raise an Vse for the Vse was limited to rise out of the Seisin of the Strangers who took no Estate Vide Pitfield and Pierce's Case 15 Car. 1. Marche's Rep. 50. One gave granted and confirmed Lands to his Son after his Death this Deed had been
Hazard a general Declaration good without setting forth Cross Considerations 175 A Promise to one Part being void cannot stand good as to the other 224 Attorney An Attorney has Priviledge to lay his Action in Middlesex because of his Attendance 47 Averment Whether an Agreement may be pleaded and averr'd to shew the meaning of the Parties and that the Condition of a Bond may be taken accordingly 108 Quarter-days may be averr'd upon these General Words The usual Feasts 141 Authority See Vmpire Where an Authority is once fully Executed the Power is determined Not so where there is a compleat Execution 115 Where a man is vested with a bare Authority his denial or refusal to execute it does not conclude him but that he may execute it afterwards 116 Secus where he is vested with an Interest 117 Award See Arbitrament B Bail See Pleading THe Plaintiff may release his Action after the Sheriff hath taken a Bail-Bond 131 Attachments out of Chancery within the Statute that enables the Sheriff to take Bail-Bonds 238 How far a Bail-Bond may vary from the Writ 238 Bankrupt Trover and Conversion brought by an Assignee of Commissioners of Bankrupts against one possest of Bankrupt's Goods 63 The Commissioners cannot assign Money levied at the Bankrupt's Suit in Execution remaining in the Sheriffs hands or in Court 95 A Bankrupt's Servant shall set forth an Account of the Bankrupts Estate in his Answer to a Bill in Chancery tho' he hath been already Examined before the Commissioners 358 Baron and Feme If a Woman be Warden of the Fleet and one in Prison there marry her he is thereby out of Prison and in the Eye of the Law at large being a Husband cannot be in Custody to his Wife 19 Battery brought for both and found only as to the Wife tho' they cannot joyn for beating both yet good after Verdict 29 That Baron and Feme Executrix devastaverunt converterunt ad usum iplorum good 45 In an Action brought against the Husband for Lodging and Goods had by the Wife after Elopement what Plea shall be good what not 155 Whether the Wife may joyn with her Husband in bringing Trespass Quare Clausum fregit where the Land is the Wives 195 A Supplicavit de bono gestu granted in Chancery against the Husband for ill Usage to his Wife 345 Bond or Bill Penal See Obligation By Law A Corporation cannot make a By-Law to bind those which are not of its Body without Act of Parliament or express Prescription 33 Whether a By-Law of the University of Oxford shall oblige the Townsmen 33 34 A Corporation cannot make a By-Law to have a Forfeiture levied by sale of Goods nor for Forfeiture of Goods 183 C Canons THose of 3 Jac. 1. of force tho' never confirm'd by Act of Parliament 44 What Canons of force what not ibid. Challenge To the Array because the Sheriff in 1687. had not taken the Test the Challenge disallow'd 58 Chancery See Covenant Mortgage Trial Limitations Executor An Infants Answer in Chancery by Guardian no Evidence at Law to affect the Infant 72 There can be no Process of Contempt in Chancery against a Peer 342 Purchaser without Notice of Incumbrance favour'd in Chancery 339. 343 Words of Conveyance passing more than was intended how relievable in Chancery 345 A Trust and Equitable Interest is a Creature of the Chancery and therefore disposable by the Rules of that Court 350 Where a man leaves his Estate under several Incumbrances if the Heir buys in any of the first they shall not by the Course of this Court stand in the Way of Creditors for more than the Heir really paid for them 353 Relieves an Heir against Extortion 359 What shall be admitted to be read in Chancery what not 361 Distribution of Intestates Estate upon the Statute of 22 23 Car. 2. cap. 10. may be sued for in Chancery 362 Where a Bill is Exhibited to examine in prepetuam rei memoriam the Plaintiff must not pray Relief 366 Commitment What Commitment of Justices of the Peace for refusing to find Sureties of Good Behaviour good what not 22 23 24 Condition Condition of a Bond not to give Evidence at the Assizes against Law and the Obligee ought to be prosecuted for taking such a Bond 109 Consideration See Vse Notice Grant Enrolment Marriage Mortgage Conveyance Conveyances at the Common Law not such as work by the Statute of Vses or Surrenders of Copy-holds divest the Estate out of him that makes them immediately and put it in the Party to whom such Conveyance is made tho' in his Absence or without his Notice till he shews his disagreement 201 What Acts are requisite in Conveyances at Common Law 201 202 Atricles to Settle decreed to be executed by the Heir at Law 343 A Voluntary Conveyance defective at Common Law rarely relieved in Chancery 365 Copyhold See Action on the Case In what Cases and when the Lord shall seize the Copyhold Estate of his Tenant for Felony or Treason 38 Lands do not appear to be Copy-hold by saying they were held according to Custom unless it be said at the Will of the Lord 144 A Copyholder in Pleading need not shew admittance where the Title does not come in question as in Avowry for Rent reserved from his Under Tenant 182 Corporation See By-Law A Corporation cannot prescribe in a Que Estate â— sed quere 186 Costs See Nonsuit The Court cannot allow double Costs unless the Judge of Assizes caused the Postea to be mark'd 45 Divers Trespasses assigned the Defendant pleads Not Guilty for some and Justifies for others and the Jury find for the Plaintiff in one Issue and for the Defendant on the other no more Costs than Damages 180 195 What Costs discharged by the General Pardon and what not 210 No Costs to either Party upon a Repleader 196 Full Costs in Trespass given where the Damage was under 40 s 215 Covenant See Grant Trespass An Attorney Covenants on behalf of another Person that the Plaintiff shall quietly Enjoy an Action of Trespass is brought against the Plaintiff Whether this is a Breach of the Covenant 46 61 62 In an Action of Covenant the Defendant cannot plead that the Plaintiff tempore quo nihil habuit in tenementis tho' such Plea in an Action of Debt for Rent is good 99 Where Lessee Covenants to build three Houses upon the Premisses and keep them in Repair he builds four and lets one fall to decay Whether the Covenant extends to the fourth 128 A Covenant which does not consist with the Recital that leads and occasions it shall not oblige 140 A Suit in Chancery to stay Waste no Breach of Covenant for quiet Enjoyment tho' the Bill be dismist with Costs 213 214 A Latter Covenant by a second Indenture cannot be pleaded in Bar to the former but the Defendant must bring his Action on the last Indenture if he will help himself 218 Custom See Fine D Damages See Costs Debt
See Rent IF part of a Debt upon Bond be received and an Acquittance given before the Action it is a Bar only of so much as was received but if after the Action brought it seems it may be pleaded in bar to the Whole 135 Whether an Action of Debt may be brought upon a Judgment pending a Writ of Error and whether the Defendant in such Action ought to Demur or plead Specially 261 A Consideration creates a Debt tho' that Debt be not reduced to a certain Sum as in the case of a Quantum meruit 282 Debt secured is Payment in Law 358 Devise See Tail Vse Of implicit Devises and where Lands shall pass by Implication in a Will and where not 56 57 A Reversion shall pass in a Will by the Words All my Hereditaments 286 Whether Money in the Court of Orphans be devisable 340 If Money be devised to one to be paid at his Age of 21 years if the Party dies before it shall go to his Executors but if Money be bequeathed to one at his Age of 21 years and he dies before the Money is lost 242 366 Where a Sum of Money is devised to a Child at such an Age it shall have the Interest in the mean time rather than the Executor shall swallow it especially when no Maintenance is otherwise provided 346 Devise to J.S. at the Age of 21 and if J.S. dies before 21 then to A A. dies after J. S. dies under 21 the Administrator of A. shall have it 347 If Lands be devised for payment of Debts and Legacies the Personal Estate shall notwithstanding as far as it will go by apply'd to the payment of Debts c. and the Land only make up the Residue 349 Where an Administrator shall have an Estate devised to an Infant and where not 355 356 A Sum of Money devised to be raised out of the Profits of his Lands the Profits will not amount to the Sum the Land may be sold 357 Diversity where a Child's Portion is devised out of Personal Estate and where to be raised out of Land 366 367 Distress Whether a Drover's Cattel put into a Ground belonging to a Common-Inn upon the Road to London may be distrained for Rent due from the Innkeeper 50 Leave given to mend the Conisans upon a Distress after a Demurrer paying Costs 142 A Distress may not be sever'd as Horses out of a Cart and therefore in some Cases a Distress of great Value may be taken for a small matter because not severable 183 Where one holds a Third part of certain Land and another two Third parts of the same Land undivided he who hath the One part cannot distrain the Cartel which were put in by Licence of him who hath the two Parts 228 283 E Ecclesiastical Court See Marriage WHether the Ecclesiastical Court may proceed against Conventicles or whether they be punishable only at the Common Law 41. They may 44 The legal Method of Proceedings in the Ecclesiastical Courts 42 43 The Proceeding ex Officio 43 A Suit may be tryed in the Ecclesiastical Court upon a Prescription to Repair the Chancel so also for a Modus Decimandi 239 Ecclesiastical Persons A Curate incapable of taking an Estate devised in Succession for want of being Incorporate but the Heir of the Devisee shall hold the Estate in Trust for the Curate for the time being 349 Ejectment In Ejectment the Declaration of Michaelmass Term and the Demise laid 30 of October after the Term began 174 Elegit See Execution Enrolment A Deed where the Grant is exprest to be in Consideration of Natural Affection as well as Money need not be Enrolled but the Land will pass by way of Covenant to stand seised 150 Error See Debt Essoine Where several Tenants in a Real Action may be Essoigned severally 57 Regularly Proceedings in an Essoine in Dower 117 Estate What Words shall create a Tenancy in Common 265 266 Evidence See Action on the Case Chancery Exchange Bills of Exchange have the same Effect between others as between Merchants and a Gentleman shall not avoid the Effect by pleading He is no Merchant 295 310 The Custom of Bills of Exchange 307 310 Execution How the Sheriff ought to behave himself in Executing a Fieri facias 94 95 Whether Money paid for Goods taken upon a Fieri facias is properly paid to the use of the Sheriff or Plaintiff ibid. A Fieri facias was executed after the Party was dead upon the Goods in the hands of the Executor but Teste before tho' not delivered to the Sheriff till after This was a good Execution at the Common Law but quaere since the Statute of 29 Car. 2. cap. 3. 218 An Extent upon an Elegit being satisfied by perception of Profits he in Reversion may enter 336 Executor See Award Rent Waver And Executor may detain for a Debt due upon a simple Contract against a Debt grounded upon a Devastavit 40 Whether the Executor of a Bishop may bring an Action of Covenant for breach of a Real Covenant relating to Lands of the Bishoprick 56 Where a Woman disposes of Goods as Executrix in her own wrong if she takes Administration afterwards tho' before the Writ brought this will not hinder the Plaintiff from charging her as Executrix in her own wrong 180 An Executor in his own wrong cannot retain ibid. The Mother Executrix shall not discount for Maintenance and Education out of the Money left by the Father for the Mother ought to maintain the Child But Money paid for binding him Apprentice may be discounted 353 After an Executor assents to a Legacy he shall never bring it back again to pay Debts Secus where he is sued and pays by Decree in Chancery there the Legatee shall refund 358 Where an Executor pays a Debt upon a Simple Contract there shall be no refunding to a Creditor of a higher nature Vid. Legacy 360 Money decreed in Chancery to the Executor of an Administrator do bonis non and not the second Administrator de bonis non where no Debts appeared of the first Intestate 362 Minority as to Executorship determines at the Age of 17 and then a Personal Estate devised to such Executor vests in him 368 Exposition of Words Faldagium 139 The force of these Words in forma praedicta 215 F Fieri facias See Execution Fine WHere and how a Fine levied by a Feme-Covert shall be set aside and where the Commissioner who took it may be fined by the Court 30 A Fine acknowledged before the Revolution and Writ of Covenant sued out after allowed good 47 48 A Right to an Estate by Extent barr'd by a Fine and Non-claim 329. So also the Right to a Term for years ibid. Secus where a Statute is assigned in Trust to wait upon the Inheritance 330 Fine Customary What Customary Fine between Lord and Tenant shall be allow'd good upon Alienation 134 135 Forfeiture See Office Generally where a Statute gives a Forfeiture and not said to
he had a way over the place where it is not material to the justification whither it leads it being after a Verdict when the right of the case is tried And it is aided at last by the Statute of Oxford 16 Car. And so Twysden said it was the Opinion of all the Iudges at Serjeants Inn he putting the Case to them at Dinner Norris and Cuffuil IN an Action upon the Case the Plaintiff declared That the Defendant in consideration of six pence paid in hand the 13 of Jan. 17 Car. and that the Plaintiff would pay him 20 s a Month he promised to serve him in his Glass-house after the first Iourny of Glass and sets forth quod primum iter vitrij tunc prox sequens aggreamentum praedictum fuit 21 Feb. 17 Car. which was the year before and that the Defendant did not come to serve him After Verdict for the Plaintiff it was moved in Arrest of Judgment That the Plaintiff had not declared sufficiently of any Iourny of Glass after the Agreement but that alledged appears to be the year before Et Adjornatur This Case being moved again Twysden said he had put it to the Iudges at Serjeants Inn and they were all of Opinion that it was well enough after a Verdict Heath versus Pryn. IN an Ejectione Firmae of the Rectory of Westbourn in Chichester upon Not Guilty pleaded it appeared upon the Evidence that the Plaintiffs Title was as Presentee of the Grantee of the next Avoidance from the Lord Lumly and Letters of Institution under the Seal of the Ordinary were produced but by reason of the times the Ordinary Parson and Patron being Sequestred no Induction followed thereupon until the Kings Restauration this Institution was 1645. Soon after the Defendant was placed in this Church by an Ordinance of Parliament and hath enjoyed it ever since and there was an Act of Parliament made 12 Car. 2. which confirms Ministers in their Possessions of any Benefice with cure tho' they came not in by Admission Institution and Induction but according to a Form used in those times in which Act there is also a Clause of Restitution of sequestred Ministers to such Benefices as they had been seized of by taking the profits It was alledged on the Defendants side that the Plaintiff proving nothing of a Presentation the Institution could not be admitted as Evidence of it especially in this case where the Induction was so long after to which the Court did incline And then the Oath of the Grantee of the next Avoidance was offered which was not admitted altho' his Interest was executed by the Presentment And it was said that an Assignor might be sworn a Witness to the Assignment of a Lease where there were no Covenants It was also said that the Plaintiff was not within the clause of Restitution of the Act of 12 Car. because he was never seized by taking the Profits which cannot be until Induction according to Hare and Bicklers Case in the Commentaries quod suit concessum To which it was replied That neither was the Defendant within the clause of Confirmation because the Rectory in question was not a Benefice with cure for there is belonging to it a perpetual Vicaridge Endowed and the Vicar comes in by Admission Institution and Induction who performs Divine Service pays the Synodals and Procurations repairs the Chancel and therefore it hath been adjudged that such a Vicar shall have Arbores in Coemiterio And it was said that the Statute of 21 Hen. 8. against Pluralities doth not extend to Rectories where there are Vicaridges Endowed And Linwood describes a Benefice without cure cujus cura Vicariis perpetuo exercenda est Otherwise where the Vicar is Temporal and removeable And the difference is inter curam actualem habitualem And 't is the Cure that the Rector hath and so hath every Bishop in his Diocess who when he gives Institution saith accipe curam tuam et meam but the Act only extends to the first It appeared also on the other side That the Parson had come once or twice a year Preached and Administred Sacraments and that without the Vicars leave and also paid First-fruits Vpon all this matter the Opinion of the Court was That the Parson had a concurrent Cure with the Vicar and resembled it to the case where there are two Incumbents in one Church and coming in by Admission Institution and Induction the Vicar could not discharge him of the cure of Souls But Donatives which are conferred by Laymen are sinè cura Note The Plaintiffs Counsel would have denyed the Act of 12 Car. to be an Act of Parliament because the were not Summoned by the Kings Writ but the Iudges would not admit it to be questioned and said That all the Iudges resolved that the Act being made by King Lords and Commons they ought not now to pry into any defects of the Circumstance of calling them together neither would they suffer a point to be stirred wherein the Estates of so many were concerned Vid. Hob. 109. 33 H. 6. 19. Notwithstanding all this the Jury found for the Plaintiff It seemed by the Court in this case that Letters of Institution must be under the Episcopal Seal sed vide Cro. lib. 1. 249. Vid. postea The King against Burford HE was Indicted for that he scandalose contemptuose propalavit publicavit verba squentia viz. That none of the Justices of Peace do understand the Statutes for the Excise unless Mr. A. B. and he understands but little of them no nor many Parliament men do not understand them upon the reading of them And it was moved to quash the Idictment for that a man could not be Indicted for speaking◠of such words and of that Opinion was the Court But they said he might have been bound to his Good Behaviour Stones Case A Writ of Priviledge was prayed for Stone an Attorney of the Court who was Copyholder of a Mannor where the Custom was for the Homage to chuse one of the Tenants to collect the Lords Rents for the year following and they elected him But it was said that this might be taken to be parcel of his Tenure for the Lords use to seize the Land for not executing of it and his Priviledge ought not to deprive the Lord of the Service of his Tenant 1 Cro. 422. In the Book of H. 6. The Archbishop of York being bound by Tenure to Collect the Tenths pleaded the Kings Letters Patents in discharge thereof and they were disallowed and tho' Attorneys have had their priviledge where they have been pressed Souldiers as in Venables Case 1 Cro. 8. Co. Entries 436. Springs Case and 1 Cro. 283. and where by Custom it came to an Attorneys turn to be Constable vid. Rolls 2. part 276. yet these are publick Services to which every one is bound but Priviledges may be allowed to exempt particular persons as the King may grant to one that he shall not be of
against Bates a Schoolmaster who as it was alledged taught School without the Bishops Licence and it was granted because they endeavoured to turn him out whereas they could only Censure him he coming in by the Presentation of the Founder In a Feoffment of Tythes and Lands where there is no Livery if they do adjudge the Tythes to pass notwithstanding there is no Livery a Prohibition will lye In Debt upon a Lease at Will there must be an Averment that the Lessee occupied the Lands But it is otherwise upon a Lease for Years Anonymus THe Court was moved to grant an Attachment against a Justice of the Peace who upon Complaint refused to come and view a Force But the Court denied it and directed the party to bring an Action of Debt for the 100 l Forfeiture given by the Statute in that case It was said by the Court That in an Execution upon a Statute Merchant there is no need of a Liberate as there is upon a Statute Staple And in the Case of a Statute Staple the Conusee can bring no Ejectment before the Liberate neither can the Sheriff upon the Liberate turn the Terre-Tenant out of possession as he is to do upon an Habere facias possessionem Dier versus East AN Action was brought against the Defendant upon an Indeb ' pro diversis Mercimoniis venditis deliberatis to the Wife to the use of her Husband it being for her wearing Apparel And after Verdict for the Plaintiff it was moved in Arrest of Judgment that this Declaration being laid That the Sale was to the Wife tho' it was to the use of the Husband it was not good as if it had been sold to the Servant of the Plaintiff Nevertheless the Court were of Opinion That it being for her Apparel and that suitable to her Degree the Husband was to pay for it as had been Resolved in this King's time in Scot and Manby's Case in the Exchequer Chamber and that the Declaration was well enough Anonymus THe Defendant in an Action of Debt upon a Bond sued out an Injunction in Chancery where after the Case had depended for two years the Court was moved that the Plaintiff might accept of his Principal Interest and Charges The Court said If the Defendant comes before Plea pleaded and makes such a proffer they are ex debito Justitiae to allow it But now he having delayed the Plaintiff in Chancery two years it was in their discretion And the other three against the Opinion of Keeling thought fit to deny it Clarke versus Phillips al' UPon the Trial in an Ejectment the Title of the Plaintiff's Lessor appeared to be by a Remainder limited to him for Life upon divers other Estates and that there was a Fine levied and Proclamations passed but he within the Five years after his Title accrued sent two persons to deliver Declarations upon the Land as the course is upon Ejectments brought The Court Resolved that this was no Entry or Claim to avoid the Fine he having given no express Authority to that purpose and the Confession of Lease Entry and Ouster by the Defendant should not prejudice him in this respect In this Case Keeling and Twisden were of different Opinions in this Point Viz. If he that hath power of Revocation over Lands c. makes a Lease for Life whether it suspends the Power only as a Lease for years would do or extinguisheth it as a Feoffment The King versus Monk al' IN an Information for a Riot it was concluded contra formam Statuti 13 H. 4. which appoints Justice of the Peace upon complaint of Riots to View and Record them And after Verdict it was moved in Arrest of Judgment that this Information was not good it being grounded upon this Statute which only mentions Riots and appoints them to be punished in the manner there expressed But the Chief Justice Keeling was of Opinion that it being a Crime at the Common Law and mentioned in this Statute the Information was well concluded But the other Justices inclined to the contrary Anonymus DEbt upon a Bond Conditioned to perform Covenants in an Indenture The Defendant pleaded That there were no Covenants contained in the Indenture on his part to be performed The Plaintiff demands Oyer of the Indenture which is Entred verbatim and then Demurs which he could not well do before the Entry of it whereby it becomes part of the Bar so the cause of the Demurrer appears Then it was alledged by Saunders whose Hand was to the Plea That the Plaintiff could not have Judgment because he had set forth no Breach But the Court was much offended with him For they held the Plea in Bar meerly for delay and advised against the Statute of Westm 1. Robinson versus Pulford IN an Assumpsit the Plaintiff declared That the Defendant in Consideration that the Plaintiff would deliver such silver Threads and other Wares into the Shop of J. S. that he should require that he would see him paid Now after an Assumpsit pleaded and Verdict for the Plaintiff it was moved in Arrest of Judgment That the Plaintiff had not averred in his Declaration that J. S. had not paid for the Goods For the promise to see him paid was no more than if he had said If J.S. doth not pay you I will in which Case such Averment must have been But the Court Resolved that a Promise to pay and to see him paid was all one and the Averment unnecessary Rushden versus Collins IN an Assumpsit the Plaintiff declared the Consideration to be pro opere preantea facto After Verdict for the Plaintiff it was moved in Arrest of Judgment that opere was too general and might intend so inconsiderable a matter as would not amount to a Consideration for the Plaintiff But they gave Judgment for they said labore or servitio had been adjudged sufficient Lee versus Edwards IN an Assumpsit the Plaintiff declared That in Consideration that he would employ his skill and pains and provide Medicaments for and Cure a certain person of a Pthysick that he would pay what he deserved and lays another Promise at the same time in Consideration as aforesaid and alledges the Promise somewhat varying from the first and concludes with an Averment That he had bestowed his pains and cured accordingly Vpon Non Assumpsit pleaded and a Verdict for the Plaintiff the Court was moved to stay Judgment because the Plaintiff had made no Averment of the Cure upon the first Promise and entire Damages were given so it was ill in all But the Court were of Opinion That in regard he had Averred it upon the second Promise so as it appeared upon Record that the Cure was done it aided the omission of it in the first especially being after a Verdict Nota There is an Inquisition upon every ones death that dies in the Kings-Bench by the Master of the Crown-Office and Coroner Pomfret versus Rycroft IN a Writ of
Award After nullum fecere Arbitrium pleaded The Plaintiff replies and sets forth That they submitted to the Award of 4 so that they made it by the 16th of Nov. and signified it under the Hands and Seals of two of them and then alledges the Award under two of their Seals to which the Defendant demurred conceiving the Award to be void because the submission was to four But the Court gave Iudgment for the Plaintiff according to the Cases in 2 Cro. 276. and 400. Anonymus IN an Indictment for the using of a Trade contrary to the Statute of 5 Eliz. It was said That to keep a Shop within a Country Village was not within the Statute and it were very inconvenient that the Inhabitants must go to some great Town upon every occasion And it was also Juratores dicunt super Sacramentum suum and not adtunc ibidem jurati If a Statute appoints an Indictment to be taken at the Quarter Sessions the Caption must be Entred ad Quaterial ' Session ' c. for ad General ' Session ' pacis will not serve Jackson versus Gabree JAckson took out a Capias ad satisfaciend ' against Gabree and his Wife the Gaoler lets the Husband escape The Court was moved that the Wife might be discharged alledging that the Husband took no care of her but let her lie there in a very necessitous Condition They were doubtful what to do in it at the first motion but did afterwards resolve That unless the Plaintiff would get the Husband taken again as he might do they would discharge the Wife and they said the Escape of the Husband was the Escape of the Wife Anonymus AN Infant brought an Assumpsit by his Guardian and declared That whereas the Defendant entred into his Close and cut his Grass that in consideration that he would permit him to make it Hay and carry it away he promised to give him six pounds for it and he also declared for six pounds Debt more that he ought him Vpon this Declaration the Defendant demurred supposing it to be no Consideration for the Infant was not bound by his permission but might Sue him notwithstanding and then the promise to pay six pounds Debt was not good because not declared how indebted But the Court gave Iudgment for the Plaintiff Sir Henry Frederick Thynne versus Sir James Thynne PAsch 13 Car. 2. B.R. Rot. 448. Vpon a Special Issue directed out of Chancery the Case was thus One was seized in Tayl of the Mannor of B. and of two Closes which in reality were not part but reputed part thereof and suffered a Recovery only of the Mannor with the Appurtenances and whether the Recovery was a Bar as to the two Closes was the Question And in the 16 year of this King it was resolved by all the Court and Hide Chief Justice delivered the Opinion of the Court That the Lands reputed parcel of the Mannor should pass by reason of the Deed of Covenants to lead the uses which explained the intent Dier 223. 1 Cro. Sir George Symond's Case Hob. 177. Dier 376. Long 5 to E. 4. 303. 6 Co. Sir Moyle Fynch's Case Modern Rep. 250. Termino Sancti Hillarij Anno 21 22 Car. II. In Banco Regis Wilbraham versus Snow IN an Action of Trover the Plaintiff declares That he was Owner and possessed of certain Goods and sets them forth particularly and that they came to the Defendants Hands who converted them c. The Defendant pleaded Not guilty and the Jury find this Special Verdict That the Plaintiff was Sheriff and that he took the Goods into his Possession by force of a Fieri facias and that the Defendant who was also Defendant in the Execution took them away And then they demand the Iudgment of the Court if the Plaintiff could maintain this Action It was said that he might Because he was answerable over to the Plaintiff in the Execution at whose Suit he took them and could not return that they were taken away And if he returns that he hath taken Goods sufficient and after looses them he is bound to answer the value as returned A Bailée of Goods shall bring Trespass quare bona sua cepit And Rolls 5. a Carrier from whom Goods are taken may bring Trover But it was argued on the other side That the property is in the Defendant notwithstanding the seizure Dier 99. a. and Yelverton 44. And the Sheriff had but an Authority in Law to Sell as Commissioners of Bankrupt have of the Estate of the Bankrupt per 13 Eliz. 7. or Executors upon a Devise that they shall Sell Land c. but Trespass he might bring because of the Possession but Trover cannot be maintained without property But the Court held that the Action was maintainable And that the reason was the same as in the Case of the Carrier and also held that the Defendants Property ceased by the Seisure And also that if a Man becomes a Bankrupt after that the Commissioners have granted over his Goods he cannot meddle with them 1 Cro. 106. So by the Opinion of Keeling Rainsford and Moreton haesitante Twisden Iudgment was given for the Plaintiff Gavell and his Wife versus Burket AN Action was brought for these Words spoken of the Wife You are a Pimp and a Bawd and fetch young Gentlewomen to young Gentlemen and Declared of a Special Damage The Jury gave a Special Verdict and found the Words spoken but not the Damage as the Plaintiff had Declared Now whether the Words were Actionable of themselves was the Question And it was Agreed that no Action would lye for calling one Bawd or Pimp 1 Cro. 286 Dimock's Case Rolls 44. pl. 10. But to say one keeps a Bawdy-house it will lye 27 H. 8. 14. an Indictment lies for Keeping of a Bawdy-House because it is a Common Nusance but here the subsequent words expound in what sense the former words should be taken that is To bring Gentlewomen to Gentlemen for Bawdry which is as much as keeping a Bawdy-house and 1 Cro. was cited where Judgment was given for these words Thou keepest a House worse than a Bawdy-house and keepest a Whore in thy House And in 3 H. 7. it is said that Constables ought to apprehend Bawds But the Court inclined that the Action would not lye for a Bawd was not punishable in our Law unless for Keeping of a Bawdy-House it being a Crime of Ecclesiastical Conusans Sed Adjornatur Thomlinson versus Hunter TRespass Quare clausum fregit arbores succidit ad valentiam decem librarum 5 Co. Player's Case To which the Defendant Demurred generally The Plaintiff prayed Judgment for Breaking of his Close but as to the other the Declaration was Insufficient because not expressed what kind of Trees Anonymus A Writ of Error was brought upon a Judgment given in Ireland It was held that a Day ought to be given by Rule of Court to the Plaintiff to assign his Errors or else to
Perkins IN Debt upon a Bond entred into Eliz. Perkins who was the Plaintiffs Wife and he as her Administrator brings this Action The Defendant pleads That he delivered the Bond to one Eliz. Perkins his Sister quae obiit sola innupta absque hoe that he delivered it to Elizabeth Perkins the Plaintiffs Wife And to that the Plaintiff Demurres Specially For if it be taken that there are two of the name the Defendant should have pleaded non est factum for it amounts to no more Or at least he ought to have induced his Plea that there were two Elizabeth Perkins But this Traverse is designed to bring the Marriage in question which is not to be tried now Wherefore the Court gave Iudgment for the Plaintiff Twisden said If the Issue be Whether the Wife of such a Man or no This is to be tried per Pais For if she be a Wife de facto it serves upon the Issue But Loyalty of Matrimony is to be tried by the Certificate of the Bishop only 2 Cro. 102. Dightons Case A Mandamus was prayed to the Corporation of Stratford super Avon to restore Dighton the Town Clerk They returned their Letters Patents of Incorporation whereby they had Authority to Grant the Office of Town Clerk Durante bene placito and that he was amoved from his Office by the Mayor and Burgesses It was said that here appeared no Cause of amoval upon the Return which was manifestly needless having Authority to turn them out at their Pleasure But Twisden said It hath béen held that where any such like Power is to chuse one into a Iudicial Office as an Alderman whose place concerns Judicature that they cannot amove him without Cause But this was in a Misterial Office It was further moved That it did not appear that they had discharged him by any matter in Writing under Seal and it could not be by Parol Sed non allocatur for it is returned to be done by the Mayor and Burgesses and a Corporation cannot do any thing by Parol Post An Executor obtained Judgment in Debt in this Court and was afterwards upon an Information here convicted of Forging the Will It was also made void by Sentence in the Ecclesiastical Court Whereupon the Court was moved to vacate the Judgment which they ordered accordingly and the Cause of Vacuteing thereof to be entred upon the Record Vide Ante in Paris's Case King versus Atkins IN Debt upon a Bond the Condition recited That whereas the Plaintiff was bound with the Defendant being an Excise-Man that he should render a true Account in the Exchequer that the Defendant should save him harmless at all times c. The Defendant pleaded non fuit damnificatus The Plaintiff replied That a Scire facias issued out against him c. To which the Defendant demurred because he did not alledge that he gave notice This being spoken to divers times the Court thought notice not requisite in this Case no more than upon a Promise to pay so much at the others Marriage or return into England vid. Hob. 112 113. 1 Bulst 12 and 13. Where it is held upon a Promise notice is not necessary otherwise upon a Bond because of the penalty Ante Chester versus Wilson TRin. 21 Car. 2. Rot. 498. The Case was two Ioyn-tenants the one Grants Bargains and Sells all his Estate and Interest to the other It was held clearly by all the Court That this amounted to a Release but it must be pleaded quod relaxavit for one Ioyn-tenant cannot grant to another Wilson versus Armorer IN Debt against the Heir upon the Bond of his Ancestor who pleaded riens per discent the Jury find a Special Verdict to this effect That the Father was seised of a Mannor in Fee and made a Feoffment of it excepting two Closes for the life of the Feoffor only and refered it to the Iudgment of the Court whether these Closes descended to the Defendant or not So that the Question was Whether the Closes were well excepted or passed by the Feoffment And it was argued by Levins for the Plaintiff That by these words the two Closes were Totally excepted and that the Law should reject the latter words because they cannot take effect according to the Parties intention to reserve to the Feoffor a particular Estate If one surrendred a Copyhold to the use of J. S. and his Heirs which Estate to begin after his death adjudged in 2 Rolls 261. a present Fee simple passed 3 Cro. 344. A Man said to his Son being upon his Land Stand forth Eustace my Son reserving and Estate for mine and my Wifes Life I do give you this Land to you and your Heirs Resolved there that this is a good Feofment Moor 950. Popham 49. A Man possessed of a Term in an House in the right of his Wife granted it excepting the Cellar pro usu suo proprio and held that by these words it was altogether excepted out of the grant 1 Anderson 129. Serjeant Turner è contra For that it is but one Sentence and cited 38 H. 6. 38. An Addowson was granted saving the Presentation to the Grantor during his life and held void and Pl. Com. 156. where it is said if a Termour granted his Term after his Death it is void But if in two Sentences as to grant his Term Habendum after his Death there the Habendum is only void Er Adjurnatur Postea Love versus Wyndham AN Action upon the Case upon an Issue directed out of Chancery upon a Special Verdict the Case was George Searl being seised of the Mannor of N. Demised the same to Nich. Love for 99 years if 3 Lives should so long live N. Love devised it to Dulcibell his Wife the remainder to Nich. his Son for life and if he the said N. the Son should dye without Issue then to Barnaby Love the Plaintiff The Executor assented and whether the Devise to Barnaby were good was the Question Jones for the Plaintiff this is a good possibility I shall make two points First If a Termor Devise first to one and then to another whether he may Devise it over Secondly Whether the Limitation here after the Death without Issue be a good Limitation over First He may make a third Limitation which is a Possibility upon a Possibility at least he may make 2 or 3 such Limitations over I can't certainly say where it will end It can't be denied but that a Termour may Devise first to one for life and after to another 8 Co. 95. But I say he may go further and that will appear by Reason and Authority First By Reason The Reason given why the Executory Devise in the first case is good is because 't is in Construction of Law as much as if he had Devised it to the last first if the first Man should dye within the Term and then had Devised that the first should hold during life and without such a transposition it cannot
be good Now this being the way of Operation there is no reason why he may not Devise it to one after the death of two as well as after the death of one This would be so in Grants were it not that a certainty is required in them 1 Cro. 155. which is not required in Devises Termino Sanctae Trinitatis Anno 22 Car. II. In Banco Regis Freeman versus Barnes EError to Reverse a Judgment in an Ejectione firmae in the Common Pleas the Case upon a Special Verdict was thus The Marquess of Winchester being seised in Fee of the Lands in Question the 8 of July 9 Jac. Lets them to Sir An. Maynee for 100 years in Trust for the Marquess and his Heirs and to wait upon the Inheritance The Lessee enters afterwards the Marquess enters and Lets it to the Lord Darcy for 7 years and then Le ts to the Spanish Embassador for 7 years which Leases being expired Sir A.M. Demises to Freeman for a Term yet unexpired this Demise is not found to be upon the Land Afterwards the Lord Marquess Demises to Germin for 54 years upon Consideration of Money and Reserves a Rent and Covenants to Levy a Fine for the assurance of the Term which was afterwards done with Proclamation Germin enters and five years passed without any Claim made which Lease by mean Assignment came to Wicherly the Lessor of the Defendant who was Plaintiff in the Common Pleas and there had Iudgment The only Question upon this Special Verdict was Whether the Fine and Non Claim should barr the interest of Sir A. M. the Lessee in Trust This Case having béen argued thrée several times at the Bar The Court did this Term deliver their Opinons and did all agrée that the Iudgment ought to be affirmed It was considered quid operatur by the entry of the Marquess and they all except Moreton held that Prima facie he was Tenant at Will as Littleton Sect. 463. is where the Feoffor enters upon the Feoffée to his use but that the Entry of Germin his Lessée did ouft Freeman the Assignee of Sir A.M. which Assignment though not found to be upon the Land 2 Cro. 660. was good as the Chief Justice held because the two former Leases made by the Marquess were expired so he became Tenant at Will again but them he making of another Lease and the Lessee entring this must work an ouster and so the Fine would bar the Right For they agreed that a Fine regularly shall not work upon an Interest which is not divested though in some Cases it doth as upon the Interest of a Term according to Safins Case 5 Co. which yet cannot be divested but though the first Entry make but a Tenancy at Will yet taking upon him to make Leases that is enough to declare his intent to dispossess his Lessee in Trust Besides he reserves a Rent and Covenants for quiet Enjoyment and to make further assurance which could not stand with the Interest of the Lessee in Trust And for the Cases that were objected as Blunden and Baughs 1 Cro. 220. Where it is adjudged That the Entry of the Lessée for years of Tenant at Will should be no disseisin nolens volens to him that had the Freehold for there was no intention of the Parties to make it so and here the Law shall rather give the Election to him which had the Inheritance to make it a devësting than the Lessee or rather as the Chief Justice said the Law construes such Acts to amount to a divesting or not divesting as is most agreeable to the intention of the Parties and the right of the thing which distinguishes it also from the Case of Powsley and Blackman cited in Blunden and Baughs Case where the Mortgageor held at the Will of the Motrgageē and let for years the Lessee entred and held notwithstanding that the Mortgagee might Devest So Sir Tho. Fishes Case in Latches Rep. Where Tenant for years Le ts at Will and the Lessée makes a Lease for years and then the remainder is granted over This Grant is held to be good which whether by the remainder there be understood the interest of the Lessee or the Fee-simple yet it is no more than my Lord Nottinghams Case and not like the Case in Question For there the Lessee held the interest in his own Right and here but in Trust and for the Case in Noyes Reports 23. Twisden said he wholly rejected that Authority for it was but an Abridgment of Cases by Serjeant Size who when he was a Student borrowed Noyes Reports and abridged them for his own use The Case was this Tenant in Fée makes a Lease for years then Levies a Fine before Entry of the Lessee It is held there though five years pass the Lessée is not barred which is directly against the Resolution of Saffins Case and for Authority in this Case they relied upon the Case of Isham and Morris in 1 Cro. 781. Where upon Evidence it was resolved by the Justices That if the cesty quo Trust of a Lease for years Purchaseth the Inheritance and Occupies the Land and Levies a Fine that this after five years shall bar the Term which is not so strong as this Case because there were no Leases made and Entry thereupon and the Trust must pass inclusively by the Fine as is resolved in divers Books especially in this Case where it is to wait upon the Inheritance which though it arises but out of a Term yet it shall follow the Land and go to the Heir And for the inconveniences which were objected That if any Man purchased Land by Fine that he could not keep on Foot Mortgages and Leases which it is often convenient to do The Chief Justice declared his Opinion That in that Case the Fine should not bar there not being any intention of the Parties to that purpose And as to the other that where the Mortgageor continuing in Possession Levies a Fine this should bar the Mortgagee he denied that also and grounded himself upon Fermours Case in 3 Cro. And Twisden agreed Dighton's Case HE brought a Mandamus to be restored to his place of Town Clerk of Stratford super Avon The Corporation returned Letters Patents whereby they were empowered to chuse one into the Office of Town Clerk Durante bene placito and that they removed him from his Office Jones prayed that he might be restored notwithstanding because no Cause of his removal was returned nor that they had ever Summoned him whereas if they had he might peradventure have shewed such Reasons as would have moved them to have continued him and he cited Warrens Case 2 Cro. 540. who was restored to his Aldermanship where the Return was as here But the Court held that they could not in this Case although they confessed they knew the Merits of the Person help him And the Chief Justice said The Case of the Alderman differed for he is a part of the Corporation which
is where it is imposed for such things as are of common Right incident to its Jurisdiction as for Contempts or the like Yet where Custom only enables them to set a Fine it cannot be Distrained for without Custom also 11 Co. Godfrey's Case And to this Opinion did the Court incline Sed Adjornatur Anonymus TWo Actions of Account were removed into this Court by Habeas Corpus and Special Bail put in And it was moved that the Bail might be discharged and Common Bail filed because in an Account Special Bail is not to be put in But it was said the Plaintiff had declared in one in an Action upon the Case and so prayed that the Bail might stand quoad that But it was Ruled That the Bail should be discharged and if the Plaintiff would have Special Bail he must Arrest the Defendant again in an Action upon the Case Doctor Lee's Case DOctor Lee having Lands within the Level was made an Expenditor by the Commissioners of Sewers whereupon he prayed his Writ of Priviledge in this Court and it was granted For the Register is Vir militans Deo non implicetur saecularibus negotiis and the ancient Law is Quod Clerici non ponantur in Officia F.N.B. Clergy-men are not to serve in the Wars Jemey versus Norris ERror to Reverse a Judgment in an Assumpsit upon a Quantum meruit for divers things sold It was assigned for Error that the Declaration amongst the rest was for unum par Chirothecarum and did not express what sort of Gloves they were which are of much different prices according to the different Leather they are made of And Playter's Case 5 Co. was cited where Trespass for taking of his Fishes was held not good because not ascertainedb of what kind Sed non allocatur Another of the things declared for was una parcella fili which as it was said was utterly uncertain and that was held to be naught Tho' it was said an Action was brought for taking away unum cumulum Foeni Anglicè a Rick of Hay and not alledged how much it contained yet held good But in Webb and Washburn's Case an Action was brought for a pair of Hangings and it was Adjudged against the Plaintiff for the Incertainty Jones contra and cited a Case in this Court 24 Car. 1. Green and Green in Trover for six parcels of Lead and notwithstanding the Incertainty the Plaintiff had Judgment So in Trover for a Trunk de diversis Vestimentis and did not say what Garments and yet held good But admitting it should not be good in Trover yet it is well in this Action 'T is the Common course to declare sur Indebitatus pro mercimoniis and never express what they are And the Court were of Opinion that the Plaintiff was to have Judgment for it is an Action much of the same nature with an Indebitatus And Twisden said Where the Promise is to pay Quantum meruit he knew not why the Plaintiff might not declare upon an Indebitatus in a certain Sum and that he might prove the value upon the Evidence and if such a Case came to be tried before him he would have a Special Verdict found in it The Court said Such an uncertain Declaration would hardly be good in Trover or Replevin and held the Case of the six Parcels to be strange and for the Trunk that an Action lies for that the things contained in it were alledged but as matter of aggravation of Damages Vid. the Case of Taylour and Wells ante Trover de decem paribus velorum tegularum Anglicè Ten pair of Curtains and Vallance Wilson versus Armorer IN Debt against the Heir and Reins per discent pleaded the Case upon Special Verdict was thus The Ancestor made a Feoffment of a Mannor to divers uses excepting two Closes for the Life of the Feoffor only and whether those two Closes did discend was the Point referred to the Iudgment of the Court. And it was Adjudged That they did discend either for that the Exception was good tho' the latter part of the Sentence viz. for the Life of the Feoffor only was void and therefore to be rejected or if the whole Exception were void because one intire Sentence Yet they all agreed that there was no Vse limited of those two Closes which were intended to be excepted for the Vse was limited of the Mannor exceptis praeexceptis which excluded the two Acres For altho' there were not sufficient words to except them yet there was enough to declare the intention of the Feoffor to be so Anonymus AN Indictment for Erecting of a Cottage for Habitation contra Statut ' 31 Eliz. cap. 7. was quashed because it was not said that any had inhabited in it for 't is no Offence before per Rainsford Moreton caeteris absentibus Termino Sancti Hillarij Anno 22 23 Car. II. In Banco Regis Robson's Case A Prohibition was prayed to a Suit for Tythes by the Parson upon a Suggestion of a Modus paid to the Vicar and that the Vicaridge had time out of mind been Endowed Coleman moved for a Consultation because the Endowment of the Vicaridge was not proved by two Witnesses within six Months according to the Statute But it was denyed for that part of the Suggestion is not to be proved by Witnesses but only the payment of the Modus And it was said If the Suggestion consisted of two parts it was sufficient to produce one Witness to the one and another to the other Dacon's Case DAcon was presented in the Court Leet for refusing the Office of Constable and Fined It was moved to quash it because it expressed the Court to be held infra unum mensem Sancti Michael ' viz. 12 November and so the Day shewn above a Month after Michaelmas And it is necessary to set down the precise Day for it may else be upon a Sunday and yet within a Month after Michaelmas and for this cause the Court held that it must be quashed Error AN Outlawry was Reversed for that the Proclamations were Returned to be ad comitat ' meum tent ' apud such a place in Com' praedict ' and not said pro Comitatu For anciently one Sheriff had two or three Counties and might hold the Court in one County for another Calthorpe versus .... IN Debt for Rent the Plaintiff declared that he let the Defendant such Land anno 16 of the King quamdiu ambabus partibus placeret and that anno 16 the Defendant entred and occupied it pro uno anno tunc proximê sequent ' and because the Rent was behind pro praedict ' anno finit ' 18 he brought the Action Vpon which it was Demurred Because the Rent is demanded for the Year ending 18 and it is not shewn that the Defendant enjoyed the Land longer than anno 17. And in Debt for Rent upon a Lease at Will Occupation of the Tenant must be averred To which it was Answered That it is said
upon that Attainder was penned as amply as this of 12 Car. and the Case of Warner and Harding Latch 25. is very like this W. Shelley enfeoffed divers to the use of himself for Life and afterwards to divers others upon Condition that if a Ring were delivered by the said William Shelley declaring that he intended those uses should be void that then c. it was resolved that nothing was forfeited but during his Life Rainsford I shall speak nothing to the Fraud because that is a pure matter of Fact which is to be found by the Jury and cannot in any Case be presumed by the Court. I am of Opinion that the Judgment ought to be affirmed The power of altering the Trusts reserved by the first Proviso is inseparable from the person of Simon Maine for it is to be by his Will in Moor 193. the Lord Pagetts Case It is resolved that inseparable Powers are not forfeited upon like words as are in this Act and so the second Proviso limits to him a double Power First Of revoking the old Trusts Secondly Of limiting new But this is to be done by Writing under his Hand and Seal in the presence of two Witnesses so the performance of this also is personal The D. of Norfolks Case is the very same unless for that it is there under his proper Hand and Seal and here under his Hand and Seal which certainly is all one But admitting this Power were forfeited yet it is not found that ever it was executed after it come to the King which must be before any Estate could come to the King therefore in Englefields Case it was found that a Ring was tendred in the behalf of the Queen And whereas it was objected That he had jus disponendi and therefore might Forfeit as a Man shall a Term which he hath in right of his Wife as Dame Hale's Case in Plowden is resolved I answer That here he hath not jus disponendi but rather potestatem disponendi but that is qualified and to be executed by certain Circumstances which must be performed to give it effect Twisden As to the Fraud I cannot see how the Jury could have found this fraudulent Settlement made to prevent a Forfeiture enacted by Parliament 20 years after which surely could not be without the Spirit of Prophecy I am of the same Opinion as to the matter with my two Brothers That Simon Maine had only a Trust in him during his own Life and if he had brought a Bill in Equity he could have had the Estate executed no further and therefore can Forfeit no more by this Act and it is not always that a Man that hath power over Land hath a Trust as we may sée in Cranmers Case Dier 308 309. there were as large words in the Act of his Attainder as here Indeed the Argument in Englefields Case 7 Co. rules this for if a Trust had béen implied in the power of Revocation they néeded to have argued that it should have been forfeited as a Condition so the D. of Norfolks Case for tho' the word Use is in that Act and not Trust as in this yet it makes no difference for an Use was then the same with what a Trust is now and tho' the word Power had béen in this Act yet there should have béen no Forfeiture in this case because the Execution of it is so personal and individual Neither is there found that ever there was any Execution and at most the Forfeiture could only be of what was in Simon Maine neither can Smith Execute it by virtue of his Grant from the King for the Kings Patent conveys nothing by implication and shall never work to a double intent Hale Chief Justice of the same Opinion First Crooke is a good Lessor for the other Trustees disagréement makes the Estate wholly his Secondly For the Circumstances of Fraud they are not material to be considered Thirdly The Trust is wholly disposed of after the Death of Simon Main so that he had nothing but during his Life Fourthly Then what is operated by the Attainder Why the Trust during Life is forfeited Vid. the E. of Somerset's Case Hob. 214. 2 Cro. 512. But then this Trust must have béen executed by the Court of Revenue 'T is true the Act doth not only give the Trust but the Term it self to the King that is during the Life of Simon Maine so that by this Act so much of the Term is drawn out of the Trustees as served the Trust which S. M. had but leaves the residue of the Term to serve the other Trusts so that the possibility of the Term returns to the Trustees after the Death of S. M. and this appears by the body of the Act. Also this appears by the saving in the Act. The first saving which saves all the Conveyances made by the Feoffor before the 29 of Sept. 1659. indeed might not help because Conveyances made to the Wives Children or Heirs are therein excepted But there the other Proviso saves the Right Interest c. of all persons whatsoever doth in Law and Equity not derived form the offenders since 25 Mar. 1646. and therein the Interest of Wife or Children and all are saved now this Estate was created before viz. 1643. I come now to the Provisoes The first Proviso determins nothing till the time of Simon Maine's Death and consequently this can revest no more to M. than he had before For the Condition is in expectation till he have a Son living at the time of his Death why then by this there comes nothing to S.M. so much as in point of Execution during his Life By his Will he might have limitted new Uses but he made none and 't is personal No other Man can make his Will Why then all stands as it did and nothing is made void till the time of his Death and then all is immediately executed to the Son by force of the first Conveyance But if the Proviso had béen That if S.M. had a Son there all had revested in S. M. and might have béen forfeited The last Proviso doth not create a Trust to him for if he had not béen Attainted the Trust should not have gon to his Executors c. No it creates a personal power of fetching back the former and declaring new Trusts observing the circumstances upon the same reason that this Estate can be forfeited a bare Executor I mean without a Devise of the residue might forfeit his Estate this is a Power yea and 't is a manacled Power it is a kind of Trust that he may revoke The D. of Norfolks Case is the same with this So Harding and Warners Case which was adjudged in C. Banco tho' there there were two to two and it was confessed by the Kings Attorney in Scaccario and the Kings Attorney doth not use to confess Judgment in Cases of great moment without consultation with the Judges This power was not nor could be passed to the
not to be removed out of Corporation Courts where they are held before an Utter Barrister so that 't is far better for the Corporation to have such an one their Recorder Twisden said The case of Bernardiston differed besides that he apprehended he had much of the favour of the times in it for he that was tried before him for having two Wives was arraigned before him not as Recorder of Colchester but as a Commissioner of the Gaol delivery neither was it returned That he was Summoned which was said not to be material because they could not have examined the matter It was returned also That he absented himself for nine Months but not set forth that any Court was held during that time or any occasion for it He said That Cholmley Recorder of Lincoln was turned out of his place for trying the Accessory before the Principal and altho' there be no Special Fact returned here yet it may be tried in an Action upon the Case The Court said They would look upon Bernardistons Case Et Adjornatur Anonymus A Prohibition shall not go to the Admiralty to stay a Suit there for Mariners Wages tho' the Contract were upon the Land For First It is more convenient for them to sue there because they may all joyn Again according to their Law if the Ship perish by the Mariners default they are to lose their Wages therefore in this special Case the Suit shall be suffred to proceed there Dier versus East WHere by the Statute of Ed. 6. It is ordained That striking in the Church-yard shall be Excommunication Ipso facto this tho' it takes away the necessity of any Sentence of Excommunication yet he that Strikes doth not stand Excommunicated until he be thereof convicted at Law and this transmitted to the Ordinary Theodore Morris's Case HE was indicted of Murther in Denbigh and obtained a Certiorari to remove it into this Court in order to have it tryed in an adjacent English County And it was moved whether by Law it might be The Statute of 26 H. 8. cap. 6. empowers the next English County to take Indictments of Treasons and Felonies committed in Wales and to try them but here the Indictment was taken in a Welsh County Herbets Case in Latch was cited who was indicted at Montgomery and tryed at Salop and Plowden Matters del corone avenants a Salop and Southley and Prices Case 3 Cro. is That the Statute doth not extend to a Tryal upon an Appeal In Chedleys Case a Certiorari was granted as here to remove an Indictment found in Anglesy which was afterwards tryed in the next English County 3 Cro. 331. And the Court held that so it might be here Large versus Cheshire HIll 22. and 23 Car. 2. Rot. 520. In Covenant the Plaintiff declared upon Articles of Agreement between him and the Defendant whereby the Defendant covenanted to pay him such a Sum the Plaintiff making to him a sufficient Estate in such Lands before the Feast of St. Thomas next ensuing the date of the Deed and then he saith that licet he the Plaintiff semper a tempore confectionis scripti paratus suit ad performand ' all the Agreements of his part usque ad diem Exhibitionis bille the Defendant had not paid the Money The Defendant pleaded quod ipse obtulit solvere the Money aforesaid apud Derby si le Plaintiff faceret ei bonum sufficient ' Statum de in Premissis c. The Plaintiff replied Protestando That the Defendant did not offer the Money pro placito that he the 21 of Decemb. apud Derby fecit sigillavit quandam Chartam Feoffamenti whereby he conveyed the Premisses to the Defendant and that he came to the Premisses an hour before Sun-set the same day paratus ad deliberand ' seisinam c. quod Desendens nec aliquis ex parte illius venit ad recipiend ' c. to which the Defendant demurred and adjudged for him It was held That these words ipso faciente bonum statum were a Condition precedent to the payment of the Money therefore the Plaintiff in his Declaration should have averred the performance of it particularly and not by such general words that he had done all on his part And it differs from the Case where in Assumpsit the Plaintiff declared That the Defendant in Consideration the Plaintiff should permit him to enjoy such Land for seven years that he would pay him pro quolibet anno 20 s and the Action was held well brought within the seven years for that it was Executory contract for every of the years according to the intention of the Parties It was resolved also That the Replication was insufficient for that the Plaintiff having Election to make what Conveyance he pleaded he ought to have given notice to the Defendant that he would execute this Charter of Feoffment by Livery for it might have béen by Enrollment But Hale said The time when in this Case was not necessary to be in the notice because the Charter was sealed and delivered upon the extream day limited by the Agreement so the Defendant knew it must be upon that day so for the place because it is a local thing and must be done upon the Land But because he had set forth no notice given to the Defendant that he would make Livery the Replication is insufficient as if a Man be bound to Levy a Fine he must shew whether he will do it in Court or by Dedimus and the Court said if the Defendant had refused to accept of Livery the Plaintiff might as well have brought the Action as if he had actually made it Sacheverel versus Frogate IN Covenant the Plaintiff declares That Jacinth Sacheverel was seized in Fee and demised to the Defendant certain Lands for 21 years rendring to him his Executors Administrators and Assigns 120 l Annually during the Term By force of which Lease the Defendant entred and that J. S. Devised the Reversion to the Plaintiff and died and for Non-payment of Rent accrued since his Death he brought the Action and to this Declaration the Defendant demurred And it was argued by Winnington That the Rent determined by the Death of the Lessor as where the Lessor reserves the Rent only to himself 1 E. 4. 18. 27 H. 8. 19. Dier 45. Com. 171. the Heir shall not have it for reservations are taken strongliest against the Lessor so where the reservation is to the Lessor his Executors and Assigns it continues but for his Life Co. Lit. 47. a. 'T is true Here is also added Durante Termino and in Mallories Case 5 Co. where the reservation was to the Abbot or his Successors during the Term it went to the Successor but that was because they expounded or as a Conjunctive for if Successor had béen left out I suppose it would have been resolved otherwise Richmond and Butchers Case 1 Cro. 217. is in point that the Heir shall not have it So 2 Rolls 451.
here to forbear to Sue generally but to stay a Suit against the Defendant whom he could not Sue To which it was answered That after a Verdict it shall be intended there was cause of Suit as Hob. 216. Bidwell and Cattons Case And Attorney brought an Assumpsit upon a Promise made to him in Consideration that he would stay the Prosecution of an Attachment of Priviledge and there held that it need not appear that there was cause of Suit for the Promise argues it and it will be presumed And here 't is a strong intendment that the Bond was made in Common Form which binds the Heirs But Iudgment was given against the Plaintiff for the Court said it might be intended that there was cause of Action if the contrary did not appear which it doth in this Case for the Bond cannot be intended otherwise than the Plaintiff himself hath expressed it which shews only that the Ancestor was bound And whereas it was said by the Plaintiff's Counsel that this would attaint the Jury they finding Assumpsit upon a void Promise Hale said there was no colour for that conceit The Plaintiff having proved his Promise and Consideration as 't was laid in the Declaration which is the only thing within their charge upon Non Assumpsit modo forma Bulmer versus Charles Pawlet Lord Saint John IN an Ejectment upon a Tryal at Bar this question arose upon the Evidence Tenant for Life Remainder in Tail to J. S. joyn in a Fine J.S. dies without Issue whether the Conusee should hold the Land for the Life of the Tenant for Life Serjeant Ellis pressed to have it found Specialy tho' it is resolved in Bredons Case that the Estate of the Conusee shall have Continuance but he said it was a strange Estate that should be both a Determinable Fee and an Estate pur auter vie and he cited 3 Cro. 285. Major and Talbots Case where in Covenant the Plaintiff sets forth that a Feme Tenant for Life Remainder in Fee to her Husband made a Lease to the Defendant for years wherein the Defendant covenanted with the Lessors their Heirs and Assigns to repair and they conveyed the Reversion to the Plaintiff and for default of Reparations the Plaintiff brought his Action as Assignee to the Husband And resolved to be well brought because the Wives Estate passed as drowned in the Fee The Court said Bredons Case was full in the point but the Reason there given Hale said made against the Resolution for 't is said that the Remainder in Tail passes first which if it does the Freehold must go by way of Surrender and so down but they shall rather be construed to pass insimul uno flatu Hob. 277 In Englishes Case it was resolved it Tenant for Life Remainder in Tail to an Infant joyn in a Fine if the Infant after Reverse the Fine yet the Conusee shall hold it for the Life of the Conusor 1 Co. in Bredons Case and he resembled it to the Case in 1 Inst a Man seized in the right of his Wife and entituled to be Tenant by the curtesie joyns in a Feoffment with his Wife the Heir of his Wife shall not avoid this during the Husbands Life Nevertheless he told Ellis That he would never deny a Special Verdict at the request of a Learned Man but it appearing that he Plaintiff had a good Title after the Life should fall the Defendant bought it of him and the Jury were discharged Sacheverel versus Frogate PAs 23 Car. 2. Rot. 590. In Covenant the Plaintiff declared That Jacinth Sacheverel seized in Fee demised to the Defendant certain Land for years reserving 120 l Rent And therein was a Covenant that the Defendant should yearly and every year during the said Term pay unto the Lessor his Executors Administrators and Assigns the said Rent and sets forth how that the Lessor devised the Reversion to the Plaintiff an for 120 l Rent since his decease he brought the Action The Defendant demanded Oyer of the Indenture wherein the Reservation of the Rent was yearly during the Term to the Lessor his Executors Administrators and Assigns and after a Covenant prout the Plaintiff declared and to this the Defendant demurred It was twice argued at the Bar and was now set down for the Resolution of the Court which Hale delivered with the Reasons He said they were all of Opinion for the Plaintiff For what interest a Man hath he hath it in a double capacity either as a Chattel and so transmissible to the Executors and Administrators or as an Inheritance and so in capacity of transmitting it to his Heir Then if Tenant in Fee makes a Lease and reserves the Rent to him and his Executors the Rent cannot go to them for there is no Testamentary Estate On the other side if Lessee for a 100 years should make a Lease for 40 years reserving Rent to him and his Heirs that would be void to the Heir Now a Reservation is but a Return of somewhat back in Retribution of what passes and therefore must be carried over to the Party which should have succeeded in the Estate if no Lease had béen made and that has béen always held where the Reservation is general So tho' it doth not properly create a Fee yet 't is a descendible Estate because it comes in lieu of what would have descended therefore Constructions of Reservations have been ever according to the Reason and Equity of the thing If two Joynt-teants make a Lease and reserve the Rent to one of them this is a good to both unless the Lease be by Indenture because of the Estoppel which is not in our Case for the Executors are Strangers to the Deed. 'T is true if A. and B. joyn in a Lease of Land wherein A. hath nothing reserving the Rent to A. by Indenture this is good by Estoppel to A. But in the Earl of Clare's Case it was resolved That where he and his Wife made a Lease reserving a Rent to himself and his Wife and his Heirs that he might bring Debt for the Rent and declare as of a Lease made by himself alone and the Reservation to himself for being in the Case of a Feme Covert there could be no Estoppel altho' she signed and sealed the Lease There was an Indenture of Demise from two Joynt tenants reserving 20 l Rent to them both one only sealed and delivered the Deed and he brought Debt for the Rent and declared of a Demise of the Moiety and a Reservation of 10 l Rent to him And resolved that he might Between Bond and Cartwright which see before and in the Common Pleas Pas 40. Eliz. Tenant in Tail made a Lease reserving a Rent to him and his Heirs It was resolved a good Lease to bind the Entail for the Rent shall go to the Heir in Tail along with the Reversion tho' the Reservation were to the Heirs generally For the Law uses all industry imaginable to conform
it may be for half a year upon the same reason it may be for ever An interest of this nature might have commenced by grant 18 E. 3. the Lord granted to the Tenant that he would not improve tho' it may be such a Grant were not good at this day The Court were agreed in this point in the Case between Porter and North brought here about three years since the principal doubt in that Case was whether the Freeholders and Copyholders could in pleading alledge a Joint Prescription for the Sole Pasture and for the mischief alledged that this might be obtained from every Lord that had not of a great many years used his Common Hale said It would not be sufficient to prove an Vsage for the sole Pasture to shew that the Tenants had only fed it unless it were proved also that the Lord had been opposed in putting in his Cattle and the Cattle Impounded from time to time To the Second Objection They held that Levancy was not material in this case because the sole Feeding is claimed So where Common for a certain number of Beasts is claimed 't is possible between the Tenants there may be some proportioning of it that one may not eat up all from the rest but 't is not material to the Owner of the Soyl. And Twisden said it was Resolved in this Court between Stonell and Masselden that want of averment of Levancy and Couchancy was aided by a Verdict Thirdly Tho' the Licence is not shewn to be by Deed they Resolved it was well enough 'T is true if the Licence were to make Title against the party which gave it there would be greater question For 't is nothing to the Plaintiff who it appears had not Damage at the most it is but a Mispleading aided by 32 H. 8. And the Plaintiff waved this matter and took Issue upon the Custom which is the material Point Vid. 2 Cro. 377. and it is found against him There might have been more colour upon a Demurrer Ante. Anonymus A Prohibition was granted to a Suit for Fees in the Ecclesiastical Court by an Apparitor upon a Suggestion that there were no such Fees due by Custom For that it tryable at Law and not by a Decinaria or Vicenaria praescriptio which is allowed in their Courts But they may Sue there for their due and customary Fees Brell versus Richards ERror upon a Judgment in the Common Pleas in an Ejectment against Eight Defendants and the Writ was Ad grave dampnum ipsorum the Judgment was only against Three and the other Five were acquitted The Error was assigned in the Nonage of the Three It was moved Whether the Writ of Error was well brought or whether the Judgment should reversed in toto The Court Resolved that the Writ was good Hob. 70. Yelv. 209. tho' it might be also ad damnum only of those Convicted But being only in the nature of a Commission whereby the King commands the Errors to be examined this matter is not material And Twisden said that the constant Practice is for all to joyn And they all held That the Judgment ought to be Reversed against all Sir Anthony Bateman's Case UPon a Trial at Bar the Question was Whether he were a Bankrupt or no It was proved that he was a Turky Merchant and Traded in the Year 1656 but it was not proved that he had afterwards Imported or Exported any thing but having the Effects of his former Trade by him to a great Value he shewed them to several and obtained the Loan of divers Sums of Money upon the Credit of them The Court held that this brought him within the Statute for such Debts as he Contracted after 1656 otherwise the Mischief would be great for Men cannot take notice when another withdraws his Trade or when he Commands his Factors beyond Sea to Deal no further for him but they seeing great quantities of Goods and Merchandize in his hands are apt to Trust him Wherefore 't is fit that they should be Relieved by the Statute Anonymus AN Administrator brought a Writ of Error upon a Judgment given in an Ejectment against the Intestate It was held that he should pay no Costs tho' the Judgment were affirmed and the Writ brought in dilatione Executionis The Bishop of Exeter versus Starr IN Debt upon a Bond the Condition recited That whereas the Obligor was Excommunicated for not coming to Church and that the now Plaintiff at his Instance and Request had absolved him That if he should obey all the lawful Commands of the Church that then c. The Defendant Demurred supposing the Condition to be against Law and so the Bond void Hale said If a man were Excommunicated there was a Writ De cautione admittenda and sometimes they took an Oath of the party Ad parendum omnibus Ecclesiae mandatis licitis honestis and that was called Cautio juratoris and sometimes Cautio pignoratitia was given 1 Bulstr 122. He said also It was held 8 Car. in Com. Banco that where the Ecclesiastical Court took a Bond of an Administrator to make distribution of what remained of the Intestates Estate after Debts and Legacies satisfied or to dispose so much to Pious uses that the Bond was void for they presumed the party in such cases to be under a kind of Coertion Et Adjornatur Isaac versus Ledgingham IN a Replevin the Defendant avowed for Suit of Court The Plaintiff Replies and confesseth himself Tenant of the Mannor and saith That there are very many Tenants of the Mannor and that there is a Custom That if those Copy-holders which live remote from the Mannor pay Eight pence to the Steward of the Court for the Lord and 1 d to himself for the Entring of it that they should be excused of doing their Suit for One year after the said payment and alledgeth That he lives 10 Miles from the Mannor and that he tendred the 8 d and 1 d and both were refused To this the Avowant Demurred First The Custom is unreasonable for by means of it no Court can be kept if so be all the Tenants live remote Secondly The Plaintiff hath not brought himself within the Custom for that is to be discharged upon payment and not upon tender and refusal And the Construction of Customs is always strict to the Words and not with that latitude as is used in Contracts Hale 'T is Custom gives the Suit and consequently may qualifie it The Doubt arises because the Plaintiff hath not alledged that there are any Tenants live near or within the Mannor or whether that ought to be shewn on the other side if it be not so because the Intendment is strong that there are Therefore a By-Law in a Mannor binds the Tenants without notice because they are supposed to be within the Mannor For the other matter they all held that Tender and Refusal was as much as Payment And Twisden said It was Resolved 8 Co.
of Kin was upon the Presumption That the Intestate intended to prefer him But now the Presumption is here taken away the Residuum being disposed of to another and to what purpose should the next of Kin have it when no benefit can accrue to him by it and 't is reasonable that he should have the management of the Estate who is to have what remains of it after the Debts and Legacies paid And the Averment That there is no Residuum is not material for being once out of the Statute upon Construction of the Words of the Will there is nothing ex post facto can bring it within it And there are certain Administrations which have been always Ruled to be out of the Statute as Administrations during Minority pendente lite which need not be granted to the next of Kin and granting it to the Husband comes not within the Words of the Statute But because in this case Administration had been granted so long before the Residuary Legatee came in and the Administrators by Decrees in Chancery had got in great part of the Estate and still there were Suits depending there for obtaining of the rest which were near their Effect which would be abated and set aside if the Administration were now Repealed The Court proposed an Accommodation as most useful to either of the Parties and advantagious to the Estate which was accepted The Civilians said That a Legatee that had got Administration tho' it were after Repealed upon a Citation should yet retain for his Legacy Otherwise upon an Appeal for there the Administration is avoided ab initio Vid. Blackman's Case 6 Co. Bedniff Ux ' versus Pople Ux ' A Prohibition was prayed to stay a Suit for Defamation in the Ecclesiastical Court for Words spoken to the Servant of the Plaintiff viz. Go tell thy Mistress Whore she is a Whore and I will prove it It was said they were common Words of Brabling and not importing any such Slander for which Suit could be there 3 Cro. 393. Dimmock versus Fawcet 3 Cro. 456. Pewe and his Wife versus Jeffryes Hale These cannot be said to be Words of Heat as if spoken when the Parties are Scolding together but were uttered deliberately in the Parties absence to her Servant Formerly they would Prohibit unless the Words implied some Act to have been done Vid. Eaton versus Ayloff 3 Cro. 110. But 't is Reason the Suit should proceed in this Case seeing it is for matter of Slander which is punished by publick Pennance Therefore Suit lies in London for calling Whore because by the Custom there Whores are to be Carted Wherefore the Court denied a Prohibition Road versus Wilmott IN False Imprisonment the Defendant Iustified by a Capias directed to him upon a Suit commenced against the Plaintiff in an Inferiour Court. To which the Plaintiff Demurred because it was not shewn that a Summons was issued first and Inferiour Courts can Award no Capias but upon a Summons first Returned To which it was Answered That this being admitted yet it is but an Erroneous Process in the Execution of which the Officer is excused who is not to be punished when the Court proceeds inverso ordine Hale said It was a great Abuse in those Courts their ordinary Practice being to grant a Capias without any Summons so that the Party is driven to Bail in every trivial Action and that tho' upon a Writ of Error this Matter is not assignable because a Fault in the Process is aided by Appearance c. yet False Imprisonment lies upon it and the Officer cannot Iustifie here as upon Process out of the Courts of Westminster For suppose an Attachment should go out of the County Court without a Plaint could he that executes it Iustifie Yet a Sheriff may Iustifie an Arrest upon a Capias out of the Common Pleas 10 Co. 76. 3 Cro. 446. tho' there were no Original But Ministers to the Courts below must see that things be duly done Wherefore the Plaintiff must have Judgment Monk's Case A Debt was recovered against him in this Court and the Money levied by the Sheriff which he did not deliver but was ordered to bring it into Court until a difference that arose about it was determined Monk being indebted to the King a Writ was issued out to enquire what Goods and Chattels he had The Kings Attorney moved that they might have leave to find this Money the Court conceived that the Money being but as a Depositum there they might find it and that the Court did not protect it from the Inquisition as when Goods are under an Attachment they cannot be distrained but they would not make any direction for the finding of it Blackamore versus Mercer IN Judgment against an Executor a Fieri facias issued out to the Sheriff with a Scire fieri inquiry and a Devastavit was found according to the common course the return whereof was quod diversa bona quae fuerunt restatoris c. habuit quae elongavit in usum suum proprium convertit It was objected against this Return That it was not said Devastavit for in some Cases an Executor may justly convert the Goods to his own use Hale said antiently when the Sheriff returned a Devastavit which was not found by any Inquisition and to which there was no answer it was necessary to insert the word Devastavit But otherwise in a return upon this Special Writ for if the case be that he hath not wasted the Goods but only eloigned then so as the Sheriff cannot come at them the Executor is chargeable upon this Writ de bonis propriis and this Return answers the Writ Perrot versus Bridges IN Trespass quare clausum fregit and threw down his Fences The Defendant pleaded Not guilty to all but the breaking of the Fences and for that he justifies for that he was possessed of certain Corn in the place where as of his proper Goods and made a breach in the Fence as was necessary for the carrying of it away The Plaintiff Demurrs Specially because he did not shew by what Title he was possessed of the Corn. And the Court were of Opinion that for that cause the Plea was insufficient for if a Man enters upon anothers Land and sows it 't is his Corn while he that hath right re-enters so if Tenant at Will sows the Ground and then determins his own Will he cannot break the Hedges to carry the Corn away And Twisden said if the Sheriff sells Corn growing by a Fieri facias the Vendee cannot justifie an entry upon the Land to Reap it until such time as the Corn is Ripe Anonymus IF an Administrator brings an Action the declaring hic in Curia prolat ' of the Letters of Administration is but matter of Form tho' it hath béen held otherwise For Hale said 't is not part of the Declaration as a Specialty is upon which Debt Covenant c. is brought but
But since H. 8. time it had béen for the most part administred by the Dean and Chapter and the Verdict was here for the Dean and Chapter King versus Melling IN an Ejectment upon a Special Verdict the case was this R. Melling seized in Fee having Issue four Sons William Robert Bernard and John devised the Land in question in this manner I give my Land to my Son Bernard for his natural Life and after his decease I give the same to the Issue of his Body lawfully begotten on a second Wife and for want of such Issue to John Melling and his Heirs for ever Provided that Bernard may make a Joynture of all the Premisses to such second Wife which she may enjoy during her Life R.M. dies Bernard in the life of his first Wife suffered a Recovery to the use of himself in Fee and after her decease Marries a second Wife and then by Indenture covenants to stand seized to the use of himself for Life and after to the use of his Wife for her Life for her Joynture and dies J.M. Enters and makes a Lease to the Plaintiff And this Term after Arguments at the Bar the Court gave their Opinions Rainsford for the Plaintiff First I hold in this Case that B. M. takes but an Estate for Life with a Contingent Remainder to the Issue by his second Wife for the Devise is by express words for Life as in Archers Case 1 Co. a Devise to R. A. for Life and after to the next Heir Male of R. and the Heirs Males of that Heir Male Resolved to create but an Estate for Life to R. A. I rely mainly upon Wilds Case 6 Co. which was brought before all the Judges of England where the Devise was to a Man and his Wife and after their decease to the Children and resolved to be but an Estate for Life 't is true there were Children at the time of the Devise but in the end of the Case 't is said that in such Case if there were no Children the Children born after might take by remainder and the first Estate to be but for Life Clerk v. Day 1 Cro. 313. the Devise was to Rose his Daughter for Life and that if she married after his Death and had Heir of her Body then that the Heir after his Daughter's Death should have the Land and to the Heirs of their Body begotten and if his Daughter died without Issue then to a Stranger It was held by Gawdy and Fenner that Rose had but an Estate for Life in this Case 1 Rolls 837. Devise to his eldest Son for Life and after his decease to the Sons of his Body lawfully begotten the Son resolved to have but an Estate for Life The Second point Whether the power to make a Joynture be destroyed by the Common Recovery these powers to make Estates are of two sorts either Collateral as when Executors have power by a Will to sell Land and such a power cannot be destroyed as appears in Diggs's Case 1 Co. or powers appendant to Estates as to make Leases which shall continue after the Estates to which the power is annexed determins and the power in the Case at Bar to make a Joynture are of this second sort and are destroyed by the alteration of the Estate to which it is annexed in privity as 1 Co. Albany's Case is so that the Common Recovery being a Forfeiture of the Estate for Life by consequence 't is an extinguishment of the power Thirdly But admitting the power continues whether it be well executed and I hold that it is not for being seized in Fee at the time of the Covenant to stand seized to the use of his Wife for her Joynture and this without any reference to his power the use shall arise out of his Interest and not be executed by vertue of his power according to the resolution in Sir Ed. Cleeres Case 6 Co. Twisden of the same Opinion As to the first Point it must be agreed that these words Issue of the Body ex vi termini make not an Entail if they were in a Conveyance by Act executed no more than Children as the words were in Wilds Case 'T is true in a VVill a Devise of Land to a Man and his Issue creates an Entail if the Devisee had no Issue at that time for otherwise those words would be void for in regard they are limited to take presently the Issue born after cannot take as by Remainder there being none to take in praesenti they must be intended to be words of Limitation as a Devise to a Man and his Heirs Males makes an Entail or otherwise the word Males must be rejected then seeing the words in themselves are not proper to make an Entail the next thing to be considered is the intention which is to be known by the expressions in the VVill and not any averment dehors the words are J will give my Land to my Son for Life and after his decease I will give the same to the Issue c. so that the Land is given to him expresly for Life Devise of Land in perpetuum makes Fee but if Land be given by Deèd in perpetuum there an Estate only for Life will pass 15 H. 7. A Devise to one paying 10 l this is a Fee 6 Co. Coliers Case But a Devise to one for Life paying 10 l makes but an Estate for Life the Case of Furse and VVinter was Mich. or Trin. 13 Regis Caroli Rot. 1339. A Devise to his two Daughters equally to be divided between them and to the Survivor of them and to the Heirs of the Body of the Survivor This was so expresly to the Surviror that it was resolved to be a Joynt Estate and not in Common The words here are after the decease of Bernard I give the same to the Issue of the Body c. implying that the Issue should take by Purchase as a Gift and not by Descent Again The power given to Bernard to make a Joynture shews that he could not do it by Virtue of his Estate and therefore needed a power to be annexed And tho' such powers are usually affixed to Estates Tail yet when the construction is doubtful what Estate shall pass the giving such a power is an argument that 't is such an Estate that cannot make a Joynture or the like by any other means The words go further and for want of such Issue then to J.M. 'T is true if Land be devised to a Man and if he dies without Issue then to remain over the Devisee shall have an Entail Owen 29. But it shall not be so in this Case because that Clause is crowded in with other Clauses directly to the contrary I rely mainly upon VVilds Case 6 Co. and the Case quoted out of Bendlowes in the end of that Case A Devise to Baron and Feme and to the Men Children of their Bodies begotten because it did not appear that there were any more Children at
of Wood he hath the effect of his Grant But Trees differ in value exceedingly from each other Bolton versus Cannon IN Debt against an Executor for Rent Arrere in his own time in the debet detinet The Defendant pleads that the Rent is more worth than the Land and that he tendred a Surrender before the time for which the Rent is demanded and that the Plaintiff refused to accept the Surrender and that he had fully administred and so demands Iudgment of the Action The Plaintiff replies that there was Rent Arrear to him and that therefore he was not bound to accept of the Surrender and to this the Defendant Demurrs The Court said First That an Executor that does intermeddle cannot wave a Lease or any other part of the Testators Estate for he cannot assume the Executorship for part and refuse for part Secondly That in case the Land be not more worth than the Rent it is a good Plea to an Action of Debt in the debet and detinet for he is to be charged in the detinet only tho' where the Rent is of less value he may be charged in the debet detinet for that which is accrued in his own time according to Hargraves Case 5 Co. Thirdly The doubt here is that the Defendant having waved the material part of his Plea viz. That the Rent exceeded the value of the Land and relied upon his tender of a Surrender which is nothing to the purpose whether Judgment can be here for him and that otherwise his Plea is double but because the Plaintiff hath not demurred to that but answered only to one part of it the Defendant might well Demurr upon the Replication because it does not answer all contained in the Plea for unless the party Demurrs for doubleness he is bound to answer all the matters alledged Et Adjornatur But being this Term moved again Iudgment was given for the Plaintiff because the Defendant relinquished the material part of his Bar and offered matter meerly frivolous Cartwright versus Pinkney TEnant for years Surrenders to the Lessor reserving a Rent the question was Whether it was a good Reservation And held that it was upon the Contract and that Debt lay after the first day was incurred wherein it was reserved to be paid for it was in the nature of a Rent and not of a Sum in Gross Ante Wilson and Pinckney Anonymus IN Trespass for Fishing in his several Fishery pisces cepit After a Verdict for the Plaintiff it was moved in Arrest of Judgment that the Plaintiff ought to have alledged what kind of Fishes and the number of them as in Playters Case 5 Co. is But for that it was said on the other side that at that time they were more strict in the certainty of pleading than since for now and indebitat ' Assumpsit for Work done or Goods sold is allowed without further certainty And that however the Oxford Act 15 Car. 2. here helped it for tho' this be none of the defects there enumerated yet the words of the Act being That Judgment shall not be arrested for any other exception that doth not alter the nature of the Action or Tryal of the Issue shall extend to this Case But the Court were of Opinion that none of the Acts had aided this Case in regard that there was not so much as the number of the Fishes expressed as if a Man should bring Trespass for taking of his Beasts and not say what But Hale said Trover for a Ship cum velis had been allowed because all made but one aggregate Body both the Ship and Sails But Trover pro velis would not be good Vid. 2 Cro. 435. Trespass quare clausum fregit Spinas cepit and 3 Cro. 553. Child and Greenhills Case Dr. Webb versus Batchelour al' IN Trespass for taking so many Cowes upon Not guilty a Special Verdict was found That an Act of this King for repairing of the High-ways appoints that such persons as keep Carts and Horses c. should send them at certain times to assist in the repairing of the Ways not having a reasonable excuse and that warning was given to the Parishioners of the Parish whereof the Plaintiff was Parson to send in their Carts and that the Plaintiff omitting to do it a Justice of Peace made a Warrant to the Defendant to distrain him according to the Authority given by the Act c. It was alledged for the Plaintiff First That Clergymen were not obliged by this Act for Ecclesiastical Persons have always had immunities from such charges as Pontage Murage c. and shall not be comprehended in the general words Parishioners Secondly That in regard the Act allows an excuse the Justice of the Peace ought to have caused the Plaintiff to have appeared before him to have seen whether he had an excuse before he could have made his Warrant and tho' the Officer that executes the Process of a Court of Record be indemnified where the proceeding is Erroneous yet 't is not so where the proceeding is not of Record as the 10 Co. in the case of the Marshalsey 3 Cro. 394. Nicholls versus Walker and Carter Where a Warrant was made by a Justice of the Peace to distrain for a Poors Rate Trespass was maintained against the Officer that executed the VVarrant because the Plaintiff was not chargeable as an Inhabitant of the Parish for whose Poor the Rate was made Curia contra 1. The Clergy are liable to all publick charges imposed by Act of Parliament and that hath been resolved as Hale said upon debate before all the Judges 2. The Officer that executes the VVarrant though unduely made for the cause alledged is not answerable for he is not to judge but to execute the matter it being within the Jurisdiction of the Justice of the Peace and 't is not like the Case in the 3 Cro. for there the Churchwardens And Overseers of one Parish distrained in another Parish which was out of the limits of their Authority but in 14 H. 8. 16. where a Justice of the Peace made a VVarrant to Arrest a Man for Felony which in those times was held beyond his power tho' otherwise since unless there had been some Indictment of Record yet 't is there held the Officer that executes such VVarrant is not punishable Wherefore Judgment was given here for the Defendants Termino Sanctae Michaelis Anno 27 Car. II. In Banco Regis Anonymus A Judgment was removed by Error into this Court and affirmed the Capias that is Awarded thereupon must mention it and not be general as upon a Judgment originally in this Court and if such a Writ issues out the Court will upon motion grant a Supersedeas and there needs no Writ of Error in Adjudicatione Executionis tho' it was taken out in a former Term. Anonymus LIbel was by the Churchwardens of c. in the Ecclesiastical Court for 1 l 6 s 8 d upon a Custom
taken strictly and here upon the first Fine the Earl of Leicester had no Estate left in him Mich. 6 Car. 1. in Communi Banco the Case of Ingram and Parker which tho' it may not be a clear Authority for me yet I am sure it does not make against me The Case was Catesby levied a Fine to the use of himself in Tail with Remainders over reserving a Power to himself and his Son to Revoke by Deed c. as in our Case and his Son after his decease by Deed intended to be Enrolled conveyed to one and his Heirs and after levied a Fine and it was held no Revocation First Because he having an Estate Tail in him the Deed might operate upon his Interest Secondly Because it was but an inchoation of a Conveyance and not perfected and they held it no Revocation and that the Fine levied after tho' intended to be to the Vses of the Deed yet should extinguish the Power Hale Chief Justice Vpon the close and nice putting of the Case this may seem to be no Revocation for 't is clear that neither the Deed nor Fine by it self can revoke but quae non valent singula juncta prosunt The Case of Kibbett and Lee in Hob. 312. treads close upon this Case where the Power was to Revoke by Writing under his Hand and Seal and delivered in the presence of three Witnesses and that then and from thenceforth the Uses should cease It was there Resolved that a Devise of the Lands by Will with all the Circumstances limited in the Power should Revoke yet the Delivery was one of the Circumstances and the Uses were to cease then and from thenceforth Whereas a Will which could have not effect while his Death did strongly import that the meaning was to do it by Deed and yet there the Will alone could be no Revocation for clearly he might have made another Will after and so required other Matter viz. his Death to compleat it And in that Case there is another put That if a Deed of Revocation had been made and the party had declared it should not take place until 100 l paid there the operation of it would have been in suspence until the 100 l paid and then it would have been sufficient yet there it had been done by several Acts and of several Natures the Intention in things of this nature mainly governs the Construction In Terries Case it was Ruled That if A. makes a Lease for years to B. and then Levies a Fine to him to the end that he might be Tenant to the Praecipe for the suffering of a Recovery that after the Recovery suffered his Lease should revive 'T is true in the Case at Bar if the Fine had been levied first and then the Deed of Uses made afterwards the Power had been extinguished by the Fine and so no Revocation of that which had no being could have been by the Deed. Twisden What if before the Fine levied the Intent had been declared to that purpose Hale I doubt whether that would have helped it I cannot submit to the Opinion in Parker and Ingrams Case cited viz. That the Deed not being Enrolled should make no Revocation For in case of a Power to make Leases for life it has been always held by the best Advice that the better way is to do it by Deed without Livery tho' Livery by the Common Law is incident to a Lease for life and so Adjudged in Rogers's Case for Lands in Blandford forum in Moor's Rep. where Tenant for life hath power to make Leases for life and makes a Lease by Livery 't is there held a Forfeiture tho' I conceived not because by the Deed the Lease takes effect and so the Livery comes too late Therefore the omission of Enrolling the Deed in that case does not seem to be material but if that Opinion be to be maintained it is because the party had such an Interest upon which the Deed might enure without Execution of his Power and so rather construed to work upon his Interest But that Reason does not satisfie because such an Estate as was intended to be conveyed could not be derived out of his Interest therefore it should take effect by his Power according to Clere's Case in the 6 Co. So by the whole Court here the Deed and Fine taken together were Resolved to be a good Execution of the Power and Judgment given accordingly Richardson versus Disborow A Prohibition was prayed to the Ecclesiastical Court where the Suit was for a Legacy and the Defendant pleaded That there was nothing remaining in his hands to pay it and that he had fully Administred And producing but one Witness to prove it Sentence was given against him and after he Appealed and because their Court gave no regard to a single Testimony he prays a Prohibition But it was urged on the other Side That it being a Matter within their Cognizance they might follow the Course of their own Law And tho' there are diversities of Opinions in the Books about this Matter yet since 8 Car. 1. Prohibitions have been been denied upon such a Surmize Hale Where the Matter to be proved which falls in incidently in a Cause before them is Temporal they ought not to deny such Proof as our Law allows and it would be a great Mischief to Executors if they should be forced to take two Witnesses for the payment of every petit Sum And if they should after their Death there would be the same Inconvenience In Yelv. 92. a Prohibition was granted upon the not admitting of One Witness to prove the Revocation of a Will Which is a stronger Case because that entirely is of Ecclesiastical Cognizance Wherefore let there go a Prohibition and let the party if he please Demur upon the Declaration upon the Attachment Hob. 188. 1 Cro. 88. Popham 59. Latch 117. Pigot versus Bridge IN Debt upon a Bond Conditioned for performance of Covenants and the Breach assigned was in the not quietly enjoying the Land demised unto him The Defendant pleads that the Lease was made to hold from Michaelmas 1661 to Michaelmas 1668 and that paying so much Rent Half yearly he was to Enjoy quietly and shews that he did not pay the last half years Rent ending at Michaelmas 1668. To which the Plaintiff Demurred supposing that the words being to Michaelmas 1668. there was not an entire Half year the Day being to be excluded and that it was so held in the Case of Umble and Fisher in the 1 Cro. 702. Cur ' contra 'T is true in pleading usque tale Festum will exclude that Day but in case of a Reservation the Construction is to be governed by the Intent Anonymus NOte per Hale Debt doth not lye against the Executor of an Executor upon a Surmize of a Devastavit by the first Executor For First 'T is a Personal Tort for which his Executor cannot be charged Secondly 'T is such an Action of Debt as would
Ejectment the Case upon a Special Verdict was to this effect Sir John Danvers being seized of the Lands c. in Tail with the Fee expectant Anno 1646 and in 1647 levied a Fine to the same uses as he was before seized save that a power was reserved to make Leases for any number of years and without reserving any Rent Sir John Danvers did after become Guilty of Treason in Murdring of King Charles the first in 1648 and died in 1655. In 13 Car. 2. cap. 15. the Statute commonly called the Statute of Pains and Penalties Enacts That sundry of the Offenders in that execrable Treason of which Sir J. D. was one should amongst other Penalties there inflicted forfeit all their Lands Tenements and Hereditaments Leases for years Chattels real and interest of what nature or quality soever See the Act of 14 of this King The Lands were by Patent granted to the Duke of York who let them to the Defendant And John Danvers Heir of Sir John Danvers entred and made the Lease to the Plaintiff It had been several times argued at the Bar and this Term Iudgment was given by the Court for the Defendant And Rainsford Chief Justice delivered the Opinion of the Court and the Reasons for himself Twisden Wild and Jones as followeth The question being Whether an Estate Tail were forfeited by the words of the Act of 13 Car. 2. It was observed that all Estates were Fee simple at the Common Law and forfeitable W. the 2. de donis was the first Statute that protected Estates Tail from Alienations and from all Forfeitures of all kinds and so continued until the 12 E. 4. Taltarums Case from which time common Recoveries have been held not to be restrained by the Statute de donis and by the way it must be considered that Perpetuities were never favoured Then came the Statute of 4. H. 7. of Fines which with the explanation of the 32 H. 8. have been always resolved to bar the Issues in Tail so as to Alienations Estates Tail were set free but were not forfeitable no not for Treason until the 26 H. 8. by which they became subjected to Forfeitures in case of Treason and so by 5 E. 6. But 't is true these Statutes extend only to Attainders and 33 H. 8. Vests the Lands c. in the Kings possession without Office Thus having considered the History and Progress of Estates Tail the reasons why such an Estate should be construed to be forfeited upon this Act of 13 Car. 2. are these First The Crime mentioned is of the same nature and with the same aggravations as in 12 Car. 2. by which the Offenders are attainted of Treason c. for they are called Perpetrators of that execrable Treason with many Expressions to the like effect which was looked upon as an offence of that hainous nature that the same Parliament Enacted An Anniversary Humiliation throughout the whole Kingdom to be perpetually observed upon the account of it as if not only they that acted it but the whole Kingdom and their Posterity like to another Original sin were involved in the Guilt of it Nati natorum qui nascuntur ab illis And therefore the Punishment shall not be mitigated in any other manner than is expresly provided by that Act. Secondly It is proved by the generally and comprehensions of the words which are made use of viz. Possessions Rights Hereditaments of what nature soever Interests which does as well signifie the Estate in the ting as that wherein the Estate is which can have no effect if not extended to Estates Tail We must observe also that at the making of this Act entailed Lands were not protected from Forfeitures and tho' 26 H. 8. extends only to Cases where the Offender is attainted yet 't is of good direction to the Judges in Cases of like nature and 't is plain that by this Act of 13 Car. 2. the Offenders were looked upon in pari gradu with these attainted for when the Proviso comes to save the Estates of Strangers c. in trust for whom the Offenders were seized It is said notwithstanding any of the Convictions or Attainders aforesaid Thirdly It is to be observed that the Act takes notice that divers of the Offenders included in this Act were dead now in regard most Lands are known to be entailed if the Act had not intended such Estates to be forfeited it would signifie nothing indeed if the Offenders had been alive it might have been somewhat satisfied with the Forfeiture during their Lives But as the case was it should be of no effect at all after making a great noise of Forfeitures and Confiscations the Act would have been but a Gun charged only with Powder or as in the Fable Parturiunt Montes c. Fourthly It is manifest that the Parliament did not intend that the Children or Heirs of the Persons within the Penalties of the Act should have any benefit of their Estates for in the saving which is made for Purchasers upon valuable Considerations the Wives Children and Heirs of the Offenders are excepted then surely if they would bar them of the benefit of their Purchases à fortiori from inheriting to an Estate Tail especially of a voluntary Entail that seems to be made with a prospect of this Treason which was perpetrated a year after and such an Entail as scarce the like was ever seen before that a power should be reserved to make Leases for any number of years and without Reservation of any Rent By which it is manifest that Sir John Danvers that committed the Treason was fully Master of the Estate Again all Conveyances are avoided by the Act unless such as were upon valuable Consideration which this Fine was not The great case which has been insisted upon by way of objection is Trudgeons Case Co. Litt. 130. Estates Tail were not forfeited upon the Statute of Praemunire but during the Offenders Life For answer to that it must be observed that that Forfeiture is upon the Statute of 16 R. 2. at which times Estates Tail were under thè protection of the Statute de donis but since that time the Judges have not been so strict in expounding Statutes concerning Estates Tail as appears by Adams and Lamberts Case 4 Co. That an Estate Tail given for a superstitious use was within the Statute of 1 E. 6. cap. 4. where the words are generally and not so large as in our case nor so much to demonstrate the intent as is in our Act to extend to Estates Tail wherefore Iudgment was given for the Defendant Note They that argued for the Defendant endeavoured to maintain that if it should be admitted that Entails were not forfeited by the Act yet the Estate of Sir John Danvers in those Lands would be forfeited in regard he levied a Fine in 1647 and the Act of 13 Car. 2. extends to all Lands c. whereof the Persons therein mentioned were seized c. since 1646 and he being
Trover inter al' de uno Instrumento ferreo Anglicè an Iron Range After Verdict for the Plaintiff it was moved in Arrest of Judgment that Instrumentum ferreum was too uncertain and that a Range was the same with a Grate for which Crates was a proper Latin word Sed non allocatur For Crates is such a Grate as is before a Prison But a Fire Range was not in use in the Romans time and therefore Instrumentum ferreum is well enough with the Anglicè Twisden said Trover de septem libris has been held good without saying what they were Blackman's Case IT was assigned for Error that the Venire was to Summon probos legales homines instead of liberos and so a material Variance and alledged that many Judgments had been Reversed for it But the Court here being informed that the Presidents were generally probos instead of liberos would not allow the Exception The King versus Armstrong Harrison al' c. THey and others were Indicted for Conspiring to Charge one with the Keeping of a Bastard Child and thereby also to bring him to Disgrace After Verdict for the King it was moved in Arrest of Judgment that the bare Conspiring without Executing of it by some Overt act was not subject to Indictment according to the Poulterers Case in the 9 Co. And it doth not appear that he was actually Charged with the Keeping of a Child nay 't is alledged 't was but a pretended Child neither was he by Warrant brought before a Justice of Peace upon such an account but only that they went and affirmed it to the party himself intending to obtain Money from him that it might be no further disclosed Sed non allocatur For there was as much Overt act as the nature and design of this Conspiracy did admit in regard there was no Child really but only a Contrivance to Defame the Person and Cheat him of his Money which was a Crime of a very heinous nature Then it was alledged That this was tryed at the Old-Baily commonly called Justice-Hall in London and the Jury came de Warda de Faringdon extra London which appeared to be out of the Iurisdiction Sed non allocatur For the Name of the Ward is Faringdon extra to distinguish it from Faringdon infra but both are known to be in London Whereupon Judgment was Entred up against them and Armstrong which appeared to be the principal Offender was Fined 50 l and the other 30 l Burrough's Case HE and others were Indicted for that they being Church-wardens Overseers of the Poor and a Constable did contemptuously and voluntarily neglect to Execute diversa Praecepta Watranta directed to them by the Bayliffs of Ipswich being Justices of the Peace under their Hands and Seals c. It was moved to quash it for that the nature and tenour of the Warrants were not expressed in the Indictment For unless the parties know particularly what they are charged with they cannot tell how to make their Defence And for that Reason it was quashed by the Court. Note The Court never gives Costs for not Executing of a Writ of Enquiry of Damages tho' Notice be given Anonymus AN Indictment of Forcible Entry into certain Lands in the possession of J.S. was quashed for not shewing what Estate J.S. had and tho' the word Disseisivit were in the Court held that tho' that might be taken to imply a Freehold yet it was not sufficient Vid. Mo. 481. And another was quashed because it was said possessed pro termino But the Court held that if it had been pro termino annorum tho' not said for how many years it had been well Note A Bayliff caught one by the Hand whom he had a Warrant to Arrest as he held it out of a Window And the Court said that this was such a Taking of him that the Bayliff might justifie the breaking open of the House to Carry him away Kent versus Harpool AN Ejectment The Case came hither by a Writ of Error out of the Kings-Bench in Ireland and divers Points were in it which concerned the Act for Settlement of Lands in Ireland But the Case was as to the great Point at Common Law to this effect Father Tenant for Life Remainder to the Son for Life Remainder to first Son of that Son who was not born Remainder to the Heirs of the Body of the Father the Father died before the first Son was born and Whether the Descent of the Entail to the Son did prevent the Contingent Remainder was the Question It was Argued that it did not because the Inheritance came to the Son by Act in Law And the Opinion in Cordal's Case in the 1 Cro. 315. was cited the great Reason in Chudley's Case and other Cases wherein Contingent Remainders have been held to be destroyed was for the preventing of Perpetuities which would have been let in if Contingent Remainders had been preserved whatever Act had been done by those which had the Actual Estate But there is no such necessity of making the life Construction upon Acts in Law If Lessee for years makes the Lessor Executor the Term is not drowned But if the Executor that hath a Lease purchases the Inheritance the Term is gone because it is his own act but in the other Case the Law shall not work that which must be construed a Devastavit In Lewis Bowles's Case in the 11 Co. and Co. Litt. where there is an Estate for Life Remainder to the first Son Remainder in Fee to the Tenant for Life the Estates at first close and open again upon the Birth of the first Son which should take the Remainder And so it may be here But the Court seemed to be of Opinion that the Contingent Remainder was destroyed by the Descent of the Estate Tail And Rainsford Chief Justice relyed upon Wood and Ingersol's Case in the 2 Cro. 260. where a Devise was to the first Son for Life Remainder to the Son which should survive and there three Judges against one held that the descent of the Fee upon the first Son prevented the Contingent Remainder to the Survivor Et Adjornatur Note In Lewis Bowle's Case the Estates were united at the first upon making of the Conveyance Smith versus Tracy IN a Prohibition the Case was One died Intestate and whether his Brother of the Half-blood should come in for Distribution upon the new Statute of 22 23 Car. 2. cap. 10. was the Question It was Argued that the Half blood should have no share for the Words are The next of Kindred to the Dead person in equal Degree which the Half-blood is not The Words likewise are Those which legally represent their Stocks and that must be intended in an Act of Parliament such as the Common Law makes to be Representatives and not the Civil Law For then it would be that the Bastard eigne should come in for Distribution For their Rule is that subsequens matrimonium facit
the Suit against one alone ought not to be as in an Assize for a Rent-charge all the Ter-Tenants are to be named and here the party has an Election to Sue a Writ of Annuity and if so be must have named all that had been chargeable Curia 'T is true in our Law it were a good Plea in Abatement but perhaps their Law and Course is otherwise And here they have Jurisdiction and may proceed according to their own Rules or if not you may have an Appeal Whereupon a Prohibition was denied Anonymus IN an Habeas Corpus and Certiorari for the Body of J. S. who had been Imprisoned for not paying of a Fine of 20 l set at the Quarter Sessions The Return was that he being Constable and demanded by the Court to Present an High-way which was sworn before him by Two Witnesses to be out of Repair said in Contempt of the Court That he would not Present it For which and certain other contemptuous words the Fine was set The Counsel for the Prisoner moved that it might be Filed Which was done The Court were of Opinion that the Fine was not well set for Constables are to Present upon their own Knowledge and the Two Witnesses should have been carried to the Grand Jury for the Constable was not obliged to Present upon their Testimony This Court is to judge of their Fines whether without Cause or to mitigate them when excessively imposed and for the Contemptuous Words the Return is ill because not expressed what On the other side it was prayed that the Return might be amended for he had spoken Opprobious Words but that could not be admitted after the Filing And so the party was discharged Anonymus IT was moved to quash an Order of Sessions for the Keeping of a Bastard Child First That it doth not appear that the Child was born within the Parish Secondly 'T is to allow so much Weekly until the Child is Eight years of Age whereas the Statute gives power to make a Weekly allowance while the Child shall be chargeable Thirdly The Order was at Eight years old to pay 5 l for the Binding of it out But the Court would not quash it for they said it was implied by saying it would be chargeable to the Parish that it was born there and 't was apparent it would continue Chargeable for so long as they appointed the Allowance and they might Order 5 l to be paid in the end Sed Quaere For a Sum in gross ought not to be set but a Weekly allowance And the Court said they must shew that respect to Justices of the Peace who served the Country at their own charge as not too nicely to examine their Orders Anonymus ERror upon a Judgment by Nihil dicit given in the Common Pleas where the Action was for Words which in the Declaration were laid thus That the Defendant said Quidam J. S. which was the Plaintiffs Name innuendo the Plaintiff was c. The Error assigned was that there was no Averment that these Words were spoke of the Plaintiff for there might be more of the name But Holt for the Defendant said the Innuendo would help that fault and he cited the Case of Rebotham and Venlecke in the 3 Cro. 378. where the Plaintiff Declared that he had made an Oath before a Judge upon certain Articles exhibited for the Good Behaviour and the Defendant to Scandalize him said He made a false Oath Innuendo the said Oath before the Judge where it was held that the Innuendo was sufficient to ascertain what Oath was meant But the Court Reversed the Judgment in this Case and said that not saying in the Declaration that the Words were spoken of the Plaintiff it was not sufficient to bring that in by an Innuendo which ought to have been Averred and it is the worse because 't is said quidam J.S. which imports another person than the Plaintiff Anonymus ERror to Reverse a Judgment given in the Kings-Bench in Ireland in a Prohibition where the Issue was Whether he had Prosecuted in the Court Christian after the Prohibition and it was found for the Plaintiff and Damages assessed to 100 l and 6 d pro misis custagiis And now the Error was assigned in the Judgment given which was That the Plaintiff should recover damna praedicta per Juratores assess ad 100 l nec non pro misis custagiis de incremento per Cur ' adjudicat ' 20 l omitting the 6 d Costs given by the Jury On the other side it was said That damna praedicta in the Judgment included all and the saying 100 l was but a Miscomputation Et Adjornatur Postea Hill 33 34 Car. 2. How versus Whitfield A Fine of certain Lands to the use of J. S. for Life and after to his Executors and Assigns for 80 years with Power to the Lessee and his Assigns to lett Leases for 21 years reserving the ancient Rent After several mean Assignments the Assignee of an Executor of an Assignee made a Lease for 21 years which in the Special Verdict was found to be made of the said Lands inter alia reserving proinde six shillings per annum and found that six shillings was the ancient yearly Rent for the Land The Court seemed to be of opinion that an Assignee after so many Removes might execute this Power for it was coupled with an Interest and annexed to the Estate tho' to be construed strictly but in regard the Lease was made of the Land inter alia reserving proinde c. in case the Reservation should be taken to be for the whole Land then it was not the ancient Rent reserved for this and upon that they doubted Et Adjornatur Postea Anonymus AN Indictment was quashed for want of Addition For the Court said no Process ought to go out thereupon because the party cannot be Outlawed Anonymus IN an Habeas Corpus the Return was that the party was taken upon an Excom ' Cap ' It was moved that the party might be discharged because upon Search it appeared that the Writ had not been Enrolled in this Court for so it ought to be by the Statute of the 5th of the Queen tho' the Writ issues out of Chancery The Court doubted whether they could Discharge him upon a Motion or that he should be driven to plead this Matter And it was said the Course had been both ways Vid. Parker's Case 3 Cro. 553. But the party was afterwards Discharged ut opinor Herne versus Brown A Prohibition was prayed to a Suit in the Ecclesiastical Court The Libel sets out That a Tax had been made for the Repairs of a Church where the Defendant inhabited and was to make him pay his proportion To which they required his Answer viz. Whether he had paid c. The Suggestion was that the party had tendred his Answer but the Court had refused it because it was not upon Oath and that the Ecclesiastical Court
cannot tender an Oath to the party sued nisi in causis Matrimonialibus Testamentariis But the Court after hearing divers Arguments denied the Prohibition for they said It was no more than the Chancery did to make Defendants answer upon Oath in such like Cases Termino Sanctae Trinitatis Anno 31 Car. II. In Banco Regis How versus Whitfield ante in ult ' Term. IN Repl the Plaintiff declares of the taking of his Cattle in a Close containing five Acres The Defendant avows and sets forth a Fine to the use of A. in Tail which discended to him Virtute cujus he was seised in Dominico ut de feodo talliato c. The Plaintiff Replies that the Fine was first to the use of J. S. for Life the Remainder to his Executors Administrators and Assigns for 80 years with Power to him and his Assigns to lett the five Acres in Possession or Reversion for 21 years determinable upon three Lives reserving the ancient Rent and that J. S. Devised this Term to J. N. and died his Executors assented and after it came to the Executors of J. N. who assigned it and that the Assignee made a Lease of the said five Acres inter alia reserving proinde the Rent of 6 s per annum and avers that the ancient Rent was 6 s per annum The Avowant Rejoyns setting forth his former Title And the Plaintiff Demurrs It was Objected First That the Plaintiff ought to have traversed the Seisin in Tail alledged by the Avowant seeing in his Replication he sets forth and intitles himself under an Estate inconsistent with it To this it was Answered and the Court agreed that there ought to be no Traverse for the Avowant doth not say it was his Freehold or that he was Seised in Tail but only under a Virtute cujus c. And the Plaintiff in his Replication sets forth a Title consistent with all that the Avowant alledges and so confesses and avoids and all depends upon the execution of the Power And for that Secondly It was Objected That he which made this Lease was not Assignee of J. S. for Executors were not within the Power and consequently not their Assignee This is a Power collateral to the Estate and shall not run with the Land for then Assignees of Commissioners of Bankrupcy the Vendee of the Term by the Sheriff upon an Execution c. should execute this Power It is like Covenants annexed to Leases which the Assignee could not take advantage of till 32 H. 8. Again Here appears to be no good Reservation for the Lease is of the five Acres inter al' reserving proinde so that the Rent issues out of other Lands as well as the five Acres and therefore cannot be said to be the ancient Rent reserved upon that The Court were all of Opinion that the Assignee in this case might execute the Power and conceived that Assignees might include Assignees in Law Vid. Mo. 855. as well as Fact but however the Tenant for Life devising this Term the Devisee was an Assignee and the Power in the greatest strictness of acceptation was in him and consequently must go to his Executors and by the same Reason to their Assignee As to the Reserving the Rent proinde the Court said it might be intended that the inter al' might comprehend nothing but such things out of which a Rent could not be reserved and then the six Shillings was reserved only for the five Acres However the proinde might reasonably be referred only to the five Acres and not to the inter al and that a distinct Reservation of Six shillings might be for five Acres And so Judgment was given for the Plaintiff Ante. Steed versus Berrier ERror upon a Judgment given in the Court of Common Pleas upon a Special Verdict the Case was to this effect J.S. made his Will in Writing and devised Lands to his Son J.S. and his Heirs and in the same Will gave a Legacy of 100 l to his Grandson The Son died afterwards in his Life time after whose decease J. S. the Grandfather made a Codicil wherein he gave away part of the Lands devised as aforesaid to a Stranger and afterwards declared by Parol that his Intention was that his Grandson J. S. should have the Lands which his Son J. S. should have had The Question upon this Special Verdict was Whether this were sufficient to carry the Lands to the Grandson And Judgment was given in the Common Pleas by three Judges against one that it was Whereupon a Writ of Error was brought in this Court Finch Solicitor Argued that this Will was sufficient to carry it to the Grandson He agreed Brett and Ridgen's Case in Pl. Com. that a Devise to a man and his Heirs who dies in the Life of the Devisor a new Publication will not be enough to make the Heir take by the Will because named in the Will by way of Limitation of the Estate and not Designation of the Person that should take But in Fuller's Case in the 1 Cro. 423. and in Mo. 2. where the Devise was to his Son Richard and the Heirs of his Body which Richard afterwards died in his Life time and then the Devisor said My Will is That the Sons of Richard my Son deceased shall have the Land devised to their Father as they should have had if their Father had lived and died after me There Popham and Fenner held that this new Publication would carry the Land to Richard's Son Gawdy and Clench contra But our Case is much stronger for there Heirs of the Body were used only for Limitation but in the Will here where the words are I Devise to my Son J. with this new Publication the Grandson J. may take because a Grandson is a Son and when a Will is new Published it is all one as if it were wrote at the time of such Publication Beckford and Parncot's Case in the 1 Cro. 493. Mo. 404. Devise of all his Lands and after the Will the Devisor purchaseth other Lands and then publishes it again it will carry the new purchased Lands Dyer 149. Trevanian's Case Cestuy que use before the 27th of H. 8. Devised the Lands a new Publication will pass the Lands executed in him by the Statute The Opinion of the Court inclined to Reverse the Judgment they held it to be the same with Fuller's Case in the 1 Cro. that no Parol averment can carry Lands to one person when the words of the Will plainly intended them to another They agreed If a man having no Son but a Grandson deviseth his Lands to his Son the Grandson may take But here is an opposition contained in the new Publication viz. Those Lands which my Son J. should have had my meaning is my Grandson J. shall have And in the Will it self there is a Legacy devised to the Grandson by that Name so where they are so distinguished 't is impossible to take the Grandson to be
upon the Warranty as well as the other tho' the Declaration saith knowing them to be naught yet the knowledge need not to be proved in Evidence Debt upon a Bond and a mutuatus may be joyned in one Action yet there must be several Pleas for Nil debet which is proper to the one will not serve in the Action upon the Bond. Sed Adjornatur Termino Sancti Hillarij Anno 34 35 Car. II. In Banco Regis Anonymus A Quo Warranto was brought against divers persons of the City of Worcester why they claimed to be Aldermen c. of the said Corporation The Cause came to be tried at the Bar and a Challenge was made to the Jury in behalf of the Defendants for that the Jury men were not Freeholders The Court said that for Juries within Corporate Towns it hath hath been held that the Statutes that have been made requiring that Jurymen should have so much Freehold do not extend to such places for if so there might be a failer of Justice for want of such Jurymen so qualified but then to maintain the Challenge it was said by the Common Law Jurymen were to be Freeholders But the Court overruled the Challenge but at the importunity of the Counsel they allowed a Bill of Exceptions and so a Verdict passed against the Defendants and afterwards it was moved in Arrest of Judgment upon the Point But the Court would not admit the Matter to be Debated before them tho' divers Presidents of like nature were offered because they said they had declared their Opinions before and the Redress might be upon a Writ of Error Termino Sanctae Trinitatis Anno 35 Car. II. In Banco Regis Anonymus A Motion for a Prohibition to a Suit in the Ecclesiastical Court for a Churchwarden's Rate suggesting that they had pleaded That it was not made with the Consent of the Parishioners and that the Plea was refused The Court said That the Churchwardens if the Parish were Summoned and refused to meet or make a Rate might make one alone for the Repairs of the Church if needful because that if the Repairs were neglected the Churchwardens were to be Cited and not the Parishioners and a Day was given to shew Cause why there should not go to a Prohibition Termino Sancti Michaelis Anno 35 Car. II. In Banco Regis Gamage's Case ERror out of the Court of the Grand Sessions where in an Ejectment the Case was upon Special Verdict upon the Will of one Gamage who devised his Lands in A. to his Wife for Life Item his Lands in B. to his Wife for Life and also his Lands which he purchased of C. to his Wife for Life and after the decease of his Wife he gave the said Lands to one of his Sons and his Heirs And the Question was Whether the Son should have all the Lands devised to the Wife or only those last mentioned And it was Adjudged in the Grand Sessions that all should pass And upon Error brought it was Argued that they were Devises to the Wife in distinct and separate Sentences and therefore his said Lands should be referred only to the last On the other side it was said that the word Said should not be referred to the last Antecedent but to all If a man conveys Land to A. for Life Remainder to B. in Tail Remainder to C. in forma praedict ' the Gift to C. is void 1 Inst 20. b. It is agreed if he said All the said Lands to his Son and his heirs it would have extended to the whole This is the same because Indefinitum equipollet universali Et Adjornatur Herring versus Brown IN an Ejectment upon a Special Verdict the Case was Tenant for Life with several Remainders over with a Power of Revocation Levied a Fine and then by a Deed found to be Sealed ten Days after declared the Vses of the Fine which Deed had the Circumstances required by the Power The Question in the Case was Whether the Fine had extinguished the Power It was Argued that it had not because the Deed and Fine shall be but one Conveyance and the use of a Fine or Recovery may be declared by a subsequent Deed in the 9 Co. Downam's Case And a Case was Cited which was in this Court in my Lord Hale's time between Garrett and Wilson where Tenant for Life with Remainders over had a Power of Revocation and by a Deed under his Hand and Seal Covenanted to levy a Fine and declared it should be to certain Vses and afterwards the Fine was Levied accordingly This was held to be a good execution of the Power and limitation of the new Vses and the Deed and Fine taken as one On the other side it was Argued That the Deed was but an Evidence to what Vses the Fine was intended and the Power was absolutely revoked by the Fine Suppose he in Remainder had Entred for the Forfeiture before this Deed should the Defendant have defeated his Right Et Adjornatur Postea Hodson versus Cooke IN an Action upon the Case for commencing of an Action against him in an Inferiour Court where the Cause of Action did arise out of the Jurisdiction After a Verdict for the Plaintiff upon Not Guilty it was moved in Arrest of Judgment That it was not set forth that the Defendant did know that the Place where the Action arose was out of the Jurisdiction which it would be hard to put the Plaintiff to take notice of On the other side it was said that the party ought to have a Recompence for the Inconvenience he is put to by being put to Bail perhaps in a Case where Bail is not required above and such like Disadvantages which are not in a Suit brought here and the Plaintiff ought at his peril to take notice However to help by the Verdict And of that Opinion were Jeffreys Lord Chief Justice Holloway and Walcot but Withens contra The Court said that it could not be assigned for Error in Fact that the Cause arose out of the Jurisdiction because that is contrary to the Allegation of the Record neither is the Officer punishable that executes Process in such Action but an Action lies against the party And so it was said to be resolved in a Case between Cowper and Cowper Pasch 18 Car. 2. in Scac. when my Lord Chief Baron Hale sate there Anonymus AN Indictment of Perjury for Swearing before a Justice of the Peace that J. S. was present at a Conventicle or Meeting for Religious Worship c. It was moved to quash it because it did not appear to be a Conventicle viz. That there was above the number of Five and so the Justice of the Peace had no power to take an Oath concerning it and then it could be no Perjury To which the Lord Chief Justice said That Conventicles were unlawful by the Common Law and the Justices may punish Unlawful Assemblies And he seemed to be of Opinion that a man might be
Estate Tail in Michael First Because in this Case the Use returns by operation of Law and executes an Estate in Michael for Life which being conjoined to the Estate limited to the Heirs Male of his Body makes an Estate Tail This Estate for Life rising by operation of Law is as strong as if it had been limitted to him for his Life and after his decease to the Heirs Male of his Body Secondly Because that a Limitation to the Heirs Male of his Body is in Construction of Law a Limitation to himself and the Heirs Male of his Body There is a great difference when he who has the Use limits it to A. for Life the Remainder to the Heirs of the Body of B. here no Estate can rise to B. because nothing moved from him but where he who has the Estate limits it to the Heirs Male of his own Body ut res valeat he shall have it for his Life Thirdly It is plainly according to the intent of the Parties the intent perfectly appears that the Issue by the second Wife should take and that Robert the eldest Son should not take till so much Money be paid therefore if we can by any means serve the intent of the parties we ought to do it as good Expositors For as my Lord Hobart says Judges in Construction of Deeds do no harm if they are astuti in serving the intent of the Parties without violating any Law Obj. Here the Use being never out of Michael he hath the ancient Use which is the Fee simple and consequently being the ancient Use and this being a new Limitation to the Heirs Male of his Body the ancient use and the new one cannot be piec'd to make an Estate Tail executed in Michael but it shall be a Contingent Use if any which ought to rise to the Heir Male of his Body and so remains the ancient Fee simple And it hath been compared to these Cases If a Man Covenants to stand seized to the Use of J.S. or of his Son after his Marriage or after the Death of J. D. these are Contingent Limitations and there is a Fee simple determinable in the Covenantor to serve the future Uses Resp 'T is true if a Man Covenants to stand seized to such Uses as that he leaves a discendible Estate in himself As if a Man Covenants to stand seized to the Use of his Son from and after his Marriage this is purely a Contingent Use because t is possible the Marriage may never take effect and nothing is fetch'd out of the Covenantor so if he Covenants to stand seized to the Use of J. S. after 40 years there is a Fee simple determinable in the Covenantor and therefore those Cases are not to be resembled to our Case where the Estate of Michael cannot continue longer than his Life And this without any wrong done to any Rule of Law may be turned to a Use for Life and therefore such construction shall be Object 2. Here is an Estate to rise by way of Use by a Deed and not by a Will which shall not be by Implication by a Deed. Resp It s a certain truth But we are not here upon raising an Estate by Implication but qualifying an Estate that is now in the Father which by this new Deed is to be qualified to be an Estate for Life to preserve the Estate Tail so that the Cases of Implication are not to the purpose Object 3. In this Case Michael shall be in of his ancient Estate in Fee simple which is in him and not of a new Estate created by Implication of Law and it hath been compared to the Devise of Land to a Mans Heir he shall not be in by the Devise but of his ancient Estate that would have descended to him Resp True But in this Case a Man may qualifie his Estate as in Gilpins Case Cro. Ca. 161. Devise to his Heir upon Condition that he shall pay his Debts in a year the Heir is a Purchasor so here is a qualification to turn the Estate of Michael into an Estate for Life ut res valeat Object 4. Michael had not an Intention to have an Estate for Life for in the Limitation of the other Lands he has limited them expressly to himself for Life and if he had intended to have had an Estate for Life in the Lands in question he would also have so expressed it Resp The intention will not controul the operation of Law his main intent was to settle the Lands upon his younger Children this the Law serves but not his secondary intentions If a Man Covenants to stand seized to the Use of himself for Life without impeachment of Wast and afterwards to the Use of the Heirs Male of his Body the Law supervenes his intention and makes him to be Tenant in Tail And in our Case there was a necessity to limit the other Lands to himself for Life because there was another Estate to intervene the Estate for Life and the Estate Tail The Reason given by my Lord Coke in Fenwick and Mitfords Case is plain enough and it appears that he was of that Opinion afterwards by the Report of Pannel and Lanes Case 13 Jac. in Rolls Rep. 1 part 238. The Case upon which I shall rely which has not been answered is my Lord Pagets Case adjudged by all the Judges of England Tho. Lord Paget Covenants in consideration of the discharge of his Funerals Payment of his Debts and Legacies out of the profits of his Land and for the advancement of his Son Brother and others of his Blood that he and his Heirs would stand seized of divers Mannors to the Use of T.F. one of the Covenantees for the Life of my Lord Paget and after his Death to the Use of C. Paget for the term of 24 years and then to the Use of W. Paget his Son in Tail with Remainders in over and afterwards the Lord Paget was aâ—â—â—nted of Treason And it was adjudged that the Lord Paget himself had an Estate for his Life for the Remainder being limited after his Death the Estate cannot pass out of him during his Life and there in Case of a Covenant to stand seized he himself hath an Estate for Life And this is not because the Estate returns as my Brother Twisden has said but because the Estate was never out of him and cannot return either from the Heir or the Covenantee otherwise where should it be during the Life of the Lord Paget who was attainted the Book is that it was never out of him but was turn'd into an Estate for Life So that now it is all one as if he had Covenanted to stand seized to the Use of his eldest Son after his Death And the question is What Estate he has during his Life It is adjudged that he has an Estate for Life for if there had been a Contingent Fee simple in the Lord Paget his Heir could never have had an Amoveas manus
much for every Pound breach is a good Prescription to bind the Tenants but naught as to Strangers because as to the Tenants it might have a good beginning by way of Reservation but as to a Stranger it could have no Lawful beginning by way of Grant or Reservation or any way that can be imagined Now if we examine the Prescription in the Case in Question by these Rules we shall find First That the Thing prescribed for does not agree in the nature and quality nor is applicable to the Thing to which it is annexed The Thing prescribed for is an entire determinate Interest and the Thing to which it is annexed is several Estates that have no relation one to another the Usage of one can have no relation to the Usage of another I would put this Case In an Action of Trespass the Defendant Iustifies for Estovers certain or Pasture certain in this Mannor and that he is seised of a Messuage c. in Fee and that J. S. is seised of another Messuage c. in Fee and that he and J. S. and all they whose Estates they have in the said two Messuages have had ten Load of Wood c. or Feeding for 500 Beasts Or if two Lords of several Mannors in Fee joyn in prescribing for a certain Rent under Favour it were absurd and never was known or allowed for the Things to which c. being several the Usage of necessity must be several and the Prescriptions also must be several As for Example For one of them to prescribe for a Moiety c. The Reason why a man cannot prescribe to have Estovers of Wood to Land is because there can be no Usage to annex it for it cannot be used with it and in all Cases Prescription follows the nature of the Usage and therefore in the Case at Bar the Usage being several and the Estates several the Prescription ought to be several also It is impossible to raise such an Interest by a Grant at this day for if such a Grant were now made either the Grantees would be Joyntenants of this Interest and then there would be a Survivorship or else they would be Tenants in Common of it and their several Interests might be annexed to their several Estates by Purparties or Apportionment And so it would be in the nature of several Grants and there must be to several Prescriptions several Men that have had Land time out of mind yet cannot joyn in making Title but must make it severally As for Example If there be Three one of them must say That his Father was seised of a Third part that discended to him and so make a Title against a Stranger tho' there be a joynt Possession And if he be to make a Title against his Companions he may say That he and all those whose Estates they have in the other Two parts they cannot say That their three Fathers were seised of the Lands and shew the several Discents nor That they Two and all whose Estates they have in Two parts in Three to be divided have held in Common For the Title of the one concerns not the other they are upon Lines and Discents and Prescription is making of a Title as was said before and the Law is as strict in it or rather more strict than in making of a Title to Land Therefore several Men that have several Estates and no Relation one to another cannot joyn in making a Prescription for the Prescription of one does not concern the other Rastal's Entries 622. d. en Trespass c. Two Commoners to avoid prolixity and repetition do as near as they can joyn in a Prescription but being considered it is a several Prescription as much as if they had Iustified severally My Lord Coke's Rule on Littleton 197. a. That Tenants in Common may joyn in an Assize for an entire thing as an Hawk or an Horse for the necessity of the case It may be objected that there is the same necessity here I Answer That tho' in that case they joyn in the Demand and the Action yet they must make their Titles severally as they are they must Sue as they may Recover which cannot be half an Hawk or half an Horse but when they come to make their Titles in Pleading they must set them forth distinct there the possession is joynt and cannot be severed but in our case the possessions are several and one hath nothing to do with the other and the thing claimed is in its nature severable either by Moieties Purparties or Apportionment It may be Objected against my Rule That a Prescription must be as a Grant may at this day be made that 11 H. 7. 13 14. a man may prescribe against a great many as Tenants or a Commonalty without naming a party certain and such a Prescription cannot spring out of one Grant no more than this For if a great many may joyn in one Grant yet it is so many several Grants as to their several Interests and so it may be said there ought to be so many several Prescriptions I Answer The Rules are not alike For if 100 Men being a Generality as all the Tenants of the Mannor of Dale make the same king of Grant to J.S. or there be the same kind of Reservation and the thing claimed be annexable to the Estate of J. S. these all unite in the Grantee and his Estate and the Estate continues entire Time knits and unites it and an entire Prescription will serve being it will serve the Case But when a Grant is made from one to many that have several Estates their Estates are carried and discended several ways and Time and Usage makes them distinct and several and cannot be served by the same Prescription But the Prescription at Bar is worse upon my Second Reason for Prescription and Custom are of contrary Natures and incompatible and cannot give being to the same thing Prescription is a Title presuming a Grant to the Freeholders and a Lawful beginning The Copyholders claim by Custom because they are but Tenants at Will and not capable of a Grant their this must be raised from the Lord by parcels ' which being an Entire thing it cannot be For which soever should be raised first the rest must be left in the Lord who cannot have a Right of sole Pasturage in his own Soyl distinct from the Soyl. It may be Objected here That Custom and Prescription are not of such contrary Natures as I make them for in Day and Savage's Case in Hob. 85. the Pleadings were as a Custom of the City and the Court Adjudged it to be a Prescription which shews that Custom and Prescription differ not so much in the nature of the Thing as in the manner of the Pleading For Answer I need but observe the Nature of that Case The Officers of the City of London Iustified for a Duty of Wharfage claimed by the City The Plaintiff sets forth in his Replication That within
in an Inferiour Court for want of infra Jurisdictionem Curiae 2 For variance between the Count and Plaint 6 But it lies not for some Omissions 5 A Writ of Error is a Supersedeas to an Execution 30. Yet the Judgment remains a Record 34 Exception 353 355 A Writ of Error returnable ad proximum Parliamentum not good Secus if to the day of Prorogation 31 266 No Writ of Error lies upon a Conviction before a Justice of Peace 33 In a Writ of Error if the Defendant dies the Writ is not abated Secus if the Plaintiff dies 34 Lies not to reverse a Judgment in a Qui tam nor upon the Statute de Scandalis Magnatis 49 What Records to be returned upon a Writ of Error 96 97 Where it lies upon a Judgment in a Scire facias and where not 168 Error in fact not assignable in the Exchequer Chamber 207 A Writ of Error that bears Teste before the Judgment good to remove the Record if Judgment be given before the Return 255 Escape See Baron and Feme VVhere a Prisoner Escapes by permission of the Sheriff he may be taken again by the Party Plaintiff 4 Debt against the Sheriff for a Voluntary Escape the Sheriff pleads that he took him again upon fresh Suit Good 211 217 Against the VVarden of the Fleet 269 The Lessor of the Custody of a Prison answerable for an Escape where his Lessee is insufficient 314 Escrow See Pleading Evidence See Statutes The party suffering admitted to give Evidence for the King to detect a Fraud 49 Exception See Feoffment Excommunication In Excommunication ipso facto no necessity of any Sentence of Excommunication 146 Excommunication pleaded to an Action per Literas testamentarias Good 222 How discharged where the Capias is not inroled according to the Statute 338 Execution Upon an Elegit the Sheriff ought to deliver Possession by Metes and Bounds or otherwise it may be quasht 259 Executor See Abatement Costs Return Of Infant Executors where to Sue by Guardian 40 54. VVhere by Attorney 40 102 103 If a Man names himself in an Action Executor or Administrator and it appears the Cause of Action was in his own right it shall be well enough and the calling himself Executor is but surplusage 119 VVhere the Executors promise in relation to the Testators Debt shall make the Debt his own 120 268 VVhere Interest is due for a Debt partly in the Testators life time and partly since and one Action brought and Judgment given for the whole this is manifestly Erroneous 199 VVhere chargeable in the Debet detinet and where in the detinet only 271 321 355 Cannot assume the Executorship for part and refuse for part 271 Debt doth not lie against the Executor of an Executor upon a Surmise of a Devastavit of the first Executor 292 Of the Executors renouncing 303 cannot refuse after Oath 335 Of Executor de son tort 349 VVhat Acts an Executor may do before Probat 370 Exposition of Words Obstrupabat 4 Or 62 148 Pair of Curtains and Vallence 71 106 Ad sequendum 74 Vt 73 74 Aliter vel alio modo 92 Mutuasset and mutuatus esset 109 Aromatarij 142 Centena 211 Issue 229 Land 260 Crates 304 Gubernatio Regimen 324 Exilium 326 Vestura terrae 393 Extinguishment Where two Closes are in the same Possession the Duty of Fencing is Extinguished and shall not Revive thô the Closes come after into several hands 97 F. False Latine DE sex bovibus instead of bobus no sufficient Cause to Arrest Judgment 17 Feoffment A Man makes a Feoffment of a Mannor excepting two Closes for the Life of the Feoffor only The two Closes descend to the Heir 106 Fine The Delivery of a Declaration in Ejectment upon the Lands is no Entry or Claim to avoid a Fine 42. So where an Action is brought and discontinued 45 A Fine cannot bar any Interest which was divested at the time of the Fine 56 Whether a Fine and Non-Claim bars the Interest of a Lessee in Trust 80 No Bar to a Mortgage 82 A Parish may contain many Vills and if a Fine may be levied of Lands in the Parish it carries whatsoever is in any of those Vills 170 Lessee for years makes a Feoffment and levies a Fine the Lessor shall have five years to Claim after the Term expired 241 Forcible Entry In an Indictment of Forcible Entry it must appear that the place was the Freehold of the party at the time of the Entry with force because upon the finding a Restitution is to be awarded 23 Foreign Attachment See London Of Foreign Attachments by Custom how to be pleaded 236 G. Gaming See Statutes Guardian See Baron and Feme Executor Grant See Hundred GRant without Consideration hinders not the arising of a Contingent use 189 In Prescriptions or Usage time beyond Memory the Law presumes a Grant at first and the Grant lost 387. And therefore nothing can be prescribed for that cannot at this day be raised by Grant ibid. Of the Kings Grant 408 409 A Grant to a Town to be a County and no Grant of having a Sheriff void 407 H. Habeas Corpus See Statutes THo' the Return be Filed yet the Court may remand the Prisoner to the same Prison and not to the Marshalsey 330 346 Whether it lies to remove a Prisoner in Ireland 357 Half Blood The Sister of the Half Blood shall come in for distribution upon the Stat. 22 23 Car. 2. chap. 10. 316 317 323 Half Blood no Impediment to Administration 424 Harriot Where a Lease is made to commence on the Determination of another if the new Lessee dyes before his Term Commences whether a Harriot shall be due 91 Heir An implied Estate of Land shall not pass in a Will for an Heir shall not be defeated but upon a necessary Implication 323 376 A Man cannot by Conveyance at Common Law by Limitation of Uses or Devise make his right Heir a Purchaser 372 379 Yet Heirs of the Body of his second Wife having a Son by the first is a good name of Purchase 381 Hospital Mastership of a Hospital not grantable in Reversion 151 Hundred A Hundred what it is and the Bayliff of a Hundred 403 The Grant of a Hundred good notwithstanding the Statutes 2 E. 3. 12. 14 E. 3. 9. 410 412. I. Imprisonment Where an Offence is Fineable if the Fine be tenderd there ought to be no Imprisonment 116 Indictment Where a Statute makes an Offence at Common Law more penal yet the Conclusion of the Indictment is not contra formam Statuti 13 A Man cannot be Indicted for saying of a Justice of Peace he understands not the Statutes of Excise but may be bound to Good Behoviour 10 16 Indictment of Forgery upon the Stat. 5 El. 4. where good and where not 23 24 Strictness of words not required in in an Order of Sessions thô it ought in an Indictment 37 For Manslaughter not quasht upon Motion 110.
that he should suffer a Recovery his Term is not drowned 195 Tenant for Life with power to make a Jointure suffers a Recovery the Power is extinguished 226 227 Good tho' a Stranger that hath nothing in the Land be made Tenant to the Praecipe for a Recovery being a Common Assurance is to be favourably expounded 358 Whether a Recovery can be suffered where the Tail is expectant upon an Estate for Life the Tenant for Life not being made Tenant to the Praecipe 360 Release See Obligation Of all Demands its effect 314 Remainder Contingent Remainder by what Act destroyed 188 306 334 345 No Cross Remanders upon Construction in a Deed tho' sometimes in a Will 224 Rent Difference between a Rent and a Sum in Gross 99 Lease by Tenant in Fee and Rent reserved to the Lessor Executors Administrators and Assigns the words Executors and Administrators void 162 A Rent may be reserved by Contract without Deed 242 Where Rent shall be suspended and where apportioned by the Lessors Entry 276 277 Reputation Lands repurted parcel of a Mannor shall pass in a Recovery under the Word Appurtenances 52 Retorn Sheriff amerced for retorning Non est inventus on the Writ brought against his Bayliff 12 24 Sheriff retorns that Goods came to the Executors hands elongavit vendidit disposuit ad proprium usum suum convertit this tantamounts to quod devastavit 20 221 Sheriff retorns upon a Fi. fa. that he had taken Goods and that they were rescued from him not good 21 Action against Sheriff for a false Retorn of Cepi Corpus 85 Revocation What shall be a good Revocation upon a Power reserved 278 infra S. Scandal See Action upon the Case for Slander Scandalum Magnatum I do not know but my Lord of P. sent G. to take my Purse Action lies 59 Difference between an Action on the Statute of Scandalum Magnatum and a Common Action of Slander the Words in one Case shall be taken in mitiori sensu and in the other in the worst sense against the Speaker that the Honour of Great Persons may be preserved 60 Sewers Commissioners of Sewers and their Proceedings subject to the Jurisdiction of the King's Bench notwithstanding the Clause in Statute 13 Eliz. cap. 9. 67 Sheriff Sheriff may bring Trover for Goods taken in Execution and after taken away by the Defendant in the first Action 52 Soldiers Every Officer and Soldier as liable to be arrested as a Tradesman or any other person whatsoever 251 A Captain and Serjeant committed to Newgate for a great Misdemeaner in rescuing a Soldier ibid. Statutes When a Statute makes an Offence the King may punish it by Indictment but an Information will not lie when a Statute doth barely prohibit a thing 63 31 Ed. 1. Statute of Winton in an Action upon this Statute what taking shall be sufficient to discharge the Hundred 118 235 4 Ed. 3. cap. 7. Action lies for Executors upon this Statute for cutting and carrying way Corn 187. This Statute hath been always expounded largely ibid. 3 H. 7. cap. 2. A Wife forcibly married contrary to this Statute shall be admitted to give Evidence against her Husband 244 5 Eliz. cap. 4. For using a Trade not being Apprentice thereto 8 51 142 326 346 364. This Statute in relation to Apprentices expounded 174 31 Eliz. cap. 7. Of Cottages no Offence against this Statute to erect a Cottage if no body inhabits therein 107 43 Eliz. cap. 2. Poor By this Statute that enables Justices of Peace to tax a Neighbouring Parish the Justices may tax any of the Inhabitants and not the whole Parish 350 21 Jac. cap. 26. Of Felony to Personate 301 12 Car. 2. Of Ministers A good Act being made by King Lords and Commons and any defects in the Circumstances of calling them together ought not to be pried into 15 This Act extends only to Benefices with Cure ibid. 14 Car. 2. cap. 10. 16 Car. 2. cap. 3. Harth-mony Smiths Forges shall pay 191 192. So empty Houses 312 14 Car. 2. cap. 33. Of Printing Seditious Books 316. 16 Car. 2. cap. 7. Of Gaming Articles for above 100 l at a Horse Race within this Statute 253 254 17 Car. 2 cap. 2. Of Non Con-Ministers explained 328 29 Car. 2. Of Frauds and Perjuries No Promise made before the 24th of June within this Act 330. What Contracts within ths Act 361 31 Car. 2. Habeas Corpus Prayer must be made by Council wiihin the first Week after the beginning of the Term 346 T. Tail THO' a Term in gross cannot be entail'd yet where man hath a Term in point of Interest and at the same time the Trust of the Inheritance here he may entail the Trust of the Term to wait upon the Inheritance 194 What Words create an Estate Tail and what in Remainder contingent or vested 215 230 231 Estates Tail how forfeitable for Treason 299 infra A Devise to a Man and the Heirs Males of his Body with a proviso if he attempts to alien the Estate to cease the Condition void 321 322 A Limitation in Tail how it operates 378 Tender Tender and refusal is as much as payment 167 Tender where not good 252 261 Teste Where the Teste of a Writ before it was taken out is notwithstanding good 362 Tythes May be paid of a Warren by Custom 5. So of Doves and Fish ibid. Whether an Executor may bring Debt upon the Statute 2 E. 6. for Tythes due to the Testator 30 31 Where and what Modus shall bar the Recovery of Tythes in specie 32 A Prescription cannot be suggested time out of mind to pay a Modus for Tythe Hops since they were not known in England till Queen Elizabeth's time 61 Tythes of VVood tho' not Fewel payable unless exprest to be burnt in a House for the maintenance of Husbandry 75 Treason In Coyning and Clipping the Judgment 254 For raising a Rebellion in Carolina 349 Trespass See Pleading Quare Clausum fregit and threw down his Fences what Plea in Justification good 221 Continuando in Trespass where good and where not 363 Trust See Tayl. A Use in former time the same with what a Trust is now 130 Where a Trust for Life Remainder over with Power of Revocation is forfeitable and where not 128 infra Whether a Trustee is compellable to produce Writings or the Key of the Box wherein they are against the Interest of the Party for whom he is Trustee 197 Tryal See Venue What shall be Cause for new Tryal what not 30 Justices of Assize may try Informations tho' commenced before the Justices of a former Assizes 85 181 V. Venue WHere a Deed is forged at S. and given in Evidence at D. from whence the Venue ought to come in an Information thereupon 17 A Breach of Covenant assigned in Barwick the Venue shall arise from the next place in Northumberland 58 Judgment by Nihil dicit reverst after a Writ of Enquiry executed because no
the Avowant mode forma as he hath set forth 211 The Avowant demurs generally The Plaintiff joyns 212 4. The Plaintiffs declare against three Defendants for taking and detaining their Cattel 224 One of the Defendants avows the other two make Conizance as his Bayliffs The Avowant says That the Father being seized in Fee of the third part of a certain Messuage c. of which the Locus in quo was parcel demised the same for 99 years if A. B. and C. or either of them should so long live reserving Rent That the Lessee entred That the Father being seized of the Reversion died seized and a discent to the Avowant as Heir at Law who distrained for Rent arrear 225 Super praedictam tertiam partem c. And avers That C. is still living In Bar to the Avowry the Plaintiffs Confess the seisin of the Father of one third and that J. S. was seized of the other two parts who licensed the Plaintiffs to put in their Cattel upon the Locus in quo which they did 226 The Defendants demur to the Bar. The Plaintiffs joyn in Demurrer 227 S. Scire facias 1. AGainst a Ter-tenant 101 The Judgment recited in the Writ to the Sheriffs of London The Plaintiff obtulit se at the Return The Sheriffs Return That there were no Tenants of any of the Defendants Lands at the time of the Judgment or at any time since quibus Scire fac ' possunt 101 A Testatum Scire fac ' to the Sheriff of Norfolk The Plaintiff and a Ter-tenant appear at the Return The Sheriff Returns That he had summon'd P. S. who was then Tenant of Lands which were the Defendants at the time of the Judgment and that there are no other Tenants to whom c. The Ter-tenant salvis sibi omnibus exceptionibus c. Imparls The Plaint revived continued and adjourn'd by Act of Parliament 3 Febr. 1. W. M. A further Imparlance The Plaintiff prays Execution 102 The Ter-tenant pleads in Abatement of the Writ and alledges that there are other Tenants of other Lands in Surrey belonging to the Defendant at the time of the Judgment and prays Judgment and that the Writ may be quasht The Plaintiff demurs to the Plea The Ter tenant joyns in demurrer 103 Sheriff Action against him Vid. Actions on the Case 3. Plea to his Bail Bond. Vid. Debt 5. Slander Vide Action on the Case 7. Special Verdict Vid. Trover 2. T Trespass 1. TRespass against the Defendant simûl-cum G. F. for taking Vi armis and Impounding his Cattel quousque finem fecit of 11 l c. contra pacem c. 90 The Defendant as to the Vi armis and contra pacem pleads Not guilty And as to the residue of the Trespass he pleads a Seizure by virtue of a Fieri facias out of the Common Pleas and the Sheriffs Warrant thereupon and that the Cattel were appraised at 11 l being the true Value and detain'd until the said Sum was paid to the Sheriffs Baily for the use of the said Sheriff pro deliberatione averiorum prout bene licuit which was the residue of the said Trespass absque hoc that he is guilty before or after the said taking 91 92 The Plaintiff demurs and assigns for Cause that the Traverse is ill as to Time and that the 11 l ought not to have been paid to the use of the Sheriff by the Law of the Land The Defendant joyns in Demurrer 93 2. Trespass for Assault Battery Wounding and Imprisonment 189 As to the Vi armis vulnerationem the Defendant pleads Not guilty and Issue thereupon At to the residue of the Trespass he pleads that he obtained Judgment against the Plaintiff in the Common Pleas in an Action of Indebitatus Assumpsit which Judgment was afterwards set aside and vacated but before it was vacated a Ca. sa was sued out thereupon directed to the Sheriff who made his Warrant to the Bayliff of the Liberty 190 The Bayliff takes the now Plaintiff thereupon and had him in Custody until he paid the Money quae sunt idem Resid ' Transgr ' Insult ' Imprisonat ' and Traverses that he is not guilty of any other Trespass c. The Plaintiff replies That the now Defendant then Plaintiff in the Judgment was an Attorney whose Duty is to enter Judgments fairly and honestly and that he in deceit of the Court entred the Judgment when he ought not to have done it 191 And that afterwards on the Examination and Consideration of the said Entry the said Judgment was by the said Court adjudged void ab initio 192 The now Defendant Plaintiff in the Judgment confesseth the Matter and saith that he appointed the Judgment to be duly Entred but by default of the Clerk it was entred irregularly Absque hoc that it was Entred by the said now Defendant falso fraudulenter in deceptionem Curiae ibid. The Plaintiff demurs The Defendant joyns 193 Trover 1. TRover brought by an Assignee of Commissioners of Bankrupts 63 The Declaration sets forth the Bankrupt to be possest of such and such Goods which came to the hands of the Defendant 63 That the Bankrupt exercised the Trade of a Vintner and became Indebted to several Persons That he departed from his Dwelling-House and became a Bankrupt That the Creditors Petition'd the Lord Chancellor The Commission sued out 64 The Commissioners find him a Bankrupt and make Assignment to the Plaintiff 65 A Conversion of the said Goods by the Defendant 66 The Defendant demurs to the Declaration The Plaintiff joyns in Demurrer 66 2. Against the Sheriffs of London and others for 225 l in Money numbred and divers Goods 156 The Defendants as to part of the Goods which they set forth in particular plead That the Plaintiffs formerly brought an Action of Trespass upon the Case in the Kings-Bench against the now Defendants for taking and carrying away the Goods now sued for 159 That upon Not guilty pleaded the Issue came to a Trial and the Jury found a Special Verdict 160 Which they recite at large That the Owner of the Goods became a Bankrupt That a Judgment was recovered against him for 1000 l and a Fieri facias issued out which being delivered to the Sheriffs of London they seized the Goods in Execution That after Seizure and before Sale a Prerogatie Process issued out against the Goods which is recited in haec verba 161 The Return of the said Process 163 The Goods taken by Inquisition inventoried appraised and sold and the Money delivered to the King's Debtor 164 A Commission of Bankrupts sued out The Commissioners assign to the Plaintiffs The Assignees possest And then they Conclude Si utrum super tota Materia the Defendants are guilty the Jurors know not if the Court shall adjudge them guilty they find for the Plaintiffs if not for the Defendants 165 After several Continuances the Loquela remaining sine die was revived and continued by Act of Parliament
was found in the Office The Countess also was alive at that time and so could not be seised into the Kings hands And as to the Statute of 7 Jacobi it is plain that it means a Naturalization by Parliament here for it appoints the Lord Chancellor or Keeper to Administer the Oaths if the Bill begin in the House of Lords and the Speaker to do it if it begin in the House of Commons And of this Opinion was Vaughan in these three last things tho' in the Principal Matter he agreed with the other two Termino Sanctae Trinitatis Anno 22 Car. II. In Communi Banco Thoms Harrison Ux ' versus Dr. Burwell IN an Action for suing in the Spiritual Court after a Prohibition sued out and delivered the Plaintiff sets forth that by an Act of Parliament made in the 32 H. 8. c. 38. it was enacted c. That from the first day c. all and every such Marriages as within this Church of England should be contracted between lawful persons as by this Act they declared all persons to be lawful that be not prohibited by Gods Law to marry such Marriages being Contracted and Solemnized in the face of the Church and consummate with Bodily Knowledge c. should be c. deemed judged and taken to be lawful good just and indissoluble notwithstanding any precontract c. and notwithstanding any Dispensation Prescription Law or other thing granted or confirmed by Act or otherwise and that no Reservation or Prohibition Gods Law except should trouble or impeach any Marriage without the Levitical Degrees and that no person of what Estate Condition or Degree whatsoever he or she be should c. be admitted to any of the Spiritual Courts within this the Kings Realm or any his Graces other Lands and Dominions to any Process Plea or Allegation contrary to this foresaid Act. And sets forth further That one Abbot had Issue Robert and Bartholomew that Robert had Issue Mary who married Robert Harrison and by him had Issue Thomas the Plaintiff that Bartholomew took to Wife Jane Brown who is now the other Plaintiff and that Bartholomew died without Issue and that then the Plaintiffs intermarried they say that he and she were free from any Marriage or Contract with any other person and the Marriage was solemnized according to the Orders and Rules of the Church and that this is a good Marriage by the Laws of God and Man and that A. B. a Notary intending to dissolve this Marriage contrary to the said Act cited the Plaintiffs before Dr. Burwell and articled against them in this manner That within the Jurisdiction c. reciting the Alliance c. and that the said T. H. took the said Jane Abbot to Wife de facto cum de jure non potuit nec debuit and so they committed Incest c. Hereupon Dr. Burwell Demurs and prays a Consultation It had been divers tunes argued at the Bâ—r and now Vaughan Chief Iustice delivered the Opinion of the Court in this manner Vaughan 'T is the pleasure of my Brothers that I deliver their Opinion in this Case and what I do deliver I do not deliver as their Opinion only but as the Opinion of all the Iudges of England for they have met together by the Kings Command several times to debate and consider of this Case and they all agree that no Consultation be granted This is a Case of great expectation and perhaps the only Case which has been solemnly resolved since the Statute of 32 H. 8. was made there are but three Cases concerning it Man's Case 1 Cro. 228. Mo. 907. Parson's Case 1 Inst 235. and Remington's Case Hob. 181. I must in the first place premise that perhaps if we the Iudges had been makers of the Law this Question had not been but we are to proceed upon the Laws as made and cannot alter them This is not a thing of our promotion and this I speak to satisfie such as might object against us This Statute was made in a time when the Popes Power was warmly pursued and Laws were then made which in the circumstances of another time would not have been made I will first give the Reasons the Iudges went upon in their Resolution and then I will also give some Reasons to satisfie People abroad for I know the Case will meet with many censures First Of the former Antiently the Kings Temporal Courts had nothing to do with the lawfulness or unlawfulness of Marriage it was wholly of Ecclesiastical Conisance the Statute de Circumspecte agatis is that the Temporal Iudges should not punish the Spiritual Courts for holding Pleas of those things quae mere sunt spiritualia viz. pro Fornicatione Adulterio hujusmodi and Sir Ed. Coke 2 Inst 488. expounding those words Et hujusmodi he says and he says very right that these are to be taken for Offences of like nature as the two Offences here particularly expressed be viz. as sollicitation of any Womens Chastity which is lesser than these and for Incest which is greater Here is an undoubted evidence that the Temporal Courts used to prohibit c. and the ancientness of that is unquestioned but it seems they did border in their Prohibitions sometimes upon things which were Spiritual which they ought not to have done There was no time but in which some Marriages were lawful and some unlawful but if a man were formerly questioned about such a matter he had no relief from the Temporal Courts By the Ancient Common Law Marriages were unlawful as far as they had names of Kindred viz. to the fourth Degree from Cousin Germans inclusively and therein it irritated the Civil Law but in the Council of Lateran under Pope Innocent the 3d it was ordained thus Sancitum est prohibitionem copulationis conjugalis quartum gradum non excedere and so it stands in all places under the Common Law at this day in Popish Countries with us it has received alteration by this Statute in this matter there is a Reason very much sticks with many viz. That the Temporal Courts are not skilled in the Laws by which this is to be judged and therefore that it is not fit that they should determine concerning it 'T is true the word Cognitio signifies both but yet there is a great difference between Skill and Cognizance But I say further That the Temporal Iudges may well enough have both for though the knowledge of the Canon Law be not adequatum subjectum to a Common Lawyer yet 't is commune subjectum There are four Statutes which have made great alteration in the Cognisance of this matter 25 H. 8. 22. 28 H. 8. c. 7. 28 H. 8. c. 16. and this of 32 H. 8. c. 38. The first indeed is repeased because it was interwoven with matter of Succession of the Crown c. which was set aside But the Second viz. 28 H. 8. cap. 7. is syllabically the same as to this purpose the words are
illam modo forma praed ' fact ' necesse non habet nec per legem terrae tenentur respondere Et hoc parat ' sunt verificare Unde pro defectu sufficien ' Narration ' ipsius Francisci in hac parte ijdem Edwardus Walterus pet ' Judicium qd ' praed ' Franciscus ab actione sua praedicta versus eos habend ' praecludatur c. Et praedictus Franciscus dic ' qd ' Joynder in Demurrer narratio praedicta materiaque in eadem content ' bon ' sufficien ' in lege existunt ad ipsum Franciscum actionem suam praedictam inde versus praed ' Edwardum Walterum habend ' manutenend ' Quam quidem materiam idem Franciscus parat ' est verficare Unde ex quo praedict ' Edwardus Walterus ad narrationem praed ' non responder ' nec materiam in ead ' content ' aliqualit ' dedixer ' idem Franciscus pet ' judicium dampna sua occasione fractionis conventionis praed ' sibi adjudicari c. Et quia Justic ' c. Morly versus Polhill IN an Action of Covenant the Plaintiff declared as Executor to George Morly late Bishop of Winchester and sets forth that Brian the Predecessor of the said Bishop had demised a Rectory and certain Lands to J. S. for 21 years who had assigned it to the Testator of the Defendant and that the Lessee covenanted with Brian and his Successors to repair the Chappel of the Church and the Barns c. and assigned a breach in the not xepairing by the Testator of the Defendant in the life of George Morly and that the Lease afterwarns expired To this the Defendant demurred for that it was pretended that the Executor of the Bishop could not bring this Action for the Covenant was with the Predecessor Bishop and his Successors and cited the Cases of Real Covenants 1 Inst 384 385. A Parcener after partition Covenants to acquit the other Parcener of a Suit and the Covenantee assigns the Assignee shall not bring Covenant But the whole Court gave Iudgment for the Plaintiff and that the Executor is here well entituled to the Action for the Breach in the Testators time Wright versus Wyvell IN an Ejectment the Plaintiff declared upon a Demise of Dorothy Hewly and upon a Special Verdict the Case appeared to be thus That Christopher Hewly was seised of the Premisses in Fee and made his Will in this manner I make my last Will in manner following As concerning my Personal Estate First I give and bequeath unto Ann Hewly my Wife the sum of Six Hundred Pounds to be paid unto William Weddall of Eastwick Esq and it 's for the full payment of the Lands lately purchased of the said Mr. Weddall by the said Christopher Hewly and is already estated in part of a Joynture to Ann my said Wife during her natural Life being of the value of Sixty Seven Pounds per annum That of Wiskow York and Malton the Lands and Tenements there amounting to the yearly value of Sixty Three Pounds in all One Hundred and Thirty Pounds which being also estated upon my said Wife it is in full of her Joynture And after this he gives several Legacies and the rest of his Personal Estate he gave to his Wife and made her Executrix Then they find that he had made no settlement of the Premisses or of any part of them upon his Wife and that the Lessor of the Plaintiff was Heir at Law to Christopher Hewly and that Ann the Wife is still living So that the sole Question was whether the Lands should pass to the Wife upon these words in the Will and divers Cases were put upon implicit Devises as that his Feoffees should stand seised to the use of J. S. has been held a good Devise to J. S. tho' there were no Feoffees 3 Leon. 167 162. Devise to his eldest Son after the death of his Wife there the Wife takes tho' nothing expresly devised to her After Arguments heard on both sides by the Opinion of Pollexfen Chief Justice Rokeby and Ventris Iudgment was given for the Plaintiff against the Opinion of Powell Here it appears indeed that the Testator took it that she had the Land but it appears he did not intend to devise any thing by the Will for he mentions that she was estated in it before and in the Cases of Implicit Devises there is no reference to any Act that should have conveyed the Land to the Devisee before but the Will there passes the Land by Construction and Implication Again This Devise is introduced with this Clause as to the disposing of my Personal Estate and throughout the Will he giveth only Personal Things Again This recital comes in as part of another Clause of an express Devise of the Six-Hundred Pounds But Powell relied upon the Case in Mo. 31. A man made a Will in this manner I have made a Lease to J. S. paying but 10 s Rent this was held a good Lease by the Will To which it was answered That the Case there was of little authority for it did not appear how that matter came in question or in what Court or in what Action and said only fuit tenus 3 Eliz. And Iudgment here was given for the Plaintiff Bowyer versus Milner IN a Formedon against several Tenants one appeared and was Essoigned and then another appeared and it was moved whether he could be Essoigned by reason of the Statute of W. 1. c. 43. which seems to be that Parceners or Ioyntenants should have but one Essoign and that they should not fourch Cut ' Contra. The Statute is to be understood of Essoigns after appearance and so is the Book of 28 Ed. 3. 18. it is said to have been the Law of the Times for Tenants to fourch before appearance and so is Co. 2. Inst 250. Hob. 8 46. The Case of Essoigns if the Tenant voucheth two one Essoign may be cast for each of them singly Vid. Stat. of Glouc. c. 6. Anonymus IN an Action of Trespass de Uxore abducta cum bonis viri to his damage of 10000 l Upon Not Guilty pleaded and a Trial at the Bar the Return of the Jury was Octab ' Trin. and the Appearance Day was die Mercurij at which day the Jury appeared but it being appointed for the keeping of a solemn Fast by the King's Proclamation the Jury was adjourned to the Day following and then the Jury and Parties being at the Bar a Plea was offered by the Defendants Counsel puis darrein continuance that the Plaintiff was Excommunicated and produced it under the Seal of the Court and begun their Plea thus Ad hunc diem viz. die Jovis prox ' post Octab ' Trin ' c. So that the Plea came too late for it should have been pleaded die Mercurij for tho' the Jury was adjourned to Thursday yet all Matters were entred as upon Wednesday So this Plea did appear upon the
redd ' unius anni mediet ' redd ' unius anni per quem talia terrae vel tenementa sic alienat ' tent ' fuer ' in Manerio praed ' nomine finis pro alienatione and lays a Custom to distrain for the said Alienation Fine and then sets forth an alienation of the said Messuage and Premisses by the said Sir John Sabin to one Walter Tyndall in fee and shews that the said Walter Tyndall made another alienation in fee to one Christopher Yates and so sets forth that there were two Fines due upon the said alienations after the rate aforesaid amounting to 18 l 7 s and 7 d ob and that he as Bayliff of the said Dean and Chapter captionem praed ' bene cognoscit in praed ' loco in quo ut in parcell ' tenement ' praed ' To this the Plaintiff demurred and it was spoken to at the Bar the last Term and likewise this Term The main thing was that the Custom as it was laid was not good for the Alienation Fine is set forth to be due upon the Alienation of any parcel of Lands or Tenements held of the said Mannor to have a year and halfs Rent by which the Lands or Tenements so aliened were held so that if the 20th part of an Acre be aliened a Fine is to be paid and that of the whole Rent for every parcel is held at the time of the alienation by the whole Rent and no apportioning thereof can be but subsequent to the Alienation and this the whole Court held an unreasonable Custom and it is set forth it could not be otherwise understood than that a Fine should be due viz. a year and halfs Rent upon the Alienation of any part of the Lands held by such Rent The Court doubted also whether the Custom was good as to the claiming an Alienation Fine upon an Alienation for Life because by that the tenure of the Lands aliened is not altered for the Reversion is still held as before by the same Tenant Judicium pro Quer ' Colley versus Helyar IN an Action of Debt for 34 l the Plaintiff declared against the Defendant an Attorney of this Court praesente hic in Cur. in propria persona sua upon a Bond of 34 l The Defendant pleads in Bar quoad quinque libras sex solid tres denar of the aforesaid 34 l that the Plaintiff post confectionem Scripti Obligat ' praedict ' scilicet vicesimo c. anno c. ê‘ quoddam Scriptum suum acquietantiae cognovisset se accepisse habuisse de praed Defendente 5 l 6 s and 3 d in part solutionis majoris summae and pleaded a frivolous Plea as to the rest of the Mony to which the Plaintiff demurred And it was argued that the Acquittance under the Plaintiffs Hand and Seal for 5 l 6 s and 3 d part of the Mony due might have been pleaded in bar of the whole and that if the Defendant here had relied upon it it would have barred the Plaintiff of the whole Vide for that matter Hollingwoth and Whetston Sty 212. Allen 65. Beaton and Forrest Note there the payment was since the Action brought and pleaded in abatement where it was said that it could not be so pleaded without an Acquittance Vide Kelw. 20. 162. 3 H. 7. 3 B. receipt of parcel pending the Writ 7 Ed. 4. 15. a. But it seems clear by the Book of Edw. 4. 207. Mo. 886. Speak versus Richards That if part be received and an Acquittance given before the Action it is a Bar only of so much but it seems the Action must be brought for the whole Dickman versus Allen. Cantabr ' ss Case brought against the Defendant for not folding his Sheep upon the Plaintiffs Land according to Custom The Colledge of St. Mary and St. Nicholas seized in Fee jâ—re Collegii ABRAHAMUS ALLEN nuê‘ de Grancester in Com' praedicto Yeom ' attach ' fuit ad respondend ' Roberto Dickman Gen ' de placito transgr ' suê‘ Casum c. Et unde idem Robertus per Robertum Drake Attorn ' suum queritur quare cum Praepositus Scholares Collegii Regalis Beatae Mariae Sancti Nicholai in Cantabr ' in Com' praed ' seisit ' fuissent de uno Capitali Messuagio cum pertinen ' in Grancester in Com' praedicto ac de centum sexaginta acris terrae arrabil ' jacen ' in Communibus Campis de Grancester praedicta cum pertinen ' in dominico suo ut de feodo in jure Collegii sui praedicti iidemque Praepositus Scholares omnes ill quorum statum ipsi habuer ' de in tenementis praed ' cum pertinen ' a tempore cujus contrarii memoria hominum non existit habuer ' habere consuever ' ê“ se Firmariis Tenentibus suis eorundem A Custom for all the Tenants to sold their Landlords Land Tenementorum cum pertinen ' libertatem Faldagii Anglicê Foldage omnium Ovium Ovibus suis ê“priis Ovibus tenen ' occupatorum ê“ tempore existen ' quorundam Messuagiorum Terrarum in Villa de Coton in Com' praed ' qui a tempore cujus contrarii memoria hominum non existit respective usi fuer ' Common of Vicinage intercÌ„oiare causa vicinagii in quibusdam Communibus Campis de Grancester praed ' cum Ovibus suis in super praed ' Messuagiis terris suis in Coton praed ' Levant and Couchant levan ' cuban ' except ' suor ' depascen ' infra Communes Campos territoria de Grancester praedicta a vicesimo quinto die Martii usque primum diem Novembris quolibet anno suê‘ praedictas centum sexaginta acras terras arabil percipiend ' From such a day to such a day faldand ' tanquam ad tenementa praedicta cum pertinenciis pertinen ' praedictisque Praeposito Scholaribus Collegii praed ' de Tenementis praedictis cum pertinen ' The Principal and Scholars demise to the Plaintiff by Indenture in forma praedicta seisit ' existen ' Praepositus Scholares postea scilicet decimo nono die Octobris Anno Domini millesimo sexcentesimo octogesimo primo apud Grancester praedictam quodam Johanne Coppleston Sacrae Theologiae Professor ' adtunc Praeposito Collegii praedicti existen ' ê‘ quandam Indenturam inter ipsos Praepositum Scholares ex una parte quendam Johannem Wittewronge Mil Barronet ' ex altera parte factam cujus alteram partem Sigillo cÌ„oi ipsorum Praepositi Scholarium signat ' idem Robertus Dickman hic in Cur ' profert cujus dat' est eisdem die anno dimiser ' ad firmam tradider ' eidem Johanni Wittewronge Tenementa praedicta cum pertinen ' Habendum habend ' occupand ' praefat ' Johanni Assign ' suis a tempore confectionis Indenturae illius usque plenum finem terminum viginti
ann ' For 21 years extunc ê“x ' sequen ' plenar ' complend ' finiend ' Virtute cujus dimissionis praedictus Johan ' in TenÌ„ta praed ' cum pertinen ' Lessee enters intravit fuit inde possessionat ' Et sic inde possessionat ' existen ' idem Johannes postea scilicet decimo die Augusti Anno Domini millesimo sexcentesimo octogesimo secundo apud Grancester praedictam dimisit ad firmam tradidit eidem Roberto Dickman Tenementa praedicta cum pertinen ' habend ' occupand ' And Demised to the Plaintiff eidem Roberto Assign ' suis a Festo Sancti Michaelis ArcÌ„hi tunc ê“x ' sequen ' usque plenum finem terminum sex annorum extunc ê“px ' sequen ' plenar ' For six years complend ' finiend ' virtute cujus dimissionis idem Robertus in crastino dicti Festi Sancti Michaelis Arch ' Anno Domini milesimo sexcentesimo octogesimo secundo supradicto in Tenementa praedicta cum pertinen ' intravit fuit inde possessionat ' The Lessee Enters usque finem expirationem ejusdem termini praedictus tamen Abrahamus praemissorum non ignarus sed machinans fraudulenter intendens ipsum Robertum minus rite praegravare ac eum de faldagio praedicto ut praefertur habend ' impedire ac de prosicuo commoditate inde totaliter deprivare diu ante finem termini praedicti ult ' mentionat ' scilicet primo die Maii Anno Regni Domini Jacobi secundi nuper Regis Angliae tertio Oves videlicet ducent ' Oves ipsius Abrahami in Communes Campos de Grancester praed ' ibidem depasturand ' The Cause of Action posuit Oves ibidem eun ' depascend ' extunc usque decimum diem Septembris tunc ê“x ' sequen ' existen ' ante finem termini praedicti ult ' mentionat ' custodivit continuavit sed Oves ill ' in aut super praedictas centum sexaginta acras terrae arrabilis ipsius Roberti vel in aut super aliquam inde parcellam minime faldavit sicut ipse debuisset nec permisit ipsum Robertum habere beneficium faldagii earun-praedicto Abrahamo duran ' eodem termino non existen ' tenen ' For not Folding his Sheep according to Custom sive occupatore aliquorum messuag ' sive terrarum in Villa de Coton praed ' de quibus tenen ' sive occupator ' inde ê“ tempore existen ' a tempore cujus contrarii memoria hominum non existit usi fuer ' intercoicÌ„are Causa vicinagii in praedictis Communibus Campis de Grancester praedict ' cum Ovibus suis praedict ' ut praefertur per quod idem Robertus ê“ficuum advantagium faldagii Ovium praedictorum super praedictas centum sexaginta acras terrae arabil ' quibus ipse gaudere debuisset ê‘ tempus illud omnino ê‘didit amisit ad dampnum ipsius Roberti quadraginta librarum inde ê“duc ' Sectam c. Per quod the Plaintiff lost the benefit of Foldage Et praedictus Abrahamus per Richardum Pyke Attorn ' suum ven ' defend ' vim injur ' quando c. Not Guilty pleaded Et dic ' qd ' ipse in nullo est culpabilis de pÌ„missis praedictis suê‘ius ei imposit ' ê“ut praedictus Robertus su ê‘ius versus eum queritur Et de hic pon ' se suê‘ Patriam Et praedictus Robertus similiter Ideo praecept ' est Vic' qd ' venire fac ' hic a die Sanct ' Trin ' in tres septimanas duodecim c. ê‘ quos c. Et qui nec c. ad recogn ' c. quia tam c. Dickman versus Allen. IN an Action upon the Case the Defendant declared That the Provost and Scholars of Kings College in Cambridge were seised in Fee in jure Collegii of a Messuage in Grancester in Cambridge and 160 Acres of Arable Land lying in the Common Fields of Grancester aforesaid and the said Provost c. and all those whose Estate they have in the Tenements aforesaid have time whereof c. for themselves their Farmers and Tenants of the said Tenements libertatem Foldagii Anglicè Foldage omnium Ovium except c. euntium depascentium infra Communes Campos Territoria de Grancester praed ' super praed ' centum sexaginta Acras Terrae ê‘cipiend ' foldand ' tanquam ad praed ' Tenement ' ê‘ertinent ' and then sets forth a Lease made by the Provost and Scholars to Sir John Witwrong of the said Messuage and 160 Acres for 20 years which said Sir John let them to the Plaintiff for six years by virtue whereof the Plaintiff entred and was possessed and the said Defendant Praemissorum non ignarus did put 200 Sheep into the Common Fields of Grancester aforesaid and there kept and depastured them for a certain time sed Oves illas in aut super praed ' centum sexaginta Acras Terrae Arab ' ipsius Quer ' vel in aut super aliquam inde parcell ' minime foldavit sicut ipse debuisset nec permisit ipsum Querentem habere beneficium faldagii earundem and shews how the Defendant was not within exception by which the Plaintiff lost the profit of the Foldage c. and laid it to his damage of 40 l The Defendant pleaded not guilty and a Verdict was for the Plaintiff And it was moved in Arrest of Iudgment that the Plaintiff had not in his Declaration set forth a sufficient Cause of Action for he saith that the Defendant had not folded his Sheep upon the 160 Acres as he ought and it is not set forth that the Custom was for the Owner of the Sheep to bring his Sheep to fold them upon the said Lands But it was objected on the Plaintiffs part that the word Foldagium did imply as much and it was the usage in Norfolk and Suffolk for the Owner of the Sheep to put his Sheep into the Lords Land and fold them there for which the Lord provided Hurdles and prepared the Fold to receive them and of this Faldagium a Fine was levied of inter al' as is reported in 1 Ed. 3. fo 2. and the usage in Norfolk and Suffolk is there mentioned And it was said in a Possessory Action 't is enough to say sicut debuit without setting forth any particular Custom or Prescription And Dent and Olivers Case was cited 2 Cro. 122. where an Action was brought for disturbing of him in taking of Toll ad Feriam ipsius le Plaintiff spectan ' and it was moved after Verdict that he made no Title by Prescription or Custom to the Toll and it was held by the Court to be sufficient in a possessory Action to say ad Feriam suam spectant ' So also in an Action for stopping of a way belonging to his House without setting forth any Prescription between St. John and Moody a
the putting them to Sue severally as they must do at Law But here there is but part of them that Sue and then they appear to be Officers in the Ship that Sue and so not to have this Priviledge of the Common Seamen to Sue for it was alledged that this practice had been obtained but of late and in favour to them and here it appears that the Contract for the Wages was joynt with the Owners and they have sued but two of them and so they shall be charged with the whole But the Court denied the Prohibition for they have been ever alowed to proceed for Marriners Wages and tho' the Plaintiffs have an employment in the Ship as Purfer Boatswain or the like they are Marriners as well as others and may sue in the Admiral Court for their Wages and they having Iurisdiction shall proceed in their own way tho' different from our Law as to the joyning of all the Plaintiffs or Defendants and if the Proceeding be not according to their Law the Remedy lies there Note It was said by one of the Admiralty that tho' the Suit be against some of the Owners the course there is not to charge them with the whole but according to their proportionable parts Adams versus Cross IN a Replevin against Cross and two others for taking of divers Goods at Ware in quodam loco vocat ' a Messuage there The Defendants made Conusance as Bayliffs of Jane Cross and they say that before the Caption she was seised in her Demesn as a Fee at the Will of the Lord of the Mannor according to the Custom of the Mannor of and in the aforesaid Messuage which said Messuage is and time out of mind hath been parcel of the said Mannor and demised and demisable by Copy of Court Roll c. and being so seised 24 June 1687. she demised the said Messuage to the said Adams from thenceforth at Will reserving for so long time as the said Adams should hold it the yearly Rent of 8 l by equal Quarterly payments By virtue of which Demise the said Adams entred and was and yet is possessed and for 14 l being a Year and three Quarters Rent ending at the Feast of the Nativity of St. John Baptist last past they as Bayliffs to the said Jane distrained the said Goods being in the House c. To this Avowry the Plaintiff pleaded an insufficient and frivolous Bar and now took Exceptions to the Avowry for that the said Jane Cross is therein set forth to have been seised in Fee of the said Messuage at the Will of the Lord according to the Custom of the Mannor and sheweth no admission from the Lord whereas a Copyholder cannot plead his Estate without setting forth an Admission or Grant from the Lord 4 Co. 22. b. But the Court resolved in this Case there need not be shewn any Admittance for the Title did not come in question If one pleads a particular Estate for life or years generally the commencement of it is to be shewn but if a Lessee for years Let for a lesser Term reserving a Rent in an Action of Debt for the Rent he may set forth that at the time of the Lease he was possessed of the Land ê“ termino diversorum annorum adtunc adhuc ventur ' and being so possessed demised to the Defendant c. without shewing the beginning of his Term and how derived for 't is but an inducement to the Action And Judgment was given for the Avowant Clarke versus Tucket IN an Action of Trespass for entring of his House and taking of four Pewter Dishes of the Plaintiffs The Defendant pleaded the Letters Patents of Edward the 4th whereby the Company of Taylors in the City of Exeter were Incorporated and by the said Letters Patents they were to keep a Feast every year upon the Feast-day of St. John the Baptist in some place of the City belonging to them and there to make Orders and By-Laws c. And that the said Corporation at a Meeting held the 20th of March in the 21st year of the Reign of the late King Charles the Second did make an Ordinance or By-Law That if any person being Master or one of the Chief Wardens of the Corporation aforesaid at any of their Assemblies should reproach or revile the Master or any of his Brethren or any of the Common Council of the Corporation he should forfeit 6 s and 8 d And if any other person or persons of the said Bodies should revile or use any unhandsom Speech of the Master Wardens or any of the said Council he should forfeit 3 s and 4 d the said Fines to be levied by Distress upon a Warrant under the Corporation Seal and by sale of the Offenders Goods after Four days Notice given to the Fine so set forth and an Allowance of the By-Law by the Justices of Assize according to the Statute of Henry the 7th And further saith That the Plaintiff being a Member of the said Corporation and having Notice of the said By-Law did at an Assembly of the said Master and Wardens in the Common Hall say of the said Master and Wardens in the said Corporation these words viz. The Masters ipsos Magistrum Custod ' innuendo are all a Company of Pickpocket Rogues and divers other very scurrilous and reproachful Words were set forth to have been there spoken of the said Master and Wardens by the Plaintiff whereby the Plaintiff forfeited 3 s and 4 d by the said By-Law which was demanded of him and by him neglected to be paid by the space of six Days Whereupon the said Master made his Warrant directed to the Defendant commanding him to Levy the said 3 s and 4 d by distress and sale of the Goods of the Plaintiff And the Defendant by virtue of the said Warrant did enter into the Plaintiffs House being then open and took the Goods in the Declaration mentioned Nomine districtionis prout ei bene licuit And to this Plea the Plaintiff demurred and Judgment was given for the Plaintiff For a Corporation cannot make a By-Law to have a Forfeiture levied by the sale of Goods 8 Co. 127. nor for Forfeiture of Goods And here tho' the Defendant only Distrained neither is the Defendant charged with selling the Goods in the Declaration yet the By-Law being void as to the selling is void in toto and no Justification can be upon it It was also said at the Bar That the Distress was excessive to distrain so many Dishes for 3 s and 4 d Indeed a man cannot sever a Distress and therefore in some cases a Distress of great value as a Cart and Horses may be taken for a small matter because not severable but here he might have taken some of the Dishes But the Court did not regard that Exception because it did not appear of what value the Dishes were Again it was said That they ought to have made the By-Law upon St. John Baptists Day To
part yet notwithstanding the Estate should continue in him The words of my Lord Coke 1 Inst 217. a are That it cannot stand with any Reason that a Freehold should remain in a man against his own Livery when there is a person able to take it There needs only a Capacity to take his Will to take is intended Why should it not seem as unreasonable that the Estate should remain in Simon Leach against his own Deed of Surrender For in case of a Surrender a Deed and sometimes Words without a Deed are as effectual as a Livery in case of a Feoffment Thirdly The third and principal Reason as I take it why the Law will not suffer the Operation of a Conveyance to be in suspence and to expect the Agreement of the party to whom 't was made is to prevent the Vncertainty of the Freehold This I take to be the great Reason why a Freehold cannot be granted in futuro because that it would be very hard and inconvenient that a man should be driven to bring his Praecipe or Real Action first against the Grantor and after he had proceeded in it a considerable time it should abate by the transferring the Freehold to a Stranger by reason of his Agrement to some Conveyance made before the Writ brought for otherwise there is nothing in the nature of the thing against Conveying a Freehold in futuro for a Rent de novo may be so granted because that being newly Created there can be no precedent Right to bring any Real Action for it Palmer 29 30. Now in this Case suppose a Praecipe had been brought against Simon Leach this should have proceeded and he could not have pleaded in Abatement till Sir Simon Leach ha assented and after a long progress in the Suit he might have pleaded that Sir Simon Leach assented puis darrein continuance and defeated all So that the same Inconvenience as to the bringing of Real Actions holds in Surrenders as in other Conveyances And to shew that it is not a slight matter but what the Law much considers and is very careful to have the Freehold fixed and will never suffer it to be in abeyance or under such uncertainty as a Stranger that demands Right should not know where to fix his Action A multitude of Cases might be cited but I will cite only a Case put 1 H. 6. 2. a. because it seems something of a singular nature Lord and Villain Mortgagor and Mortgagee may be both made Tenants But it will be said here that if a Praecipe had been brought against Sir Simon Leach might not he have pleaded his Disagreement and so abated the Writ of Nontenure 'T is true but that Inconvenience had been no more than in all other Cases a Plea of Nontenure and it must have abated immediately for he could not have abated it by any dissent after he had answered to the Writ Whereas I have shewn it in the other Case it may be after a long progress in the Suit Again It 's very improbable that he should dissent whereas on the other side an Assent is the likeliest thing in the world so the mischief to the Demandant is not near so great nor the hundredth part so probable Now I come to consider those Inconveniences that have been urged that would ensue if a Surrender should work immediately It has been said That a Tenant for Life might make such Deed of Surrender and continue in possession and suffer a Recovery and this might destroy a great many Recoveries and overthrow Marriage Settlements and defeat Charges and Securities upon his Estate after such Deed of Surrender These and a great many more such like Mischiefs may be instanced in Surrenders but they hold no less in any other Conveyance whereby a man may as has been shewed before divest himself of the Estate and yet continue the Possession and in this Case the Assent of the Surrendree tho' he doth not enter would as it is agreed of all hands vest the Estate in him Hutton 95. Br. tit Surrender 50. tho' he cannot have Trespass before Entry and that Assent might be kept as private and let in all the Mischiefs before mentioned as if no such Assent were necessary And this I think sufficient to Answer to the Inconveniences objected on that side Now let us see what Inconveniences and odd Consequences would follow in case a Surrender could not operate till the express Assent of the Surrendree then no Surrender could be to an Infant at least when under the age of Discretion for if it be a necessary Circumstance it cannot be dispensed with no more than Livery or Attornment So tho' an Infant of a year Old is capable to take an Estate because for his benefit he could not take a particular Estate upon which he had a Reversion immediately expectant because it must enure by Surrender If there be Joyntenants in Reversion a Surrender to one of them enures to both 1 Inst 192 214. a. so there as to one Moiety it operates without Assent or Notice Suppose Tenant for Life should make Livery upon a Grant of his Estate to him in Reversion and two others and the Livery is made to the other two in the absence and without the Notice of him in Reversion should the Livery not work immediately for a Third part of the Estate And if it doth it must enure as a Surrender for a Third part So is Bro. tit Surrender and 3 Co. 76. If Tenant for Life should by Lease and Release convey the Lands held by him for Life together with other Lands to him in Reversion who knows nothing of the Sealing of the Deed should this pass the other Lands presently and the Lands held for Life not till after an express Assent because as to those Lands it must work as a Surrender Plainly an express Assent is not necessary For if the Grantee enters this is sufficient I come in the last place to Answer those Arguments that have been made from the manner of putting the Case of Surrenders in the Book and the Form of pleading Surrenders Co. 1 Inst 337. b. First A Surrender is a yielding up of the Estate which drowns by mutual Agreement between them Tenant for Life by Agreement of him in Reversion surrenders to him he hath a Freehold before he enters And so Perkins in putting the Case of a Surrender mentions an Agreement and divers other Books have been cited to the same purpose To all which I Answer No doubt but an Agreement is necessary But the Question is Whether an Agreement is not intended where a Deed of Surrender is made in the absence of him in the Reversion whether the Law shall not suppose an Assent till a Disagreement appears Indeed if he were present ' he must agree or disagree immediately and so 't is in all other Conveyances The Cases put in Perkins Sect. 607 608 609. are all of Surrenders made to the Lessor in person for thus he puts
Mesuages Lands and Premisses And to the intent that the Contingent Remainder by the said Will limited to the Heirs Males and Females of the Body of the said Robert Durdant might be extinguished and destroyed he the said John Higden by the appointment of the said Robert Durdant did surrender his Estate in the Premisses to the said Gideon Durdant and by the said Deed it was Covenanted That the said Robert Durdant John Higden and Gideon Durdant should levy a Fine of the Premisses which should be to the use of the said John Higden and his Heirs They find that a Fine was levied accordingly in Easter Term 15 Car. 2. They find That Robert Durdant died on the 19th of August 20 Car. 2. and that John Higden after in 20 Car. 2. upon a valuable Consideration in money enfeoffed John Burchet of the Premisses and that the said Burchet died the 1st day of October in the same year and that the Premisses from him came to the Defendant Burchet who entred into the Premisses and became seised prout lex postulat And they find That Robert Durdant as well at the time of the said Will making as at the death of the said Henry Wicks had an only Son called George Durdant who was also Godson to the Testator and that the said George Durdant died and that William Durdant Lessor of the Plaintiff was his Son and Heir and entred and made the Demise prout c. si super totam materiam c. Vpon his Special Verdict Iudgment was given in the Kings-Bench for the Plaintiff And the Court here afterwards having heard the Case thrice Argued did affirm the Iudgment And the first Point spoken to was Whether the Estate did not execute in Robert Durdant by the Statute of 27 H. 8. of Uses For if so he would be seised of an Estate tail and then Burchet would have a good Title It is clear Lands may be Devised to the use of another as in Popham 4. 'T is true a Devise implies a Consideration and will lodge the Estate in the Devisee if no Vse be limited upon it Here it is Devised to John Higden and his Heirs upon trust and confidence that he should permit and suffer c. The word Trust is proper for the Limitation of an Use and the Estate shall Execute unless it be first limited to the use of a man and his Heirs in Trust for another there the Intention is that it should be only a Trust and here Robert Durdant is restrained only from doing waste which shews that he intended he should take an Estate or else he could not commit waste But Lands may be Devised to an Use tho' the Statute of Wills is since the Statute of Uses Mo. 107. 1 Cro. 343. The Court over-ruled this Point and Resolved it to be only a Trust in Robert Durdant for the words are That Higden should permit him to take the profits which shews that the Estate was to remain in Higden And for the restraint of waste it was proper for Higden was to permit Robert Durdant to have the possession but the Testator would not have him to commit waste or spoil The second and principal Point was Whether the Remainder to the Heirs of Robert Durdant now living did vest in George Durdant or was a Contingent Remainder It was much urged That one could not take in the Life of his Ancestor by the name of Heir for nemo est haeres viventis in the 1 Co. Archer's Case A Devise to Robert Remainder to the next heir Male of Robert and to the heirs Males of the Body of that heir Male this is Resolved to be a Contingent Remainder during the Life of Robert and it was said in that Case that the next heir Male is as much a designation of a person as an Heir now living He that will take by purchase by the name of Heir must be a compleat Heir to all intents Co. Littl. 24. b. 2 Leon 70. Chaloner and Bowyer 's Case upon a Devise But it was Resolved that this was a Remainder vested in George Durdant for the Remainder being limited to the Heirs of the Body of Robert Durdant now living and George being found to be then the only Son it was a sufficient designation of the person and as much as if it had been said to his Heir apparent and such an one is called Heir sometimes in proceedings in Law where the greatest strictness of phrase is used as in Writs of Ravishment of Ward Quare filium haeredem rapuit 2 Inst 439. Westm 2. cap. 35. 25 Ed. 3. the Statute of Treasons Treason to kill the Heir of the King The third Point was Whether George Durdant took an Estate Tail or only an Estate for Life for it was Objected that if the words Heirs of the Body were taken for the description only of the person who should take then he must take only for Life But the Court held that they would make an Estate Tail for Heirs is nomen collectivum and is sometimes so taken when 't is only Heir in the Singular Number A Devise to one for life Remainder to the heir Males of his Body for ever this is an Estate Tail in the Devisee Pawsey and Lowther in Rol. Abr. 2. Part 253. But in case the first words viz. Heirs of the Body now living would carry but an Estate for Life to George Durdant yet the subsequent words would make an Entail in him viz. and to such other Heirs Male and Female as he should hereafter happen to have of his Body this would clearly vest an Entail in George he being Heir of the Body of Robert and surviving Robert So the Judgment was affirmed Sed Nota as to the second Point the Lord Chief Baron Atkyns and Justice Powell seemed to be an Opinion that the Remainder was Contingent But in regard the Point had been upon a Writ of Error brought in the House of Lords upon a Judgment given in the Kings-Bench in another Case upon the same Will adjudged to be a Remainder vested they conceived themselves bound by that Judgment in the House of Lords Paschae Anno 2 Willielmi Mariae Memorandum BY an Order of the King and Council 1 Willielmi Mariae the Judges were Ordered to meet and all of them except Gregory Eyre and Turton were assembled at the Lord Chief Justice's Chamber to give their Opinion concerning Colonel Lundy who was appointed Governour of London Derry in Ireland by the King and Queen and had endeavoured to betray it and afterwards he escaped into Scotland where he was taken and brought Prisoner into England and Committed to the Tower Whether admitting he were guilty of a Capital Crime by Martial Law committed in Ireland he might be sent thither from hence to be Tryed there in regard of the Act of Habeas Corpus made Anno 31 Car. 2. which Enacts That no Subject of this Realm shall be sent over Prisoner to any Foreign parts But
void if Livery had been made It was Resolved not to enure as a Covenant to stand seised because the Deed was void in the frame of it The Lords affirmed the last Judgment given by the Lords Commissioners c. and held that no Vse would arise With the concurrent Opinion of Baron Nevil Justice Eyre and Justice Ventris THE ARGUMENT OF Mr. Iustice Ventris IN THE EXCHEQUER-CHAMBER UPON A Writ of ERROR out of the Kings-Bench Christopher Dighton Gent Plaintiff versus Bernard Greenvil Esq Defendant THE Plaintiff brought a Writ of Error upon a Judgment in an Action of Trespass and Ejectment in the Kings-Bench given for the Defendant where the Plaintiff declared upon the Demise of Theophilus Earl of Huntington of a Moeity of the Mannor of Marre and of divers Messuages Lands and Tenements lying in Marre Bentley in Baln in the County of York and also of the Demise of Robert Earl of Scarsdale of the other Moiety of the said Mannor and of the Demise of Elizabeth Lewis of the entire Mannor of Marre and that by Vertue of these several Demises he entred and was possessed until ejected by the Defendant Vpon Not Guilty pleaded the Jury found the Defendant Not Guilty of the Trespass and Ejectment upon the Demise of Elizabeth Lewis and as to the Demises of the several Moieties by the said Earls they found a Special Verdict to this effect Viz. That Thomas Lewis the 9 of April 20 Jac. 1. before the Mayor of Lincoln acknowledged a Statute Merchant to William Knight for 1200 l to be paid at the Feast of St. Philip and Jacob then next following and that the said Money was not paid at the day and that William Knight the 16 of November 1629. made his last Will and one Isaack Knight his Executor and died that Isack proved the said Will and in Trinity Term 20 Car. 1. sued a Cap. si laicus out of the Common Pleas against the said Thomas Lewis directed to the Sheriff of Lincoln returnable in Tres Trin. who returned quod laicus fuit sed not fuit inventus in balliva sua upon which issued a Writ hearing Teste the 7 of July 23 Car. 1. Vic Eborum to estate the Goods and Chattels and all the Lands and Tenements of the said Thomas Lewis tempore Recognitionis debiti praed ' returnable Mense Michael upon which the said Sheriff returns an Inquisition taken the 11 of October then next following whereby Thomas Lewis was found seised of divers Lands and Tenements parcel of the Lands in the Declaration mentioned to be demised by the said Earls which he the same day caused to be delivered to the said Isack to hold by Extent as his Free-hold until he should be satisfied of his said Debt with his Damages and Costs They further find That the said Thomas Lewis and one John Levet and Thomas Lever the 20 of Novemb. 13 Car. 1. acknowledged a Recognizance in nature of a Statute Staple before the Lord chief Justice Brampston to Richard Gerrard for 1000 l payable at Christmass then next following which Money was not paid at the day and that upon a Certificate of the said Recognizance in the Chancery by John Gerrard surviving Executor of Richard Gerrard the 22 of June 24 Car. 1. there issued a Cap. si laicus and an Extent against the said Thomas Lewis to the Sheriff of the County of York retainable in Craft animar ' prox ' at which day the Sheriff returned all Inquisition by him taken whereby it appeared that the said VVilliam Lewis tempore Recogn ' debiti praed ' was sessed in Fee of the Mannor of Marre and of divers Messuages Lands and Tenements being the same Lands in the Declaration mentioned to be devised by the said Earls and the 29 of Novemb. 24. Car. 1. a Liberate was sued out returnable in quinden ' Hillar ' to the said Sheriff who returned that the 29 of Novemb. 24. Car. 1. he had caused to be delivered the said Mannor Messuages Lands and Tenements to the said John Gerrard to hold as his Free hold until he should be satisfied his said Debt will his Damages and Costs They further find That Thomas Lewis and Thomas Lever the 27 of May 15 Car. 1. acknowleged a Recognizance in nature the of a Statute Staple before the Lord Chief Justice Brampston to Sir Gervase Elwaies and William Burroughs for 5000 l payable at the Feast of St. John the Baptist next following which Money was not paid at the day and that upon a Certificate of the said Recognizance in Chancery by the said Sir Gervase Elwaies and William Burroughs the 10 of Decemb. 15 Car. 1. there issued out a Cap. si laicus and an Extent against the said Thomas Lewis directed to the Sheriff of the County of York returnable in Quinden ' Hill prox at which day the Sheriff returned on Inquisition by him taken whereby it appeared that the said William Lewis tempore Recogn ' debiti praed ' was seised in Fee of a Capital Messuage in Marre and of divers Messuages Lands and Tenements being the same Lands mentioned in the Declaration to be demised by the said Earls and that the 10 of Febr. 15 Car. 1. a Liberate ' was sued out returnable in Quidden ' Pasch to the said Sheriff who returned that he had caused to be delivered the said Lands and Tenements to the said Sir Gervase Elwaies and William Burroughs to hold as their Free hold until they should be satisfied the said Debt with their Damages and Costs They find that Thomas Lewis was seised of all the Lands mentioned in the said several Inquisitions at the respective times of his acknowledgment of the said Statute and Recognizance They find that the 15 of July 1651. Isaack Knight and John Gerrard by their respective Deeds granted their said several extended interests to one Edward Lewis by vertue whereof the said Edward Lewis became possessed of the Mannor and the Tenements praed Edwardo sic possessionat existente praedictoque Thoma Lewis de Manerio omnib ' premissis seisit ' existen ' in actual reali possessione inde the said Thomas Lewis by his Indenture of Lease and Release dated the 25 and 26 of May 1657. for 4000 l conveyed the said Mannor and Premisses to John Lewis and his Heirs in which there is a Covenant to Levy a Fine before the end of Trinity Term then next ensuing and that accordingly in Trinity Term 1657. The said Thomas Lewis did Levy a Fine come ceo with Proclamations of the said Mannor and Premises to the said John Lewis to the uses in the said Indenture mentioned by vertue whereof the said John Lewis was seised in Fee of the said Mannor and Premises And that John Lewis being thereof so seised the 21 day of July 1670 made his last Will and Testament in Writing and thereby devised the said Mannor and Tenements to Edward Lewis and the Heirs Males of his Body and for want of such Issue to his
to be done where there has been only a right of Action as in Sawle and Clerke's Case in Jones 211. and Cro. Car. where the Case as to this Point is to this effect A Remainder upon an Estate Tail was divested by the Fine of Tenant in Tail who had made an Estate for Life warranted by the Statute and died without Issue He in the Remainder was barred from bringing a Formedon in the life of the Tenant for Life within Five years after the Fine and had not a new Five years after the death of Tenant for Life tho' he could not Enter in the life of the Tenant for Life And the Reason given in Crook's Reports is because he had no other Right after the Death of the Tenant for Life than he had before and this plainly distinguisheth that and the Case at the Bar from the Cases that have been cited of June and Smye's Case in the 1 Cro. 219. and Laund and Tucker 254. for there the Fine was Levied by the particular Tenant which was a Forfeiture which he in Reversion might choose whether he would take advantage of and as the case might be it would be to his prejudice to take advantage of it where the particular Tenant has charged the Land and therefore if he would he should have Five years after the Estate determined to claim as of his Reversion which is another distinct Right from that of the Forfeiture And this was the standing difference that made the distinction where there should be a new Five years given to him in Reversion after the particular Estate determined and where not as we see in Margaret Podgers Case in the 9 Co. 106. If the Tenant for years were ousted and a Fine levied by the Disseisor he in the Reversion was bound by the first Five years Non-claim because tho' he could not enter as if the Estate for years had been determined or as in the Cases before of the Forfeiture yet he might have immediately brought an Assize with which Sawl and Clarke's Case exactly agrees and goes upon the same Reason As for Freeman's Case the Resolution goes wholly upon the Circumstances of Fraud appearing in the Case the principal of which was That the Lessee continued in possession and paid the Rent I confess they have gone a little further of late and now it is taken That he in Reversion shall have Five years after the Term is ended by effluction of Time tho' there were no Forfeiture incurred at the Levying of the Fine Nor no such plain Circumstances of Fraud as appears in Fermer's Case and the Case put before and cited out of Margaret Podgers Case is not held to be Law The contrary whereof is taken to have been Resolved in Folley and Tancred's Case in the 24 Car. 2. and I do not intend to shake the Authority of that Case but admit it to be good in Law yet I crave leave to observe That it is a Resolution carried beyond the words of the Statute for the Right is not pursued within Five years next after it first came For it is agreed in Fermer's Case fo 79. that there the Construction was against the Letter of the Statute and I must say it is a Construction by Equity which is a little extraordinary to weaken the force of a Statute which was made for the quieting of mens Possessions and to add force to Fines which were of so great regard in Law and especially to make a Construction by Equity contrary to the Reason of the Common Law which took no care of a future Right at all for he in the Reversion in case of a Fine Levied at the Common Law depended wholly upon the Entry or Claim of the particular Tenant and in default of that lost his Estate as in the 1 Inst 262. b. and in Plowden's Commentaries in Stowell's Case I say again I do not design by this to oppose any Case that hath been setled But I confess I should not have gone so far if I had not been led by Authority and am not willing to go a step further And now I shall endeavor to shew that this Case goes a great deal further and would be a greater strain upon the Statute than yet has been And First I Observe that upon all or most of the Cases of a Fine where there has been an Estate for Life or Years in being at the time of the Fine that the Possession has held still in the particular Tenant so that he in Reversion had no reason to suspect any Fine or other thing done upon the Estate there being no alteration of the Possession And this agrees somewhat with the Reason of the Common Law in case of a Fine Executory he that had Right was not bound to claim till there were an Execution of the Fine and Transmutation of the Possession thereupon as in Plowden's Commentaries 257. b. in Stowell's Case But here it is found that the Conusor and not the Conusees or the Tenants by Extent or either of them were in possession so that the Land being in the possession of a Wrong-doer they which had Right ought to have watched and might well suspect that Fines should be Levied to the prejudice of their respective Rights It is said in Fermer's Case If a meer Wrong-doer having got the Possession levieth a Fine on purpose to bind the Right this shall bind notwithstanding his unjust Design But the Differences that I chiefly rely upon to distinguish the Case before us from the Cases of Reversions upon Estates for Life and Years or the like particular Estates are these 1. That in those Estates there is either by an express Limitation of the Parties or an operation of Law a certain and particular Term or End of the Estate which until it happens it has not its proper determination which an Estate by Extent has not I know it is has been much insisted on that the natural and proper determination of an Extent is satisfaction by a perception of Profits according to the extended Value whereas I cannot see but a release of the Debt or satisfaction by a sudden Accident is as properly a determination of the Extent as if it were run out by perception of Profits according to the extended Value For when the first Extent is out of the way the second is immediately to take place or why this acknowledging Satisfactoin on Record should be the natural and proper determination of the Extent more than a Release of the Debt by the Conusee or destroying of it by a Fine which is an higher Record than the Statute or the Entry of Satisfaction acknowledged thereupon 2. To let him that has the Reversion upon an Estate by Extent have Five years to claim after the first Extent run out by perception of Profits or Satisfaction acknowledged is to let in a Claim after an Estate that no man can see to the end of For when it shall be satisfied by the Profits no man can tell and can
his Opinion that he might But if the Owner dig there also he conceived that he might then stop his farther progress And in Cornwall it is their Vse that if a man begins a Mine in his own Land he may proceed in the Vein through another mans Ground Note If a Bill in Chancery be Exhibited against a Peer the Course is first for my Lord Keeper to write a Letter to him and if he doth not answer then a Subpoena and then an Order to shew Cause why a Sequestration should not go and if he still stands out then a Sequestration For there can be no Process of Contempt against his Person Termino Sanctae Trinitatis Anno 29 Car. II. Clobberie's Case IN one Clobberie's Case it was held That where one Bequeathed a Sum of Money to a Woman at her Age of 21 years or Day of Marriage to be paid unto her with Interest and she died before either that the Money should go to her Executor and was so Decreed by my Lord Chancellor Fynch But he said If Money were bequeathed to one of his Age of 21 years if he dies before that Age the Money is lost On the other side If Money be given to one to be paid at the Age of 21 years tho' if the party dies before it shall go to the Executors Termino Sancti Michaelis Anno 30 Car. II. In Cancellaria Haymer Vid. versus Haymer THe Case was thus The late Husband of the Plaintiff before their Marriage had entred into Articles with the Plaintiff whereby it was Agreed That certain of the said Haymer's Lands should be setled before the Marriage which was then intended between them should be solemnized upon him and the Plaintiff and the Heirs of his Body by the Plaintiff but died before the Settlement was made In pursuance of the said Articles the Plaintiff married him and after his Decease the Plaintiff Exhibits her Bill to have those Articles executed Which was Decreed accordingly against the Heir at Law of the Husband Altho' it was Objected That the Articles being to make the Settlement before Marriage it was a Waver of the benefit of them the Plaintiff marrying before it was done and the Plaintiff being the sole party with whom they were made her marriage with the other party before they were performed was a Release in Law Note The Lands were mortgaged to one that had no Notice of the Articles It was Decreed That the Plaintiff should Redeem and hold for her Life and that her Executors should detain the Land till the Money was raised that she had been out upon the Redemption Termino Sancti Hillarij Anno 31 32 Car. II. In Cancellaria Sir Oliver Butler's Case UPon a Scire facias to Repeal a Patent granted by this King to Sir Oliver Butler for a Market to be kept at Chatham reciting That there was an Ancient Market long before kept at Rochester within Half a Mile of Chatham and that there was an Ad quod damnum taken out before the New Patent and the Inquest thereupon taken found it not to be to the Damage of any and that it was Executed by Surprize and without Notice and that notwithstanding it was to the great Damage of the former Market c. To this Scire facias Sir Oliver Butler Demurred And it was Argued by his Counsel That this Patent could not be Repealed because it was preceded by a Writ of Ad quod damnum whereupon it was found to be to no Bodies damage and that should conclude all or at least the King could not bring a Scire facias to Repeal his own Patent But the Lord Chancellor Fynch assisted by North Chief Justice of the Common-Pleas and Justice Jones gave Judgment for Repealing of the Patent For the Return of the Writ of Ad quod damnum was not Conclusive and here by the Demurrer it is Confessed to be to the Damage of the former Market And where a Patent is granted to the prejudice of the Subject the King of Right is to permit him upon his Petition to use His Name for the Repeal of it in a Scire facias at the King's Suit and to hinder multiplicity of Actions upon the Case for such Actions will lye notwithstanding such void Patent Termino Sanctae Trinitatis Anno 32 Car. II. In Cancellario Sir Jerom Smithson's Case A Motion was made for a Ne exeat Regnum against Sir Jerom Smithson for that his Wife had Sued him in the Ecclesiastical Court for Alimony and it was suspected that he would go beyond Sea to avoid the Sentence And the Writ was granted And the Lord Chancellor said That it had been so done before for this Court was to aid the Ecclesiastical Court in such Cases And likewise the Court being Informed of his Ill usage of his Wife a Supplicavit de bono gestu was granted My Lord Hollis's Case Pasch 26 Car. II. MY Lord Hollis's Case was thus An Hundred Pounds was Lent by his Lady and in the Note which was first given for it it was written that the Money was to be disposed as the Lady Hollis should direct An Action at Law for this Mony being barred by the Statute of Limitations a Bill was exhibited for Relief and the Statute of Limitations insisted upon But in regard the Money was looked upon as a Depositum and a Trust thereupon to the Lady a Decree was obtained for the Money Sir William Beversham's Case HE had purchased a Mannor and a Copyhold being a little before Escheated which was not intended to pass in Demesn was left out of the particular yet the Conveyance was sufficient to pass it in Law And the Vendor Exhibited a Bill to be relieved and obtained a Decree to hold by Copy of Sir William Beversham Vide 1 Roll. 397. Averments not to be admitted in Chancery contrary to the purport of a Deed. Anonymus Trin. Anno 31 Car. II. THe Case was thus J.S. made his Will his Wife being at that time with Child where he ordered that all his Personal Estate after his Debts and Legacies paid should be laid out in Land in case he had a Son and be setled upon his Brother for preservation of his Name and Devised That if his Wife were delivered of a Daughter that she should have 3000 l paid her at her Day of Marriage provided that she married with her Mothers Consent and otherwise but 1000 l and also Devised That the Mother should have 80 l part of the Interest of the 3000 l for the Education of the Daughter The Testator dies and the Wife has a Daughter The Question was Whether the Daughter should have the remaining part of the Interest of the 3000 l or the Executors should have it in Trust for the Brother and so to be laid out c. It was said for the Brother that the Father intended the Daughter but 3000 l at the most and that appointing 80 l part of the Interest of her Education excluded her from the rest
and it s a Devise That all his Personal Estate shall be laid out c. Curia There is nothing to be laid out until the Debts and Legacies paid the 80 l is not to the Daughter but for the Mother 'T is taken for granted that where a Sum of Money is devised to a Child at such an Age it shall have the Interest in the mean time rather than the Executor shall swallow it but clear when no Maintenance is otherwise provided for The Lord Chancellor Decreed it for the Daughter and that the Executor should account for what Interest he paid the Brother Note Tho' it be said that the Money to be laid out after all Legacies paid yet all besides what serves to pay the Legacies should be laid out presently Anonymus Trin. Anno 31 Car. II. A Devise of 100 l to J.S. at the Age of 21 years and if J.S. died under Age then J.N. and A.B. to have the 100 l or else the Survivor of them A.B. and J.N. dye both in the life of J. S. and before the Age of 21 years and then J.S. dies under the Age of 21 years The Administrator of J.N. who survived A.B. sued and obtained a Decree for the 100 l for tho' he died before the Contingency hapned yet his Administrator should have it Charles Blois al' Plaintiffs versus Dame Jane Blois and Jane Blois Infants Defendants Mich. Anno 31 Car. II. THe Case was thus Sir William Blois who had Issue the Plaintiff and two Daughters by a former Venter and Jane the Defendant by a second Venter upon his second Marriage setled Lands for the Ioynture of his Wife and after her decease in case he had Issue only a Daughter to raise 3000 l for that Daughter to be paid her at the Day of Marriage so that she married after Sixteen or otherwise at the Age of Eighteen years and if she died before either then his Heir to have the benefit Afterwards Sir William Blois by his Will devises the Reversion of his setled Lands and all his other Estate to Jane his Relict one of the Defendants and three others and says That after the Son by a convenient Match shall have raised 9000 l for his three Daughters that then they should let the Son the now Plaintiff have his Estate The Question now was That if the Daughter by the second Venter had 3000 l paid her whether she should have any further benefit by the Settlement and so take a double Portion one upon the Will and another upon the Settlement The Decree made by my Lord Fynch was That if the Heir paid 9000 l the Security by the Settlement should be discharged the Will being but Cumulative Security and so the Defendant Jane was to have but one 3000 l and be subject to the same Contingencies with the Settlement and gave the Heir two years time to pay the Money and in the mean time Jane to have a third part of the Profits of the Land devised My Lord Chancellor cited one Pyne's Case where a man had secured Portions for his Children and afterwards by his Will Devised to each of them a like Sum it was held that this would not double their Portions unless plainly proved that he intended to do so Nota If one sue in Chancery an Executor of one Obligor to discover Assets you must make all the Obligors parties that the Charge may lye equal Quaere Whether you may not sue the Principal and leave out them that are bound only as Sureties But 't is clear that if a Judgment be had at Law against one Obligor you may sue the Executor of him alone to discover Assets c. because the Bond is drowned in the Judgment Turner's Case A Mortgage was made in Fee which descended to the Heir at Law and the Money ten years since paid to him The Executor of the Mortgagee preferred his Bill and had a Decree for the Money but without Interest My Lord Chancellor went upon the Reason of the Case in Littleton That if a Feoffment be made upon Condition to re-enter upon the payment of a Sum of Money and not expressed to whom to be paid there after the Death of the Feoffee it must be paid to the Executor and not to the Heir So here tho' the Proviso was to pay to the Feoffee his Heirs or Executors yet when the Day is past 't is as much as if no person had been expressed and then Equity shall follow the Law and appoint it to the Executor Termino Paschae Anno 32 Car. II. In Cancellaria Anonymus AN Impropriator devised to one that served the Cure and to all that should serve the Cure after him all the Tythes and other Profits c. Tho' the Curate was incapable to take by this Devise in such manner for want of being Incorporate and having Succession yet my Lord Chancellor Finch Decreed That the Heir of the Devisee should be seised in Trust for the Curate for the time being Broadhurst versus Richardson al' A Man had Issue three Daughters and devised to his three Daughters 540 l equally to be divided between them that is to say 180 l apiece but if any of them died without Child her part to go to the Survivors One of the Daughters married Broadhurst and before the Portion paid she died without Issue Broadhurst Exihibits his Bill against the Executor and the two surviving Sisters and had a Decree for the 180 l For a Sum of Money cannot be Entailed Anonymus IF Lands be devised for the payment of Debts and Legacies and the residue of the Personal Estate be given to the Executors after the Debts and Legacies paid the Personal Estate shall notwithstanding as far as it will go be applied to the payment of the Debts c. and the Land charged no further than is necessary to make up the residue Termino Sancti Hillarij Anno 32 33 Car. II. In Cancellaria Sayle Freeland al' Infants THe Bill was to Redeem a Mortgage made by the Father of the Defendants or to be foreclosed The Defendants by Guardian Answered setting forth That their Grandfather was seised in Fee and made a Settlement whereby he entailed the Estate but with a power of Revocation by any Writing published under his Hand and Seal in the presence of three Witnesses And the Case was That he made his Will under his Hand and Seal wherein he recited his Power and declared that he Revoked the Settlement but the Will had but two Witnesses which subscribed their Names tho' a third present and died The Lands descended to the Father who made the Mortgage and the Defendants claimed by virtue of the Entail The Decree was that the Mortgage Money should be paid First My Lord Chancellor said that here was an Execution of the Power in strictness tho' the third Witness did not Subscribe Secondly If there had not that Equity should help it in such a little Circumstance where the Owner of
the Estate had fully declared his Intention There is a difference where a man has power to make Leases c. which shall charge and incumber a third persons Estate such Powers are to have a rigid Construction but where the Power is to dispose of a mans own Estate it is to have all the favour imaginable It was offered by the Counsel That where Tenant in Tail did bargain and sell his Estate that seeing he had power over it notwithstanding there were no Fine and Recovery a Court of Equity should Decree against the Heir But my Lord Chancellor said that he would not supersede Fines and Recoveries but where a man was only Tenant in Tail in Equity there this Court should Decree such disposition good for a Trust and Equitable Interest is a Creature of their own and therefore disposable by their Rule Otherwise where the Entail was of an Estate in the Land Nota In the Case supra that the Court would not Decree the Infants to be foreclosed till they come of Age tho' sometimes 't is so done because this Mortgage depended upon a disputable Title and so no Money could be expected upon Assignment of it over Termino Paschae Anno 33 Car. II. In Cancellaria Sir Thomas Littleton's Case IN this Case my Lord Chancellor Declared 1. That it was a constant Rule That the Money to be paid upon Mortgages in Fee whether forfeit or not before the death of the Mortgagee that it should go to the Executor 2. If a man had Lands in Fee and other Lands mortgaged to him in Fee by a Devise of all his Lands the Mortgage would pass 3. If a man had but the Trust of a Mortgage of Lands in D. and had other Lands in D. by a Devise of all his Lands in D. the Trust would pass But here a Will devised Lands to J. S. in D. S. and T. and all his Lands elsewhere when he had a Mortgage of Lands that did not lye in D. S. or T. which were of more value than the Lands in D. S. and T. The Decree was that the Mortgage should not pass for he could not be thought to mean to comprehend Lands of so much value under the word elsewhere which is like an c. that comes in currente calamo and besides that there were some other Circumstances in the Will that did seem as if he intended not to pass the Mortgage Lands Anonymus A Bill was Exhibited setting forth That the Defendant in a Replevin had avowed for a Rent-charge and Issue was taken thereupon upon the Seisin of the Grantor and it was found for the Defendant Which Verdict the Plaintiff complained of alledging that the Rent pretended to be granted had not been paid in 50 years and other Circumstances to render the Grant suspicious c. The Lord Chancellor Decreed That there should be a New Trial the Complainant paying the Costs of the former Note This could not have been tryed again at Law because the Verdict in Replevin is conclusive Cage versus Russel A Feme Covert having Power by her Will to Devise certain Lands devised them to her Executors to pay 500 l out of them to her Son when he should attain the Age of One and twenty years provided that if the Father of the Son did not give a sufficient Release to the Executors of the Goods and Chattels remaining in such an House then the Devise of the 500 l should be void and to go to the Executors After her Decease a Release was tendred to the Father who refused it and then the Son exhibits a Bill against the Father and the Executors for the 500 l and to compell the Father to Release The Executors in their Answer insisted upon the Refusal as a Forfeiture of the 500 l And the Father said That tho' he had for some Reasons before refused he was now ready to Release The Lord Chancellor Decreed the Payment of the 500 l and said that it was the standing Rule of the Court That a Forfeiture should not bind where a thing may be done afterwards or any Compensation made for it As where the Condition was to pay Money or the like But in the Case of Fry and Porter in the 22th of Car. 2 which see at large in the Modern Reports where a Devise was of an House upon Condition that the Devisee should Marry with the Consent of three persons and she married without Consent it was an immediate Forfeiture for Marriage without Consent was a thing of that nature that no after Satisfaction could be made for it But if where there is a Devise over to a third Person after a Forfeiture by the first a Forfeiture in such a Case would be generally binding but here 't is said that it shall go the Executors c. which was not to be considered because it is no more than what the Law implied Termino Sancti Michaelis Anno 33 Car. II. In Cancellaria Anonymus ONe Deviseth 250 l to his Son and makes his Wife Executrix who marries another Husband In a Bill brought against them for the Legacy by the Son the Defendants would have discounted Maintenance and Education Which was not permitted by the Court so as to a diminish the principal Sum for it was said that the Mother ought to maintain the Child But a Sum of Money paid for the binding of him out an Apprentice was allowed to be discounted Note It is the Course here that where a man dies in Debt and under several Incumbrances viz. Judgments Statutes Mortgages c. and the Heir at Law buys in any of them that are of the first Date if those which have the latter Securities prefer their Bill the Incumbrances brought in shall not stand in their way for more than the Heir really paid for them Goylmer versus Paddiston THe Case was thus Thomas Goylmer in 1653. being seised of certain Lands in Fee of the value of 14 l per annum and there being a Marriage in Treaty between the Plaintiff the Brother of Thomas and Anne Wells the said Thomas did make a Writing sealed and delivered by him which was to this purpose Viz. That if the Marriage takes effect between my Brother and Ann Wells she being worth Eightscore Pounds I do promise that if I dye without Issue to give my Lands in c. to my Brother and his Heirs or to leave him 80 l in Money And for the true performance of this I bind my self my Heirs Executors and Administrators After which the Brother the now Plaintiff and the said Anne Wells did intermarry and she was worth Eightsocore pounds But Thomas Goylmer did afterwards marry and having no Issue he did settle the Lands upon his Wife for Life the Remainder to his own right Heirs this way a Joynture setled before Marriage and did afterwards devise the Land to her in Fee and died without Issue His Wife afterwards devised it to the Defendant's Wife in Fee and now the Plaintiff exhibited
his Bill to have the Land Conveyed according to the Agreement above But for the Defendants it was much insisted upon that this being to settle the Lands in case Thomas should dye without Issue it should not be regarded in this Court for the Execution of a Trust of a Remainder or Reversion in Fee upon an Estate Tail shall not be compelled because it is subject to be destroyed by the Tenant in Tail as here Thomas might have done in case he had made a Settlement according to the import of that Writing who therefore could not have been compelled himself to have executed this Agreement But the Lord Chancellor Fynch Decreed the Land for the Plaintiff because it was proved that the Marriage with the Plaintiffs Wife was in expectation of the performance of this Agreement and he was obliged to have left the Land to the Plaintiff if he had had no Issue Termino Sanctae Trinitatis Anno 34 Car. II. In Cancellaria Collet versus Collet WIlliam Fox having three Daughters Mary Elizabeth and Martha the two latter being Married and the first a Widow by his Will devised in these Words Viz. I give unto Martha my Daughter the Sum of 400 l to be paid unto her by my Executors within one year next after my decease But I will and my desire is that Cornelius Collet the Husband of Martha upon the payment of the said 400 l shall give such Security as my Executors shall approve of that the said 400 l shall be laid out within 18 Months next after my decease and purchase an Estate of that value to be setled and assured upon her the said Martha and the Heirs of her Body lawfully begotten And in the Close of his Will were these words following Viz. I Will That after my Debts which I shall owe at the time of my Decease and my Funeral Expences and the Probat of this my Will be discharged then I do give all the rest of my Personal Estate Unbequeathed to purchase an Estate near of as good value as the same Personal Estate shall amount unto within one year next after my my decease Which said Estate so to be purchased I Will shall be setled and assured unto and upon my said three Daughters Mary Elizabeth and Martha and the Heirs of their respective Bodies lawfully begotten for ever or otherwise my said Daughter Mary and the Husbands of my said two other Daughters Elizabeth and Martha shall for such Moneys as they shall receive of my said Executors for the Overplus of my Personal Estate enter into one or more Bonds in the double Sum of Money as each part shall amount unto the same being to be divided into three parts unto my said Executors within 18 Months next after my decease to settle and assure such part or Sum of Money as each of them shall receive and have by this my Will for the Overplus of my Personal Estate unto and upon the Child and Children of my said Daughters Mary Elizabeth and Martha part and part alike Martha the Wife of Cornelius Collet died within six Months after the Testator leaving Issue only a Daughter who died within four Months after the Mother the other two Sisters surviving Cornelius Collet took out Letters of Administration both to Martha his Wife and likewise to his Daughter the Four hundred Pounds and likewise the Overplus of the Personal Estate being unpaid or disposed of Cornelius Collet preferred his Bill against the Executors and the surviving Sisters and thereby demanded the 400 l and likewise a third part of the Overplus which amounted unto 700 l And the Cause came to be heard before the Lord Chancellor upon Bill and Answer who Decreed the 400 l to the Plaintiff but as to the Surplus of the Estate the Bill was dismissed altho ' it was much insisted upon for the Plaintiff that he might have given Bond to secure the Surplus for his Child and so from the Child it would have come to him as Administrator But seeing that no Interest could vest in the Child till the Election were determined it not being material as to this Point whether the Executors or the Husband aâ— the Election the Father could not claim it as Administrator to the Child And then if the Money had been laid out in Land and the Settlement according to the direction of the Will the Husband would have had no benefit for there would have been a Ioynt Estate for Life in the Daughters with several Inheritances and no severance of the Ioynture by the Marriage and having Issue Co. Inst and so no Tenant by the Courtesie Therefore as to the Surplusage the Bill was Decreed to be dismissed Note As to the 400 l the Order of my Lord Chancellor was That Interest should be paid for it from the time of bringing the Bill Termino Sancti Michaelis Anno 34 Car. II. In Cancellaria West versus The Lord Delaware WEST Heir apparent of the Lord Delaware Exhibited his Bill against the said Lord setting forth That upon a Marriage agreed to be had between him and the Daughter of one Mr. Huddleston with whom he was to have 10000 l Portion The Lord his Father Articled to settle Lands of such yearly value for the Wives Ioynture for their maintenance and the Heirs of their Bodies c. That the Wife being now dead and without Issue and no Settlement made the Bill prayed an Execution of the Articles and a discovery of what Incumbrances there were upon the Lands to be setled To this the Lord Delaware Answered That he never intended to settle Lands but for the Wives Ioynture only and that the Plaintiff her Husband was not named in the Articles and so was Advised He need make no Settlement and upon that Reason the Plaintiff could not require him to discover Incumbrances An Exception being taken to the Answer for that it did not discover any thing touching Incumbrances it was Argued before my Lord and for the Defendant it was alledged That by the Course of the Court the time of the Discovery should be when the other Point was determined for if that be for the Defendant then no Discovery can be required but if otherwise that then the Defendant shall be put to answer Interrogatories as is usual in Cases of like nature And it cannot be Objected That the Estate may be charged with Incumbrances since the Bill because they will be of no avail On the other side it was said That this would create great delay for upon the discovery of Incumbrances other parties must be made to the Bill and therefore this Case differed from the Case of Account which concerns the Defendant himself only but the Question now is only for the making proper Parties The Court Ordered That a further Answer should be made Nota If a man deviseth that such a Sum of Money shall be paid out of the Profits of his Lands and the Profits will not amount to the Sum in such case the Land
may be sold Noell versus Robinson THe Plaintiffs Father being seised in Fee of a Foreign Plantation devised it to the Plaintiff and made the Defendant Executor The Executor let it for years reserving Rent in Trust for the Plaintiff who now Exhibited his Bill to have his Rent The Defendant Confessed the Devise of the Testator and the Lease made by himself but said That great Losses had fallen upon the Testator's Estate and that he paid and secured which is payment in Law for the Debts of the Testator to â— great value and that he hoped he should be permitted to reimburse himself by the receipt of this Rent notwithstanding the mentioning of the Trust as aforesaid The Cause came to Hearing and the Court Decreed for the Plaintiff For altho' a Legatee shall refund against Creditors if there be not Assets and against Legatees all which are to have these proportion where the Assets fall short yet the Executor himself after his Assent shall never bring the Legacy back But if he had been sued and paid it by the Decree of this Court the Legatee must have refunded as if a Debtor to a Bankrupt pays him voluntarily he must pay him over again Otherwise of payment by Compulsion of Law Note My Lord Chancellor said That if they give Sentence for a Legacy in the Ecclesiastical Court a Prohibition lies unless they take Security to Refund Note also in this Case that tho' it be an Inheritance yet being in a Foreign Country 't is looked upon as a Chattel to pay Debts and a Testamentary thing It was Objected That this could not be taken for an Assent for if so how could the Executor let it But the Court said that it did tantamount to an Assent and being a lawful Act a little matter will be taken for an Assent Anonymus A Bill was Exhibited by the Assignees of Commissioners of Bankrupts to have an Account against the Defendant of the Bankrupts Estate The Defendant pleaded that he was but Servant to the Bankrupt and had given an account of all to his Master and likewise had been Examined before the Commissioners upon the whole Matter Vpon Hearing his Plea my Lord Chancellor Over-ruled it and Ordered that he should Answer Anonymus IF a man makes a Lease or devise an Estate for Years he being seised of an Estate of an Inheritance for payment of Debts if the Profits of the Lands surmount the Debt all that remains shall go to the Heir tho' not so exprest and albeit it be in the case of an Executor Barney versus Tyson THe Case was thus The Plaintiff in the Life of his Father being about 26 years of Age and having occasion for Money prevails with the Defendant to let him have in Wares to the value of 400 l and gives him Bond for 800 l to be paid if he survived his Father at which time an Estate would befall him of 5000 l per Annum and he having survived his Father he preferred his Bill against the Defendant to compel him to take his Principal Money and Interest And it was proved in the Case that the Defendant was Informed at the time of this bargain that the Father was ill and not like to live and he did live but a year and half after and that one Stisted a man very Infamous was employed in the transaction of this Bargain And the Plaintiff obtained a Decree in the time of the Lord Chancellor Fynch And now upon a Petition to the Lord Keeper North the Defendant obtained a Re-hearing And in maintenance of the Decree it was alledged that the hazard which was run was very little and such Bargains with Heirs were much to be discountenanced The Lord Keeper affirmed the Decree but said that he would not have it used as a President for this Court to set aside mens Bargains But this Case having received a Determination and the Defendant having accepted his Principal Money and Interest thereupon and there being only a slight Omission in the Enrolment of the Decree which if it had been done had prevented a Re-hearing and the Defendant having delayed his Application to him by Petition he would not now set the Decree aside Termino Paschae Anno 35 Car. II. In Cancellaria Hodges versus Waddington THe Case was thus An Executor wasted the Testator's Estate and made his Will wherein he devised divers of his own Goods and made his Son Executor Afterwards a Suit was commenced against the Son to bring him to an Account for the Estate of the first Testator which was wasted and pending that Suit the Son after the Bill brought against him by the Legatee of his own Goods delivered them to the Legatee and assented to the Legacy After which upon the Account against the Son it appeared that the first Executor had wasted the Goods of the first Testator to such a value And then the party at whose Suit the said Account was and who was to have the benefit thereof together with the Son and Executor of the first Executor preferred a Bill against the Legatee of the Goods to make him Refund and obtained no Relief especially for that he had made the Executor Plaintiff who should not be admitted to undo his own Assent But liberty being given to bring a New Bill against the Legatee and the said Executor the Cause came to Hearing and it was Decreed That the Legatee should Refund So that one Legatee that is paid shall not only Refund against another but a Legatee shall Refund against a Creditor of the Testator that can charge an Executor only in Equity viz. Upon a wasting by the first Executor But if an Executor pays a Debt upon a Simple Contract there shall be no Refunding to a Creditor of an higher Nature Note also The Principal Case went upon the Insolvency of the Executor Anonymus A Bill was brought setting forth a Deed of Settlement of Lands in Trust and to compel the Defendant who was a Trustee therein nominated to Execute an Estate The Defendant by Answer says That he believed that there was such a Deed as in the said Bill is set forth c. And upon the Hearing they would have read a Deed for the Plaintiff tho' not proved but upon a Commission taken out only against another Defendant to the Bill supposing it to be Confessed by the Answer But the Court would not permit the Reading of it for the Confessing goes no further than what is set forth in the Bill and will not warrant the Reading of a Deed produced altho' it hath such Clauses in it Anonymus A Bill was preferred against one to discover his Title that A.B. might be let in to have Execution of a Judgment The Defendant pleaded That he was a purchaser for a valuable Consideration but did not set forth That he had no Notice of the Judgment And it was Over-ruled for 't is a fatal Fault in the Plea Bird versus Blosse THe Case was thus One wrote a Letter signifying
his Assent to the Marriage of his Daughter with J.S. and that he would give her 1500 l And afterwards by another Letter upon a further Treaty concerning the Marriage he went back from the Proposals of his Letter And at some time after declared That he would agrèe to what was propounded in his first Letter This Letter was held a sufficient Promise in Writing within the Statute of 29 Car. 2. called the Statute against Frauds and Perjuries and that the last Declaration had set the Terms in the first Letter up again Anonymus WHere a man buys Land in anothers name and pays Mony it will be in Trust for him that pays the Mony tho' no Deed declaring the Trust for the Statute of 29 Car. 2. called the Statute of Frauds doth not extend to Trusts raised by Operation of the Law Anonymus AN Administrator de bonis non of the Conusee of a Statute had agreed with the Conusor to assign it in Consideration of a Sum of Mony which upon the said Agreement the Conusors had Covenanted to pay to him his Executors or Administrators and then the Administrator died The Court Decreed the Mony to be paid to the Executor of the Administrator and not to the New Administrator de bonis non altho' before the Extent it could not be assigned at Law Sed nota That there were not Debts of the first Intestate appearing Termino Sancti Hillarij Anno 35 36 Car. II. In Cancellaria NOte Suits in Chancery admitted for Distribution of Intestates Estates upon the Act of 22 Car. 2. Sir Thomas Draper Mil ' versus Dr. Crowther THe Bill sets forth a Contract under Seal with the Defendant for making of a Lease of certain Lands in Middlesex and to have an Execution of the Agreement The Defendant pleaded That he has Head of a Colledge in Oxford and sets forth the Charters of 14 R. 2. and 14 H. 8. Impowering the University to enquire and proceed in all Pleas and Quarrels in Law and Equity except concerning Freehold where a Scholar their Servants and Ministers sunt una partium c. ita quod Justiciarij de Banco Regis sive de Communi Banco vel Justiciarij ad Assisas non se intromittant c. And the Confirmation by an Act of Parliament of the 13th of Elizabeth and Concluded his Plea to the Iurisdiction of the Court. And it came to be Argued before the Lord Keeper Guildford 22 Febr. 1683. and the Plea was Over-ruled because the Charter ought properly to be extended to Matters at Common Law only or to Proceedings in Equity that might arise in such Cases and not to meer Matters of Equity which are Originally such as to Execute Agreements in specie Again Conuzance of Pleas is never to be allowed unless the Inferior Jurisdiction can give Remedy Here they can only Excommunicate or Imprison but cannot proceed to Sequestration of Lands in Middlesex If the Matter lay only in Damages it might be allowed to them because the Jurisdiction is given over all England but this is not to be intended where the Suit is for the thing it self and when 't is out of their reach A President was cited in the year 1663. before my Lord Clarendon Chancellor assisted with Hale then Chief Baron and Justice Wyndam where the Plea was Over-ruled Vide in the 3 Cro. 63. Wilcocks and Bradell's Case and Hallie's Case 87. Sir Robert Reeve's Case SIr George Reeve upon his Marriage with his Second Wife setled a Ioynture of divers of his Lands in Suffolk which he had before charged with his Daughters Portion viz. 3000 l which Daughter he had by a former Wife and by his last Will he mentioned that the said Joynture Lands were so incumbred and therefore he Devised certain Lands he had in Bickerton in Yorkshire to his Wife in lieu of such part of the Suffolk Lands as were charged with the Portion in case she would accept thereof But after his Decease it appeared that the Lands in Bickerton were not equivalent in Value to the Suffolk Lands and therefore she held to the latter and was not prejudiced by the Charge of the Portion because it appeared to be a Voluntary Settlement Nota In this Case the Lord Keeper Decreed that the Portion should be charged upon the Bickerton Lands for so much as it was defeated by the Settlement in Ioynture of the Suffolk Lands Anonymus ONe Devised his Lands to J.S. in Fee in Trust for Katharine and the Heirs of her Body and if Katharine died without Issue to Jane for life And in another Clause in the Will he devised That if Katharine died without Issue and Jane be then deceased then and not otherwise he gave the Land to J. N. and his Heirs Katharine died without Issue and Jane survived her and died A Bill was brought by J. N. against J. S. and the Heir at Law of the Testator to have this Trust executed My Lord Keeper Decreed it for J. N. altho' Jane survived Katharine because the words if Jane be then deceased seemed to be put in to express his meaning that Jane should be sure to have it for her life and that J. N. should not have it till she were dead and also to shew when J.N. should have it in possession Termino Paschae Anno 36 Car. II. In Cancellaria Wiliam Ragget and his Wife versus William Clarke THe Case was thus Nicholas Wheeler was seised of a parcel of Land for his own life and the lives of two others and prevailed with the Defendant to be bound with him for a Sum of Mony And that the Defendant might raise Mony for the discharge of the said Debt he permitted the Defendant to enter into the said Lands and to take the Profits for two years the said Lands being about 12 l yearly value and the said Land being so in the possession of the Defendant the said Wheeler died and made Isabel Wife of the now Plaintiff his Executrix And this Bill was brought by the said Husband and Wife to have an account of the Profits and that the possession of the Land should be delivered up to them The Defendant by Plea sets forth his Title as Occupant and it was allowed And the Bill was dismissed Bonham versus Newcomb ONe being seised in Fee in Consideration of 1000 l paid to him by a Person that married his Kinswoman Conveys to him and his Heirs and takes a Re-demise for 99 years if he should live so long And a Covenant therein That if he should pay 1000 l with the Interest that should be due for the same at any time during his life that the Grantee should Re-convey to him and his Heirs and that if he did not pay the Mony then that his Heirs c. should have no power to Redeem He died the Mony not being paid and his Heir preferred a Bill to Redeem it And it was urged for him That in a Conveyance which was a Security for Mony whatever
Covenant there was therein to exclude from Redemption such Covenant would not be regarded in this Court and that the Person to whom the Conveyance was made might have had a Bill in the life time of him that Conveyed to have a time set for the payment of the Mony or otherwise to be foreclosed But my Lord Keeper dismissed the Bill For he said in a common Mortgage such Covenant to restrain Redemption should not be regarded but this was made with an Intention of a Settlement of his Estate besides the Consideration of the Mony paid And he denied that he could have been by the Decree of this Court limited to any time for payment of the Mony for this Court cannot shorten the time that is given by express Covenant and Agreement of the parties but when that time is past then the Practice is to foreclose Nota This Dismission was afterwards in the Parliament held 1 2 W. M. affirmed Nota If a man makes a Voluntary Conveyance and there be a defect in it so as it cannot operate at Law this Court will not Decree an Execution thereof But sometimes it has been Decreed where it is intended a provision for younger Children The Lord Salisbury's Case MY Lord Salisbury married the Daughter of one Bennet who had two Daughters and bequeathed by his Will to each of them 20000l provided that if they or either of them married before the Age of Sixteen or if that the Marriage were without the Consent of such persons that they should lose 10000 l of the Portion and that the 10000 l should go to his other Children The Case was thus The Lord Salisbury married with one of the Daughters under the Age of 16. but with the Consent of all the parties It was urged That it being with Consent it might be at any Age. But my Lord Keeper was of Opinion that both parts must be observed Anonymus IN a Covenant to stand seised to the use of A. for life and after to two equally to be divided and to their Heirs and Assigns for ever My Lord Keeper declared his Opinion that the Inheritance was in Common as well as the Estate for life He said that it had been held that where the words were to two equally divided that should be in Common otherwise if the words were equally to be divided but since taken to be all one Nay a Devise to two equally will be in Common Here there shall not be such a Construction as to make one kind of Estate for life and another of the Inheritance and Survivorship is not favoured in prejudice of an Heir Note That if a Bill be Exhibited for the Examining of Witnesses in perpetuam rei memoriam if the Plaintiff therein prays Relief the Bill shall be dismissed Termino Paschae Anno 1 Jac. II. In Cancellaria The Lord Pawlett's Case THe Lord Pawlett had made a Settlement of his Estate and had by the Deed charged his Lands with the payment of 4000 l apiece to be paid to his two Daughters at their respective Ages of 21 years or days of Marriage and reserved to himself a Power of otherwise ordering it by his Will And by his Will in Writing made at the same time or within a day after devised by these words viz. I give and bequeath to my two Daughters by name 4000 l apiece to be respectively paid unto them for their Portions in such manner as I have provided by the said Settlement and mentioned that he would be understood to mean only one 4000 l to each of his said Daughters and appointed to each of the Daughters 100 l per annum for Maintenance It hapned one of the Daughters died before Marriage or the Age of 21 years and my Lady Pawlett the Mother of the Daughters took out Letters of Administration to the Daughter that died and preferred a Bill against the Trustees for the 4000 l and the Heir to whom the benefit of the Lands after the Mony raised was appointed The Question solely was Whether this Mony should go to the Administratrix or the Land be discharged thereof and accrue to the benefit of the Heir It was agreed on all hands that if this had been a Legacy or a Sum of Mony bequeathed by the Will altho' the party had died before the Age of 21 or Marriage the Administrator should have had it and that is the Practice in the Ecclesiastical Court in case of Legacies The Legatee in such case is taken to have a present Interest tho' the time of payment be future My Lord Keeper mentioned the Reason to be because it Charges the Personal Estate which is in being at the time of the Testator's death and if the Legacy should by such an accident be discharged it would turn to the benefit of the Executors whereas the Testator did not probably so intend it And further it has been Ruled That altho' a Sum of Mony be devised out of Lands to be so paid at a future day the Death of the Legatee doth not lose it Tho' my Lord Keeper did not seem satisfied with the Reason of that Case but it having been so Decreed it was not good to vary to avoid Arbitrariness and Incertainties But here this Sum of Mony is appointed to be paid by the Deed and is a Trust charged upon Lands and Trusts are governed by the Intention of the party and that the Personal Estate is not Charged and this Sum of Mony doth not lye in demand by a Suit as where a Legacy is devised but only a Bill may be preferred to have the Trusts performed And tho' it was much insisted on for the Plaintiff that here the Will bequeaths this Mony yet that refers to the Deed and orders it to be paid in such manner as was thereby appointed And it was said to be the same with the Case of Bond and Richardson which was lately by my Lord Keeper thus Decreed being a Sum of Mony charged to be paid out of Land at such an Age. If a Settlement were made and Lands charged with such Sums of Mony as a Will should declare there the Will would be but Declarative and not Operative Termino Sancti Hillarij Anno 1 2 Jac. II. In Cancellaria Frances Whitmore Vid ' Plaintiff versus Weld al' Defendants THe Case as it was drawn up upon Reference thereof by my Lord Keeper to the Judges of the Common Pleas for their Opinion was thus Viz. On the 18th of January 1675. William Whitmore the Elder taking notice that he had setled the major part of his Lands by Deed and being possessed of a very great Personal Estate in Mortgages Jewels Plate Bonds and other Goods and Chattels amounting in the whole to a very great Sum by Will in Writing devised several Legacies and after Wills in this manner Viz. The surplusage of my Personal Estate my Debts Legacies and Funeral Charges being paid and satisfied I give unto the Right Honourable William Earl of Craven for
Tenant in Tail and levying of a Fine there is an Instantaneous Fee in him out of which the new Estate Tail is supposed to be created and that cannot hold bring derived out of a Fee subject to the Forfeiture by Relation but this Point was not touched by the Judges for that they were fully agreed upon the other Point Beasly's Case HE was taken in Execution taken a Recognizance of Bail and he made it appear to the Court that he never acknowledged the Recognizance but was personated by another and thereupon it was moved that the Bail might be vacated and he discharged as was done in Cottons Case 2 Cro. 256. But the Court said since 21 Jac. cap. 26. by which this Offence is made Felony without Clergy it is not convenient to vacate it until the Offender is convicted and so it was done 22 Car. 2. in Spicers Case Wherefore it was ordered that Beasly should bring the Money into Court an be let at large to prosecute the Offender Twisden said it must be tried in Middlesex tho' the Bayl was taken at a Judges Chamber in London because filed here and the Entry is venit coram Domingo Rege c. So it differs from a Recognizance acknowledged before my Lord Hobart upon 23 H. 8. at his Chamber and Recorded in Middlesex there Scire facias may be either in London or Middlesex Hob. rep If a false Bayl be acknowledged it is not Felony unless it be Filed and so held in Timberly's Case The King versus Humphrey's al. AN Indictment upon the Statute of Maintenance and one only found Guilty and it was moved in Arrest of Judgment that seeing but one was found Guilty it did not maintain the Indictment 2 Rolls 81. several were indicted for using of a Trade and said uterque eor ' usus fuit and held not good Sed non allocatur for that in that case in Rolls the using of the Trade by one cannot be an using by the other But this is an Offence that two may joyn in or it may be several as in a Trespass But then it was alledged that the Maintenance was in quodam placito in Cur ' coram Domino Rege pendent ' and not said where the Kings Bench Sate and this was held fatal Termino Sancti Hillarij Anno 28 29 Car. II. In Banco Regis Jay's Case A Mandamus to restore to his place of a Common Council Man in the Corporation of Eye in Suffolk The Return was that he was amoved for speaking of approbious words of one of the Aldermen viz. That he was a Knave and deserved to be posted for a Knave all over England And it was moved that the Return was insufficient for words are not good cause to remove a Man from his place in the Corporation To which it was said that this not a difranchising of him but only removing him from the Common Council as a person not fit to sit there To which Twisden said that his place there could no more be forfeited than his Freedom for he was chosen thereunto by the Custom of the place And Magna Charta is that a Man shall not be disseised de liberis consuetudinibus But he held that words might be a cause to turn out a Freeman as if they were that the Mayor or the like did burn the Charters of the Town or other words that related to the Duty of his place But in the Case at Bar the words do not appear to have any reference to the Corporation wherefore it was ordered that he should be restored The Court said that my Lord Hale held That Returns of this nature should be sworn tho' of late days it has not been used and that it was so done in Medlecot's Case in Cro. Abram versus Cunningham UPon a Special Verdict the Case appeared to be to this effect A. possessed of a Term makes B. Executor who makes three Executors and dies two of them dies and the Will of B. the Executor not being discovered Administration is granted cum Testamento annexo to D. who grants over the Term. The surviving Execcutor never intermeddles but so soon as he had Notice of the Will Refused before the Ordinary and the Point was Whether the grant of the Term in the mean time was good Saunders to maintain it Argued That to the making of an Executor besides the Will there was requisite that the Executor should assent and if the Executor refuses 't is as much as if there never had been any There is no Book which proves the Acts of an Administrator void where there is a Will and the Executor renounces Greysbrook and Foxe's Case in Plowden's Com. is that after Administration granted the Executor proved the Will And so in 7 E. 4. 14. in Dormer and Clerke's Case it was held that where there was an Executor who after refused and Administration committed the Administrator should have all the Rent belonging to the Term in Reversion which accrued after the death of the Testator If an Executor be a Debtor and refuses the Administrator may Sue him Which was denied by Twisden because a Personal Action once suspended is ever so Dyer 372. If one makes an Executor who dies and never proves the Will Administration shall be granted as upon a dying Intestate suppose an Executor de son tort had Judgment against him Shall not there be Execution upon a Term as Assets in his hands Twisden It hath been Doubted whether there could be an Executor de son tort of a Term or whether he were not a Disseisor And by the same Reason it may be granted in the present Case for at least the Administrator here is an Executor de son tort before the Refusal Levins contra Anciently Bona Intestati capi solebant in manus Regis as appears in Hensloe's Case in the 9 Co. And since the Power of the Ordinary hath been introduced it was only to grant Administration upon a dying Intestate 4 H. 7. Pl. 10. If the Ordinary cites the Executor to prove the Will and he Renounces 't is said he may grant Administration which implies that it cannot be before So 21 H. 8. cap. 5. is to grant Administration c. upon a dying Intestate or refusal of the Executor the Interest of the Executor commences before the Probat In 36 H. 6. 8. an Executor commanded one to take the Goods and after the Executor refused before the Ordinary who committed Administration and the Administrator Sued the person that took the Goods who Iustified by the Executor's Command and it was held good And a Relation shall never make an Act good which was void for defect of Power And the Court seemed strongly of that Opinion But Serjeant Pemberton desiring to Argue it the Court permitted him to speak to it the next Term. Et sic Adjornatur And afterwards it was Argued again and Judgment was given for the Defendant per totam Curiam Dunwell versus Bullocke IN an Action of
Indicted of Perjury in a voluntary and Extra judicial Oath and cited a late Case where one had stole away a mans Daughter and went before a Justice of the Peace and Swore that he had the Fathers Consent and this in order to get a Licence to marry her and he was Indicted and Convicted thereupon And all the Court said that it was not the course to quash Indictments of Perjury Nusance or the like but to put the party to plead to them Termino Paschae Anno 36 Car. II. In Banco Regis Duncomb versus Walter IN an Indebitat ' Assumpsit by an Assignee of Commissioners upon the Statute of Bankrupts upon Non assumpsit a Special Verdict was found upon which the Case appeared to be thus One Staly was Arrested by an Executor of his Creditor 6 Sept which was before Probat of the Will and within two or three days after he paid 1000 l to the Defendant to whom he stood Indebted in such Sum and after the 18th of September he yielded himself to Prison upon the said Arrest The Question was Whether the Defendant should be obliged to Refund this Money which was paid unto him as aforesaid First Whether the Arrest before the Probat was a good Arrest It was said If an Executor hath a Reversion in a Term upon which a Rent is reserved and Distrains c. he may avow for the Rent before the Probat Vid. 1 Roll. 917. tit Executors where an Executor brings an Action before Probat yet if he shews the Probat upon the Declaration 't is well enough Secondly Whether when he yields himself to Prison it shall not relate to the first Arrest to make him a Bankrupt from that time This depends upon the Statute of 21 Jac. cap. 19. where it is said that in the Cases of Arrest and lying in Prison he shall be adjudged a Bankrupt from the time of his first Arrest Object This Relation doth not prejudice Strangers Answ Dame Hales's Case Pl. Com. 293. If one giveth another a mortal Wound and then sells his Land and the person dies there shall be such Relation as to make the Land forfeit from the first Stroke Note This Case came by Writ of Error out of the Common Pleas where Judgment was given for Walter and the said Judgment was affirmed in this Court principally upon the point of Relation For the Court said that it would be a great mischief if it should relate to the first Arrest as to the payment of Money to Strangers Termino Sancti Hillarij Anno 1 2 Jac. II. In Banco Regis Herring versus Brown Quod vid. ante Michaelmas 35 Car. 2. THe Case upon a Special Verdict was to this effect That J. S. being Seised in Fee had made a Conveyance of his Estate to the use of himself for Life with divers Remainders over to other persons with a power of Revocation by Writing under his Hand and Seal c. Afterwards the said J. S. having a purpose to Revoke the said Uses and make a new Settlement of his Estate he levied a Fine and after the Fine he made a Deed wherein he expressed that he Revoked the former Uses and so proceeded to a new Limitation by that Deed and declared that the Fine by him limited should be to the Vses of the said Deed. The sole Question was Whether the Fine had extinguished his Power and by consequence forfeited his Estate or Whether the Fine and Deed should be taken as one Conveyance and so be a good execution of his Power and new limitation of the Uses And after many solemn Arguments it was Resolved by the Chief Justice Herbert Holloway and Wright that the Fine was an extinguishment of his Power and that the Deed came too late contrary to the Opinion of Justice Withens Vido ante ADDENDA Termino Sanctae Trinitatis Anno 26 Car. II. In Banco Regis Pibus versus Mitford Intratur Trin. 20 Car. 2. Rot. 703. IN an Ejectment the Jury find a Special Verdict to this effect viz. That Michael Mitford was seiz'd of the Lands in question and of divers other Lands in Fee and having Issue Robert by one Venter and Ralph by Jane his second Wife did 23 Jan. 21 Jac. by Indenture Covenant to stand seized of some of the Lands to the use of himself for Life Remainder to Trustees for years for several purposes Remainder to Jane his second Wife for Life Remainder to Ralph and the Heirs Male of his Body And as to the Lands in question he Covenants to stand seiz'd To the use of his Heirs Male begotten or to be begotten on the Body of his second Wife and died And then the Jury made this Special Conclusion If any Use did arise by the Deed to Ralph then they find for the Defendant and if not they find for the Plaintiff This Case was Argued several times at the Bar and now the Judges delivered their Opinions seriatim Wild Justice for the Defendant We are to give our Opinions upon a Deed of Uses made for the Provision of younger Children not otherwise provided for But if the Case were not so It is a safe way when the Words are ambiguous to follow the Intention of the party appearing in the Deed. I shall not maintain that Ralph is a Purchaser and so make this an Executory Use I agree a man cannot either by Conveyance at Common Law by Limitation of Uses or Devise make his right Heir a Purchaser I agree also Griswold's Case in Dyer 156. and if this Case had operated by Transmutation of Possession this Limitation to the Heirs of the Body of the Covenantor had been void and no Use should have risen But here in the Case of a Covenant to stand seiz'd nothing moves out of the Covenantor he retains the Land and directs the Use and keeps sufficient in him to maintain this Use There 's a great difference between a Conveyance at the Common Law and a Conveyance to Uses At the Common Law the Heir cannot take where the Ancestor could not but otherwise it is in case of Uses 2 Rolls 794. and so is Wood's Case 1 Co. 99. a. cited in Shelly's Case This I say to shew that the Intent of the Parties shall be the Guide and that there is a difference between Conveyances at the Common Law and Conveyances to Uses Horwood's Opinion in Hussey's Case 37 H. 8. comes to our Case There 's no great difference between a Covenant to stand seiz'd and a Feoffment to Uses I will not Argue to prove that this Deed shall enure as an Executory Use because 't is against a Rule in Law taken by my Lord Hobart and so Agreed before his time But here Ralph is Tenant in Tail Michael his Father being Tenant for Life Remainder to his Heirs Male begotten on the Body of Jane his second Wife For the Law to preserve this Limitation to the use of his Heirs Male c. will by Implication create an Estate for Life in Michael