Sister and he to enter at the age of one and twenty years and if any of his Sons died before the age of one and twenty years his part should be divided amongst the Sâ—â—vivors and so every one should be heire to the other and all of them came of age and paid the money and it was holden that each of them had an Estate in Fee and not in Taile and Dyer 357. Chick did devise the Fee-simple of a Messuage to A. his wife and after her death to W. his Son which W. was his Heir apparent A. did enter and married again and dyed having Issue by him and adjudged that A. had an Estate for life the Reversion to W. for life the Remainder to A. in Fee and 14 Eliz. a. One seised of Lands in Fee devised them to B. and the heirs of his body and if he died that it should remain to A. in fee yet B. shall have an Estate in Taile by the first words and shall not be restrained by the last words And Trinit 37 Eliz Rot. 382. Bacon against Hill and having three Tenements did devise them to his wife for life and then one of them to each of his three Sons and if any did die his part should remain to the Survivors and if any had Issue and died before he entred his Issue should have it and R. one of the Sons had Issue the wife died and R. died and adjudged that his Issue should have nothing Object But it may be objected that Francis cannot die without heire so long and his Sisters are living and therefore it shall be construed that the Devisor did intend only the heires of his body Answer But it does not appear that the Daughters were of the whole blood to Francis so that they may be heires to him for although where a Brother or Sister is spoken of in pleading it shall be intended of the whole blood because a Brother of the half blood is but half a Brother yet here when the Father onely does call them his Sons and Daughters and is so found by the Iury that they were his Sons and Daughters yet this is no proof that they were of the whole blood for they are daughters to the Father by what ever wife they were had And so I conceive upon the whole matter that the wife does take an Estate for life by the devise and that the Son shall have a Fee-simple but yet subject to this future devise sc if he die without heire that the Wittingb shall have it and so all the Will shall be good except the limitation to the Daughters for their lives and it cannot be intended that the Devisor did intend to prefer the Wittingb being his collaterall Cosins before the Issue of his Daughters which Issues are of his owne body Judgment And before that I argued againe Hillar 14 Jacob. Iudgment was given for the Plaintiff for they all agreed that Francis had but an Estate-tail by these words of the Will viz. If M. A. and A. do out live their Mother and their brother Francis and his heires and Francis cannot die without heire so long as his Sisters are living and therefore the word Heirs shall not be intended Heires generall but heires of his body wherefore Iudgment was entred ut supra c. Mich. 14 Jac. Mason against Manning IN an Ejectment upon a Lease made by John Crooker and Christopher Crooker the two and twentieth of May 14 Jac. of two houses forty acres of Land forty of Meadow and forty of Pasture in S. Needs Habendum from the Annunciation last past for three years The Ejectment was the twenty third of May in the same yeare The Defendant as to the force and armes c. pleaded not guilty and as to the residue he said that Queen Elizabeth was seised in Fee of the Mannor of S. Needs whereof the said Tenements are and time out of mind were parcell and that the Queen the ninth of March in the one and thirtieth year of her Raign by her Letters Patents shewed here under the Exchequer Seal did devise the said Tenements to Robert Croker for life the Remainder to Edward Bett for life the Remainder to Edward Adams for life the Queen dies whereby the Reversion does descend to the King Robert Croker dies and the thirtieth of March 14 Jacob. Edward Bet doth devise the said Tenements to the Defendant from the Annunciation last past for three years whereby he entred and was possessed untill the said John and Christopher Croker did oust him and did disseise the said Edward Bet whereby they were seised in fee by disseisin and made the Lease to the Plaintiff upon which the Defendant claiming his term did enter and did out him and the Defendant was and yet is possessed of the said Tenements the Reversion to Edward Bet for life the remainder to Edward Adams for life the Reversion to the King unde non intendit quod curia domino Rege inconsulto ulterius procedere vellet aut debeat and prayed ayd of the King and did aver the life of Edward Bet. And I conceive that ayd is not grantable in this case 1. Because that it is but an Action of Trespass 4 H. 6. 10. Tenant for life of a Lease from the King shall not have ayd of the King for that no Freehold is to be recovered and he is able to plead to all matters in a Trespass 2. The Defendant shall not have ayd of the King because he is not his immediate Tenant but he may pray in ayd of Edward Bet his Lessor and he of the King 1 H. 4. 18. In a Scire facias to execute a Fine the Tenant said that the Land was given to him for life the remainder to N. in Tail the remainder to W. in fee who was attaint of Treason whereby his remainder came to the King and he prayed ayd c. And the Court said that he ought to pray ayd of N. and he of the King and after he said that W. was also attaint of Treason whereby he had ayd of the King 33 H. 6. 29. In a Trespass where the Defendant justified as Baily of a Hundred to distrain for amercements and prayed ayd of the King and by Prisot he could not have it for the Sheriff is the immediate Officer to the King and to this agrees 11 H. 6. 39. where such justification was for taking of Toll and 9 H. 6. 26. In a Replevin the Defendant made Conusance as Baily of I. who held of the King for life and prayed ayd of the King and adjudged he should not have it for there is no privity betwixt the King and him because he is not immediate and 28 H. 6. 13. A man shall not have ayd of the King and Queen or of the King and his Tenant for life but first of the Queen or Tenant for life and they of the King and a man shall not have ayd of the King but where he is Baily or Servant
But in our Case the act being done by the issue in Tail himself shall not enable him to make voyd the Lease made by his Mother no more then if a Tenant in Tail makes a Lease for years and levies a Fine with proclamations to the Donor and dyes having issue yet the Donor shall not avoyd the Lease Vid. Lord Aberganies Case Cook 6 Rep. And although that the Wife were a Ioyntress within the Statute of 11 H. 7. yet is this Lease clearly out of the Statute because that it is no bar or discontinuance to the Estate in Tail as it is in Sir George Browns Case Cook 3 Rep. for this Lease was voydable by the issue unless he had bar'd himself by his own Fine And I conceive this Lease is also good against the Devisee for when a Tenant in Tail makes a Lease for years or grants a Rent common c. or acknowledgeth a Statute or doth in some other manner charge the Land this is a good Lease Grant or Charge to binde the Tenant in Tail and all other except the issues in Tail and those in Reversion And the reason of this is because the Statute of Westminster 2. cap. 1. that was made to avoyd such charges does not ayd any persons except the issues in Tail and those in Remainder and Reversion And therefore if Tenant in Tail grant a Rent or acknowledg a Statute and dyes the issue shall not be charged with it and so shall his Feoffee but if the Tenant in Tail himself after such charge infeoffs another and dyes the Feoffee shall hold the Land charged and if a Tenant in Tail makes a Lease for years and dyes and the issue doth accept the Rent the Lease is made good and is absolute but if he dyes seised of the Estate-Tail the issue hath his election either to make the Estate good by his acceptance of the Rent or to avoyd the Lease by his entry and if he infeoff a stranger before entry the Feoffee shall never avoyd the Lease and if the issue doth accept the Rent he maketh the Lease good for his time and as the Feoffee of the Tenant in Tail and all those who come to the Land by any assurance made be the Tenant in Tail whereby the Estate in Tail is barred or discontinued shall hold the Estate charged with the Leases and charges made by the Tenant in Tail so shall all those in like manner who come to the Land under the said Tenant in Tail although the Estate-tail doth remain not barred or discontinued saving the issues in Tail who are ayded by the Statute of Westminster the 2. And therefore if Tenant in Tail grants a Rent in fee and takes a Wife and dyes the Wife shall hold charged with the Rent and so if a woman Tenant in Tail grants a Rent and marries and hath issue and dyes the Husband being Tenant by the curtesie shall hold the Land charged for they are not ayded by the said Statute and so if Tenant in Tail grants a Rent in Fee and makes a Lease for three lives warranted by the Statute of the 32 of Hen. the 8. and dyes the Lessee shall hold the Land charged Cooks Rep. 9. Count. Bedfords Case And in the said Case of the Lord Abergeveny it is said that the surviving Ioyntenant by acceptance of the Lease hath deprived himself of the way and means of avoyding the charge for vis accrescendi was the onely means of avoyding it and the right of survivor is gone by the Release And so in our Case the issue in Tail might have avoyded this Lease by his entry but he hath quite barred himself by his Fine And as to the Statute of the 11 H. 7. cap. 20. I conceive that nothing is prohibited by this Statute but onely such Acts as are a bar of the Estate-tail or a discontinuance thereof for so are the words of the Stature viz. If any woman shall discontinue alien release or confirm with Warranty c. And in Sir George Browns Case in Cooks Repor fol. 350. it is there argued Whether a Discontinuance without Warranty be within that Statute but it was resolved that these words with Warranty doe refer onely to Releases and Confirmations which make not discontinuance without Warranty for the intention of the Statute was not onely to prohibit every bar but also every discontinuance but here in this case there is no bar or discontinuance for the woman hath made a Lease for years rendering Rent by which the Estate-tail is neither bound nor discontinued but she remains Tenant in Tail as she was before and so dyed seised of such Estate and therefore if it had not been for the Fine levyed by the issue in Tail himself she might have entered and have avoyded the Lease and this is not like the Case there put by Anderson where Feme Tenant in Tail in Ioynture within the Statute does accept a Fine sur conusans de droit come ceo c. and therefore does grant and render the Estate for 1000 years for though this be no discontinuance of the Estate-tail yet is it a bar of the Estate during the time And Hillar 22 Jacob. I argued this Case again and all the Court viz. Doderidge Jones and Whitlock did agree That the issue in Tail was barred by the Fine to avoyd this Lease and that although the Estate-tail was barred yet is it not extinguished but remains in esse to support the Lease so long as any issue in Tail does remain alive and so they agreed the Lease to be good Wherefore Iudgment was given for the Plaintiff Judicium George Bishop of Chichester Plaintiff John Free-land Defendant 1 Caroli Rot. 607. THe Case was That a Bishop was seised in fee of a Park to which there was the office of a Keeper belonging with a fee of five marks with a Livery granted from time to time by the Bishop And the Bishop does grant the said Office together with the fees necnon cum pastura pro duobus equis in eodem Parco which Grant was confirmed by the Dean and Chapter The Bishop dyes and another is made Bishop And whether this Grant was good to binde the Successor was the Question And I conceive that this is a good Grant against the Successor and will binde him And first I conceive it will not be denyed but that if a Bishop hath a Park he by the Common Law may grant the Office of the Keeper of that Park to whom he will with such fees and wages and for such an estaâ—e as he will and this being confirmed by the Dean and Chapter is good to binde the Successor and therefore it is to be considered Whether any alteration of the Law be made in this point by reason of any Statute In the Bishop of Salisburies Case Cooks 10 Rep. it is there resolved that by the Statute of the first of Elizabeth Bishops are thereby generally restrained from making any estate or interest of
James of a house in the Parish of St. Mary Abchurch in the Ward of Candlewick-street Habendum from Michaelm last past for three years and layd the Ejectment to be the 28 Octob. in the same year The Defendant pleaded Not guilty And the Iury found that William Say was seised in Fee of the said Messuage and of two other Messuages in the Parish of St. Johns in Walbrook London and held them in Socage And that the 8 Octob. 1562. the said William having issue Francis his Son and Margaret Agnes and Alice by his Will in writing did devise the said Messuage in these words I bequeath to Francis my Son all my three Houses after the death of my Wife Barbara and his Mother and if Margaret Agnes and Alice and either of them do out-live their Mother and their Brother Francis and his Heirs then they to enjoy the three Houses for their lives and the three Houses then I give freely to my Sisters Sons Iohn Wittinbury and Roger Wittinbury and they to pay unto the Wardens of the Batchelors Company of the Merchant-Taylors 6 l. 10 s. yearly to be given to the poor and needy Brethren of the same Company for ever and if the said Iohn and Roger and their Successors do deny the said payment of 6 l. 10 s. it shall be lawful that the said Wardens to enter into the three Houses and to discharge them for ever William Say the Devisor dyes Barbara enters Francis Agnes and Alice dye without issue Barbara dyes Margaret enters John Wittinbury dyes without issue Roger Wittinbury dyes without issue and the Lessor is Cosin and Heir to him viz. Son of Margaret Pierson Sister of the said Roger. The 18 of August 13 Jacob. Margaret dyed seised having issue John Savage her Son and Heir who entered which Son the 17 February 13 Jacob. did infeoff Edward Jackson in Fee who the second of September 13 Jacob did infeoff Richard Slydhurst in Fee who the third of September 13 Jacob. did make the Lease to the Defendant for four years who entered upon whom the Lessor did enter and made the Lease to the Plaintiff upon whom the Defendant did enter And prayed the Opinion of the Court c. And I conceive Iudgment ought to be given for the Defendant But first as to the Question that hath been made scil What Estate John and Roger Wittingbury shall take if they shall take any Estate at all by this Will I shall not argue for I agree that if they have any Estate it is a Fee-simple in respect of the continual and perpetual charge imposed upon them for the payment of 6 l. 10 s. to the Wardens c. for that is to have a perpetual continuance in respect of the persons to whom it is to be payd scil the Poor And also the persons to pay are the two Wittingburies and their successors who in the Exposition of the Will shall be taken for their Heirs and Assigns and also in respect of the limitation of the payment scil for ever which in a Will makes a Fee-simple and â—â—â—â—s much as the charge is to continue for ever it follows also that the Estate ought to continue for without the Estate the charge cannot be But I conceive that John and Roger shall take nothing by this will or at least that they shall take but a future Estate to begin after the death of Francis without Heir and then their time will never come for John Savage under whom the Defendant doth derive his Estate is Heire to Francis and therefore the Plaintiff nor his Lessor being Heire to Robert Wittingb the Survivor cannot have this house And to prove this here is an Estate limited by expresse words to Francis and his Heirs and no apparent intent by the Devisor that the word Heirs shall be restrained to the Heirs of his body unlesse by reason of the limitation of the Remainders afterwards which cannot be as hath been said if Francis had a Fee-simple But as to this I say that the same reason may be given when a man deviseth Land to A. and his Heires and if he die without Heire that it shall remain to B. and his Heires in which case if the Devise to A. shall be restrained to an Estate in Taile the Remainder to be is good but no such intent can be collected against expresse words and therefore the Remainder is utterly void as in 19 H. 8. 8. B. where the Rule is given that when the intent of the Testator does not agree with the Law his intent shall be void and this is a certain Rule And West 2. cap. 1. where it is provided Quod voluntas donatoris observetur yet it ought alwaies to agree with the Rules of Law as is proved by the 8. Assise 33. where was a Gift in Taile to two and if one dies that the Survivor shall have all to him and the heirs of his body now doth the Law say that they have severall Inheritances but the will of the Donor was that the Survivor should have all which being repugnant to the Rule of Law was adjudged to be a void Clause 35 H. 8. 6. Estates 75. Estates given to the husband and wife for their lives the Remainder to the heires of their bodies is an Estate-taile executed notwithstanding the expresse will of the Donor because an Estate for life and of Inheritance cannot be distinct in one and the same person without a mean Estate in another So that in Wills if the intent be against Law they are void And so is it if the intent be ambiguous and not manifestly to be collected out of the words of the Will And in our Case no manifest intent does appear to make the Estate of Francis an Estate in Tail Câ—ke 6. Rep. Wildes Case One devised land to A. for life the Remainder to B. in Taile the Remainder to R. and his wife and after their deaths to their Children who then had two Children the Devisor dies and A. dies and B. dies without Issue and and it was adjudged that the Children of R. and his wife should have only an Estate for life because that by Iudgment of Law they have but an Estate for life and if R. and his wife should have an Estate in Taile it ought to be by the intent of the Devisor which intent ought to be manifest and certain and so expressed in the Will and in this case no such intent does appear for perhaps his intent was to accord with the Rule of Law 15 16 Eliz. 9. a. A. having three Houses having three Sons and a Daughter did devise to B. his first Son a House paying ten pounds to his Sister and he to enter after the death of the wife of the Devisor and did devise to his second Son another Houses paying to the Daughter ten pounds and he to enter at the age of one and twenty years and did devise the third House to the third Son paying ten pounds to his
Estates yet in Wills the intent of the Devisor is sufficient either to limit the Estate or to describe the person that shall have it And therefore if Land be given to one in perpetuum if it be by Grant or Feoffment yet there passeth but an Estate for life but if it be given by Will it is an Estate in Fee and 4 Ed. 6. Estates 78. If one deviseth his Land to another paying 10 l. to his Executors or any other person the Devisee hath an Estate in Fee so if one deviseth his Land to give or dispose of or sell at his will this is a Fee-simple 19 H. 8. 96. 7 Ed. 6. Devise 38. And the reason in all these cases is because that by these words the intent of the Devisor doth appear that a Fee shall pass and therefore the defect of words shall not defeat his intent And as the intent is sufficient without apt words to make an Estate so is it also to describe the person who shall take the Devise although he be not formally named according to the precise rule in Grants as in 21 R. 2. Devise 17. where one devised Land to one for life the remainder to another for life the remainder to the Church of St. Andrews in Holborn and it was adjudged that after the death of the Devisees for life the Parson of the Church shall have the Land for in as much as the Church was not capable it shall be taken that the intent of the Devisor was that the Parson who is as it were the Father of the Church and so the Head of it should have the Estate And in the 13 H. 7. 17. In every Devise the intent of the Devisor shall be taken for if a man deviseth all his goods to his Wife and that after his decease his Son and Heir shall have his House although that no Devise of the House be made to the Wife by express words but by implication because the Heir is not to have the House during the Wifes life yet because the intent of the Devisor was that the Son should not have it during the life of his Wife she shall have the House for her life To which all agreed Then in our case 1. The Devisor willeth that a Chaplain shall celebrate for his Soul and that he shall have eight Marks out of his Tenements yearly for his stipend but if he had stayed there the Devise should have been voyd for the Chaplain is not such a person as may take these eight Marks as a Rent and therefore he goes further and first he limits what service the Preist shall do and this he appoints to be done by the disposition of the Parson 2. He doth dispose of the residue of the profits of the Tenement for such a time viz. until R. shall be 24 years of age and be a Priest and doth devise that he shall be preferred to the Chantery before any other if he will accept it and if not that he shall have nothing 3. He makes provision for the perpetual continuance of the Chaplain in these words scil That the Parson and four of the best of the Parishioners shall present and finde a Chaplain to perform the said Chantery for ever de tenementis meis superius non legat which is the said Tenement out of which the said eight Marks are limited to be payd 4. He doth inflict a penalty upon the Parson if the Chantery should be voyd scil That the other Land devised by him to the Parson shall go to the Wardens of L. Bridg for the reparation thereof 5. He makes a perpetual disposition for the residue of the profits of the Tenement viz. That they shall be put into a Chest under the custody of the Parson and four of the Parishioners to buy ornaments and Books for the Church And these parts of the Will being well considered as I conceive it will be clear that the intent of the Devisor was that the Parson should have this Tenement for here the main scope of his Will is that a Chaplain shall be maintained perpetually and that he shall have eight Marks stipend out of that Tenement and that it shall be provided and found by the Parson and four of the Parishioners and that the residue of the profits shall be bestowed by them to buy ornaments and Books for the Church so that a perpetual charge is imposed upon the Parson scil to finde the Priest and to buy ornaments c. and this charge is to be defrayed with the profits of the Tenement and that can be done by none but by him that shall be owner of the Tenement and therefore it follows that the Parson shall have the Tenement And that such implication in a Will is sufficient to make an Estate is proved by the 15 H. 7. 126. If one devises his Land to be sold for payment of his Debts the Executor shall sell the Land for because the charge to pay Debts lies upon the Executors his intent shall be taken to have them sell the Land and 22 and 23 Elizab. Dyer 171. A man seised in Fee of divers Mannors doth devise them to his Sister in Fee except my Mannor of D. which I do appoint to pay my Debts and makes two Executors and dyes and one Executor dyes and the other sells thâ— Mannor and adjudged good for so his intent shall be taken and not to relinquish it to his Sister and 19 H. 6. 24 and 25. and 1 Edw. 6. Devise 36. If one devise that his Executor shall sell his Land this is no devise of the Land to them but an authority for they may perform the Devisor to sell the Land although they have no Estate therein and the Vendee shall be in by the Devisor but if one devise that his Executors shall grant a Rent-charge out of his Land or that they shall give the Land in Fee or in Tayl to I. S. this is an implyed Devise to them for otherwise they cannot perform the intent of the Devisor Trin. 9 Eliz. 516. and so in the 40 Assis 26. One did devise his Land in L. to A. and his Heirs to finde twelve Marks for two Chaplains and grants that the Parson and the Parish may distrein for this if it be behinde and there it is debated whether the King shall have the twelve Marks or not and it is agreed there that the Chaplains have no Estate in it because they are removable at the will of A. but because the Distress is given to the Parson who is perpetual it was adjudged that the King shall have the twelve Marks whereupon I do observe that by this Distress limited to the Parson and the Parishioners the twelve Marks were vested as a Rent in the Parson and so made it a Mortmain Object But it may be objected That the last clause in the Will for the disposing of the residue of the profits does go onely to the Land devised to Wardens of the Bridg. Answer But this
of the most and the rest of all my Land there which is Freehold I give to Henry and Michael upon condition that if they sell it to any but to Matthew my Son then he to enter as of my Gift and then he declares That of all these Bequests his Sons shall bear part and part-like out of all his Copyhold Lands and Free to pay to Elizabeth his wife for her Dowry 40 l. a year during her life and that Son which shall refuse to bear his part shall not enjoy any part of his Bequest but it shall be to the residue c. Sir William Lock dyes Henry and Michael enter and pay their parts of the 40 l. Henry dyes and then Michael dyes And now the Question is Whether the Defendants being Heirs of Michael shall have the Land or the Plaintiffs who claim under the Devisor And for the better arguing of this Case I will first observe that here is not any express words of limitation of an Estate to make any greater Estate to pass then an Estate for life and then I will shew that here are no words in any part of this Will to signifie any certain intention in the Devisor to make an Estate of Inheritance to pass by this Devise And as to the first the Devise is onely to his two sons viz. The rest of all my Houses and Lands there which is Freehold I give to Henry and Michael Lock and these are all the words of limitation of the Estate and these without question in a Deed or Feoffment will not make a greater Estate then for life And so is Littleton 1. If one purchase Land in perpetuum or to him and his Assigns in perpetuum this is but an Estate for life because it wants these words his Heirs which words make the Inheritance in all Feoffments and Grants and this is an infallible Rule in Grants unless it be in some special Cases as in Frankmarriage or Frankalmoine which being words of art do pass an Inheritance with these words Heirs And in Cases of Grants no intention of the Grantor although it be apparent in the Grant will make an estate of Inheritance to pass as in 19 H. 6. 73. 20 H. 6. 36. A Gift to B. and C. haeredibus with Warranty to them and their Heirs is no Fee-simple because the words of limitation are incertain to whom haeredibus shall be referred and so all one as if it were omitted and then the clause of Warranty although it does declare a certain intent to give an Estate in Fee will not amend the matter in a Grant And so in the 1 Rep. Shelleys Case if one gives Land to one liberis or eitibus suis or semini suo it is but an Estate for life and not an Estate in Tayl yet there is an apparent intent but that will not suffice in a Grant But I agree that in Case of a Devise although the apt words to make an Estate of Inheritance to pass are omitted yet if the intent of the Devisor does appear by any express matter contained in the Will an Estate of Inheritance shall pass for it is sufficient to pass the Inheritance And so Litt. 133. 6. 19 H. 8. 9. 6. If one deviseth Land to another in perpetuum the Devise by these words shall bar an Estate in Fee so if one devise Land to another to give dispose or sell at his pleasure this is an Estate in Fee-simple 19 H. 8. 9. 6. 7 Edw. 6. B. But yet the Law hath restrained such intent For first it ought to be agreeable to Law and not repugnant to it for although in Scholasticas Case in the Comment it is said that a Will is like to an Act of Parliament yet a Will cannot alter the Law or make a new form of an Estate which is not allowed by the Rules of Law as an Act of Parliament is and so adjudged in the Common Bench Hillar 37 Eliz. between Jermin and Ascot Cooks 1 Rep. 85. in Corbets Case That by a Devise a man cannot give an Estate and determine part thereof by a condition and make the residue to continue And if Land be devised to one in Tayl he cannot determine the Estate as to the Devisee himself and yet preserve the Estate to the issue as was endeavoured in this Case And 28 and 29 H. 8. Dyer 33. If Land be devised to one in Fee and if he does not perform such an Act the Land shall remain to another the remainder is voyd for no such remainder can be limited by the Rules of Law This intent ought to be exprest in the Will and collected out of the words of the Will and cannot be averred or supplyed by any forreign matter as in Matthew Mannings Case 8 Rep. 95. 6. Always the intention of the Devisor expressed in his Will is the best Expositor Director and Disposer of his words And Lord Cheyreys Case 5 Rep. 68. Sir Thomas Cheyrey devised certain Land to Henry his Son and the Heirs males of his body the remainder to Thomas Cheyrey of Woodley and the Heirs males of his body upon condition That he or they or any of them shall not alien and the Question was whether there could be an averment that the intent of the Devisor was to restrain H. and his Heirs from aliening and resolved that no such averment could be received for construction of Wills ought to be collected out of the words of the Will The intent of the Devisor ought to be manifest and certain and not dubious as in a Devise of Land to one for ever here the intent is to give an Estate in Fee-simple for no other Estate can continue for ever so if the devise be to one and his Heirs and if he dyes without Heir that it shall remain to another his intent â—y tâ—ars that the word His in the first Devise shall be taken for the Heirs of his body for the Law will sooner presume him to be dead without issue then to be dead without Heir And now to examine our Case with the Rules of Law There are three clauses in this Will as I conceive upon which the pretences of the Defendants are founded to have an Estate in Fee pass by this Devise to which I shall make answer severally The precedent clause to the Devise And as touching my Lands at T. my Son Matthew is joyned Purchaser with me of the most and the rest of all my Houses and Lands there which is Freehold I give to Henry and Michael Lock c. And as to this I conceive that here is no colour to enlarge the Estate to the Devisees but this clause is onely a description of Land which he does not intend to devise and which in truth he cannot devise because that Matthew ought to have it by survivor and is principally named therein because of preventing any question between Matthew and the two Devisees after his death for otherwise they might perhaps have pretended that all
the Land in T. should pass to them especially because they were purchased as it might very well be presumed with the mony of the Devisor and he was reputed owner thereof but these words make no Declaration as to the Estate which he intends to demise to Henry and Michael The Condition or limitation annexed to the Devise in these words Upon condition that if they sell it to any man but to Matthew Lock my Son then he to enter upon it as of my gift by this my Will and I conceive that this clause does not shew any intent of the Devisor to enlarge the Estate first limited to Henry and Michael or to give an Estate in Fee to them for it is not if they alien in Fee or in Tail or if they or their Heirs do alien which words or any words to such intent would have declared a manifest intention that the Devisees should have a Fee-simple but here an alienation in general onely is restrained which ought to be taken for a legal alienation and such a one as they may make by reason of the Estate devised to them And that it shall be so intended first it is to be considered that this condition is a restraint annexed to the Estate and is as a Convinct to the Estate and therefore cannot be properly more large then the Estate it self for it is a Rule that every restraint or exception in an Assurance ought to operate upon the Estate or the thing before granted as in the Comment 370. Zouches Case An exception is an exemption of that contained in the general words and if it be not contained in the generality it can be no exception in the specialty and therefore if one doth lease W. acre excepting B. acre the exception is vain This exception of alienation is more proper to be annexed to an Estate for life then in fee for he who makes a Lease for life or years may restrain the Lessee by condition that he shall not alien but the Feoffor cannot restrain the Feoffe from aliening as in Littleton 84. If a Feoffment be made on condition that the Feoffee shall not alien the Condition is voyd for the Feoffee hath power to alien to whom he will for if that condition were good that would take from him the power which the Law gives him which would be against Reason but if the Condition be that he shall not alien to such a person naming the person or any of his Heirs or his issues this is a good Condition because it take not away the power to alien in Fee And Vernons Case 4 Rep. foâ— 3. An Estate in Fee conveyed by the Husband or his Ancestor to a woman for her Ioynture is not a Ioynture within the Statute of 11 H. 7. which restrains alienations made by women for to restrain such an Estate as cannot be aliened is repugnant and against the Rule of Law and therefore not within the intention of the Act. But it hath been objected on the other side 1. Object That this Condition is not voyd because it doth not restrain all their power but leaves them to the liberty to alien to Matthew 2. If the condition be voyd yet it is sufficient to declare the intent of the Devisor that a Fee should pass And as to the first I conceive that the condition is voyd Answer for to restrain generally and that he shall not alien to any but to J. S. is all one for then the Feoffor may restrain him from aliening to any except to himself or such other person by name whom he may well know cannot nor never will purchase the Land So that this condition shall take away all his power and shall make a perpetuity in the Feoffee which is quite contrary to Law neither is there any authority to warrant this restraint for Littleton leaves the Feoffee at liberty to alien to any except to such a one in particular And as to the second I do agree That if the condition to restrain the alienation had been expresly to restrain the Devisees and their Heirs or to have restrained from aliening in Fee or in Tayl or for anothers life although the condition had been voyd yet had it been sufficient to have shewn the intent of the Devisor and to have caused an Estate in Fee to have passed And therefore I do agree to the case in the 9 Rep. fol. 127. where one devised to his Wife for life and after her decease his Son William to have it and if William shall have issue male that he shall have it and if he have not issue male his Son S. shall have it and if he hath issue male his Son shall have it with like Remainders to his other Sons and my Will is If any of my Sons or their Heirs males issues of their bodies alien then the next Heir to enter c. And it was resolved That the Son should have an Estate in Tayl by this Devise First by reason of these words If he have no issue male which is as much as to say iâ— he dye without issue male Secondly because he and his Heirs males are restrained to alien for every restraint especially in Wills does imply that the party in case he were not restrained had power of the thing restrained And so Bakers Case Hillary 42 Eliz. Rot. 143. A Devise to the Husband and Wife the Remainder to their two Sons upon condition that if they or their Heirs go about to alien c. is a Fee-simple also for the Heirs being restrained to alien does shew fully that the Heir shall have the Lâ—nd for otherwise he cannot alien it But here in our condition there are not any words to shew the intent of the Devisor that an Estate in Fee shall pass but the Devisees are restrained to alien generally which as already I have shewed is more agreeable to an Estate for life then an Estate in Fee-simple at the least he does not shew any certain intent that the Devisees shall have an Estate in Fee but that remains dubious and therefore the safe way is to take the same according to the Rules of Law The third clause to explain the intent of the Devisor in this case is the clause of the Charge imposed upon the Land by the Devisor viz. Item All the Lands I have given joyntly betwixt my Sons is that they shall bear part and part-like going out of all my Lands as well Free as Copyhold to pay to my Wife Elizabeth for Dowry 40 l. every year during her life out of all my Lands c. And I conceive that this clause makes nothing as to the enlargement of the Estate and yet I do agree 29 H. 8. Testament 18. 4 Ed. 6. Estates 78. That if one devise Land to another paying 20 l. or another sum in gross this is a good Devise in Fee but it is otherwise when the Land is devised to one paying an annual Rent or bearing an annual charge with the
profits thereof as in Colliers Case 6 Rep. where one devised Land to his Wife and with the profits that she should bring up his Daughter and that after her death the Estate should remain to his Brother paying to other persons 40 s. and the value of the Land was 3 l. per annum and agreed there that the Brother had a Fee-simple and this diversity was resolved in that case That if the Devise had been to the Brother to the intent that he should maintain his Daughter with the profits or pay out of the profits thereof so much to one and so much to another that this is but an Estate for life for he is sure to have no loss so is it if it be to pay certain sums yearly under the value of the Land for he may pay it out of the profits and is sure to be no loser And this is in effect our very case For first the Charge is imposed for Dower which cannot be intended to exceed the annual value of the Land Secondly it is to be payd out of the Land and therefore there is no charge imposed upon the person of the Devisee but onely upon the Land devised to him so that he takes the Land with this charge and when his Estate determines in the Land yet the charge does always remain upon the Land and the Devisee is discharged thereof and therefore this charge may as well be if he have an Estate for life as if he have a Fee-simple And as to that in Borastons Case 3 Rep. fo 20. b. between W. Allock and Hammond where a Copyholder devised his Land paying to his Daughter and to each of his younger Sons 40 s. within two years after his death and surrendered accordingly and dyed and agreed that the Devisee had an Estate in Fee although the annual profits exceeded the mony that was to be payd and the Reason is plain for it is not limited to be payd out of â—â—e Land or profits but is a payment in gross and it may happen that the Devisee may dye before he can receive so much of the profits And afterwards viz. Trinit 17 Jacob. All the Barons scil Tanfield Bromley and Denham delivered their Opinions severally That Henry and Michael Lock had an Estate onely for their lives because there is no express words in the Devise to make any greater Estate to pass and the condition or clause of the charge imposed by the Wtill does not necessarily imply that they should have a greater Estae then for life for such Estate may satisfie both these clauses as well as an Estate in Fee and the condition is more proper to be annext to an Estate for life then in Fee Judgment Wherefore they resolved That Iudgment should be given for the Plaintiffs but because Sir Thomas Muschamp one of the Plaintiffs dyed hanging the Action no Iudgment could be enter'd Trinit 16 Jacob. Wood against Searl and Jeo IN an Action of Trespass for that the Defendants the 16 of December 15 Jacob. ten Hides of Leather of the Plaintiffs amounting to the value of 10 l. at Tiverton did take and carry away ad damnum 20 l. c. The Defendants as to the force and arms pleaded Not guilty and as to the residue they said that the City of Exeter is and time out of minde was an ancient City and that within the said City there is and for all the said time was a Society of the Art of Cordwainers incorporate by the name of The Master Assistants Wardens and Commonalty of Cordwainers of the City of Exeter and that the said Master Assistants and Wardens have used for all the said time to make By-laws for the government and profit of the said Society and to impose reasonable Fines and punishments upon the breakers thereof And that the 24 of July 44 Elizab. the Master Assistants and Wardens did ordain That no person Burgess or Foreigner not being a Brother of the said Society should make sell or offer to sell or procure to be sold within the aforesaid City of Exon the County or liberty thereof any Boots Shooes Pantofles Pumps or Startops or any other wares belonging to the said Art under pain of forfeiting to the said Master and Wardens for the time being for every offence such sum not exceeding 40 s. as shall be assessed by the Master Wardens and Assistants or the greater part of them and that if any person of the said Society or any other exercising the said Art or any thing concerning the same inhabiting within the said City or the County or liberty of the same who shall break the said Order shall refuse to pay such sum as shall be assessed upon true proof first thereof had of the breach of the said Order that it shall be lawful for the said Master Assistants and Wardens or any three of them taking with them a Constable Bayliff or Serjeant of the Mace or other fit Officer of the Kings to enter into the House Booth Shop Warehouse or Cellar of such person so refusing and there by the discretion of the said Master Assistants and Wardens or the greater part of them to distrain any of their goods then being within the said Houses c. for the said sums forfeited so that it doth not exceed the treble value of the sums forfeited and to detain the same Yet nevertheless if the owner within thirty days shall satisfie the penalty then they shall redeliver the goods And if he doth not satisfie that then the said Master Wardens and Assistants or the greater part of them have power to appraise the goods taken by the oath of six persons and thereupon to sell them and to restore the surplussage to the owner And the Defendants said That at the said time in which c. and time out of minde there was and ought to be a Master two Wardens and twelve Assistants of the said Society within the said City and no more and that the said Edward the sixth of December and before and ever since was Master and the said William and Thomas Payn were Wardens That the 29 of July 15 Jacob. the Plaintiff at the said City then being an Inhabitant within the said City and no Brother of the said Society did make divers Shooes and them there to sale did expose and that the said Master and Wardens and one J. G. T. K. R. J. W. T. K. T. C.G. and J. G. being seven and the major part of the said Assistants the thirtieth of July the 15 Jacob. did impose upon the Plaintiff 33 s. 4. d. for the said offence And they said further that the Plaintiff committed the like offence the seventh of October 15 Jacob. and 33 s. 4 d. imposed by the Master Wardens and Assistants and the like offence the 20 of Novemb. 15 Jacob. and 33 s. 4 d. imposed by the Master Wardens and eight of the Assistants and the like offence the second of December 15 Jacob. and 33 s. 4
REPORTS OF THAT GRAVE and LEARNED JUDGE Sir JOHN BRIDGMAN KNIGHT Serjeant at LAVV SOMETIME CHIEF JUSTICE OF CHESTER To which are added Two Exact Tables the one of the Cases and the other of the Principal Matters therein contained LONDON Printed by Tho. Roycroft for H. Twyford Tho. Dring and Jo. Place and are to be sold at their Shops in Vine Court Middle Temple the George in Fleetstreet and at Furnivals Inn Gate in Holborn 1659. TO THE STUDENTS OF THE COMMON LAWS OF ENGLAND Gentlemen THese Ensuing Reports being brought to me in Manuscript in the peculiar Dialect of our Common Law I discovered the same to be the Hand-writing of that late Judicious and Honorable Person Sir John Bridgman Knight deceased Serjeant at Law heretofore Chief Justice of Chester the memory of whose great Learning and profoundnesse in the Knowledge of the Laws of England still liveth although himself be dead and thereupon bestowed some pains in the perusall thereof wherein I found many things in my weak apprehension worthy of observation which induced me to encourage the Translation thereof into our Native Idiome the Language enjoyned by the present Authority onely to be Used in things of this Nature whereby the same might become of publike Use if any well acquainted with the Authors Character shall doubt the Credit of this Copy they may have the sight of the Originall the better to satisfie themselves by the help of the Stationer The Cases are not placed in time as the same were adjudged but Printed in that order as they were found under the Authors own Hand For this Defect it is hoped that the Table may make amends which you will finde to be a perfect Repertory as to each materiall thing contained in this Book What faults have escaped the Presse will lye in the power of the judicious Reader to correct Mr. Bracton in his first Book Cap. 2. saith Si aliqua nova inconsueta emerserint quae prius usitata non fuerint in Regno Si tamen similia evenerint per simile judicentur cum bona sit occasio a similibus procedere ad similia Let this serve to Apologize for such encouragement as hath been given by me for the publishing of these Reports I having no other aim herein then the Publike good Farewell J. H. Middle Temple 5 Nov. 1658. THE NAMES of the CASES A ALlens case 13 Iac. 39 Ashfields case 14 Iac. 99 Adams case 15 Jac. 107 Agards case 15 Jac. 130 B Bassets case 8 Bishop of Chichesters case 1 Car. 29 C Crockers case 27 Coopers case 60 Crawleys case 13 Jac. 64 D Dawtrees case 18 Jac. 4 Davisons case 5 E Evans case 16 Jac. 118 F Frossets case 14 Jac. 49 G Garths case 22 Gouges case 12 Jac. 52 H Harris and Lewess case 56 Hollands case 69 K The King against Sir John Byron 23 The King Allen against Newton 15 Jac. 113 The King Parker against Webb 14 Jac. 120 L Loyds case 56 Lightfoots case 14 Iac. 88 Lees case 15 Jac. 116 Lingens case 15 Jac. 128 M Moores case 6 Meskins case 16 Mills case 63 Masons case 14 Jac. 87 Mandes case 13 Jac. 92 Mittons case 123 Muschamp and Lock against Blewit Sampson and Jenny c. 132 N Norris case 13 Iac. 47 Newshams case 14 Iac. 100 P Pets case 17 Iac. fo 1 Ponesleys case 18 Iac. 12 Perimans case 14 Sir Thomas Palmers case 11 Iac. 46 Pensons case 66 Parkers case 14 Iac. 89 Perryns case 12 Iac. 90 R Robinsons case 13 Iac. 79 Robinson against Greves 12 Iac. 81 S Samborns case 19 Iac. 9 Smalmans case 13 Iac. 42 Smith for the King against Boynton 13 Iac. 48 Smiths case 13 Iac. 59 Standishes case 14 Iac. 103 Southerns case 13 Iac. 125 T Townleys case 35 U Vanlores case 14 Iac. 58 W Whittons case 32 Weals case 14 Iac. 60 Webbs case 13 Iac. 84 Webb and lucks case 14 Iac. 110 Woods case 16 Iac. 139 THE REPORTS OF Serjeant BRIDGMAN Hill 17 Jac. Rotulo 170. Petts against Browne A Man is seised of Land in Fee and having two Sons doth devise his Land to his younger Son and his Heirs and if he dye without Issue living the eldest Son then the elder shall have the Land to him and his Heirs the Devisor dies the younger Son had issue a Daughter that dyed without issue then the younger Son suffers a common recovery with Voucher to the use of him and his Heirs and after deviseth to another and his heirs and then dies without issue living the elder Son Whether the Devisee or the elder Son should have the Land was the question And the Counsell for the Devisee raised three points 1. Admitting that these words in the Devise were omitted viz. living the eldest Son whether the younger Son had an Estate-taile or not 2. Whether these words do make such alteration of the Estate as to make the Estate a Fee-simple determinable upon this contingency viz. if he die without issue living the elder Son 3. Admitting that there were such a Fee in the younger Son yet whether this Estate devised to the eldest Son be not destroied by the recovery And as to the first point it was argued that if these words of limitation living the elder Son had been omitted the younger son had had an Estate-tail by this Devise the remainder in fee to the eldest Son For although the Devise to the younger Son was to him and his heirs which in case the Devise had stayed there had made a very good Fee-simple to the younger Son yet when the Devisor goes and declares further and deviseth that if he dye without issue that the elder son shall have the Land this last limitation if he dye without issue doth restrain the generality of these words his heirs to the heirs of the body of the younger Son only so that the last Devise to the eldest Son doth declare and exemplifie whâ—t kind of heirs the Devisor intended in the first Devise to the youngest Son and in the 5 H. 6. and the 5. where Land was given to R. and K. his Wife and their heirs and to the heirs of the said R. if the heirs of the said R. and K. his wife issuing should dye and this was adjudged a good Estate in tail And there it was said by Hall that if Land be given to a man and his Heirs for ever Et si contingit ipsum Obire sine haeredibus de corpore suo this is a good estate in tail and in the 19 H. 6. 74. by Vampage If I give land to another and his heirs for ever in the beginning of the Deed and then after I say Quod si contingat that if he die without heirs of his body that it shall remain to another in this case the Law intends by the Si contingat that it is but an Estate-tail And in the Book of Assises 14. Land was given to B. and his heirs to have and to hold to
him and his heirs for ever if B. shall have issue of his body and if he die without heirs of his body that the Land shall revert to the Donor and his heirs B. had issue which died without issue and it was adjudged that B. had but an Estate in tail and because he died without heirs of his body it was adjudged that the Donor should recover against the collaterall heire of B. And if the Law be so in Deeds or Grants executed in the life of the Donor a fortiori in a Devise which is to be taken more favourably then an estate made by Deed and therefore it is sufficient in a Devise to have the intention of the Devisor understood either to make an estate in fee or in tail although proper words to make such an estate be not used and the intent of the Devisor cannot be more manifest to have an estate in tail then in this case As to the second Point the question will be whether the younger Son hath an estate in Tail or in Fee determinable by this limitation and it seemed to them that he shall have but an Estate in tail In which the question is to which estate these words of limitation to wit living the elder Son shall be referred viz. Whether to the Estate made to the younger Son or to the Estate given to the elder for if they be referred to the Estate made to the younger there is no question but these words do abridge restrain the estate but if to the elder then they make no restraint or restriction as to the estate of the younger Son but onely limit the remainder to the elder Son on this contingency only viz. If he be alive at the time of the death of the youngest Son without issue And to prove that these words shall be referred to the estate devised to the elder brother They said That if the land had been devised to the younger Son and the heirs of his body and if he dyed without issue living the elder that the elder should have the estate to him and his heirs it is clear that the younger hath an absolute estate tail and that then the remainder to the elder shall be on this contingency viz. If he be living when the younger dies without issue And so is Frenchmans Case 1 2. Eliz. who demised land to his wife for life the remainder to Charles Frenchman and the heirs males of his body and if he died without heirs males of his body the remainder to Arthur Frenchman and the heires males of his body Charles had issue a Daughter and died without issue male and it was adjudged that the Daughter should not have the land for this contingency does not alter the Estatetail that was first limited to Charles and although the Devise in the case at Bar be to the youngest Son and his Heirs without any limitation of his body yet the limitation afterwards to wit if he die without issue does explain well enough that the heires of his body are intended and then the subsequent words living the Eldest Son cannot alter the estate first given to the younger Son And Hil. 40. Eliz. in the Kings Bench by Walmesly If one deviseth land to his Son and his heirs and further deviseth that if he die without issue that the land shall be sold yet the Son shall have an estate in fee and not in tail but otherwise if he devised that if he died without issue that the lands should remain over for in the first case he disposeth of no more of the estate by the last words then he did at the first but in the last case he disposeth of the estate it self in remainder And this was agreed by Owen 18 19. Eliz. Rot. 354. and 15. 16. Eliz. Rot. 330. where the case was That one Edward Clark being seised in fee of two houses had issue Henry and two Daughters Alice and Thomasin Henry dyed before the two daughters living the Father the Father devised one house to his daughter Alice and her heirs for ever and the other to Thomasin who was at that time but eight years of age and her heirs for ever and if she died before the age of sixteen years Alice then living Alice should have it to her and heirs and if Alice should die having no issue living Thomasin Thomasin should have the house of Alice to her and her heirs and if both of them died without issue he devised the two houses to the two Daughters of his Son Henry and their heirs and if they died without issue he devised the remainder to a stranger Proviso That if Alice should marry I. S. that Thomasin should have her part to her and her heirs and if Thomasin should dye having no Child that the daughters of Henry should have all and if they died having no Child the remainder to a stranger as aforesaid The Devisor dies then Alice marries N. but not I. S. and enters into her house Thomasin after sixteen years of age dies without issue And if Alice or the daughters of Henry should have the estate of Thomasin was the question And it was holden by three Iustices that the daughters of Henry should have it because that Thomasin did not die within the age of sixteen years and that it being objected that there was no estate tail to any of the daughters but a fee simple conditionall upon a contingent it was at last adjudged 14. Eliz. Rot. 340. that they were Tenants in tail by this Devise in Mich. 37 38. Eliz. 42. Mich. 14 15. Eliz. And Michaelmas 18. Jacobi Judgment This Case was argued by Montague cheif Iustice Doderidge Haughton and Chamberlain who all agreed that by this Devise the youngest Son had not an Estate-tail but a limited see so that by his dying without issue living the elder Son his estate was quite determined and all except Doderidge agreed that the Recovery could not hurt the future Devise But Doderidge was much against this opinion by reason of great mischeif that might ensue by making of Perpetuities in Devises and cited Archers Case and Capels Case but notwithstanding Iudgment was affirmed as aforesaid De Termin Trinitat 18 Jacob. Rot. 1198. Dawtree against Dee and others IN an Action on the Case wherein the Plaintiff Declared That he the fifth of July 16 Jacobi was and is seised in Fee of a Capital Messuage called Moor-place with the appurtenances and of 600 Acres of Land meadow and pasture in Petworth with the said Messuage used of the annual value of 100 l. which Messuage he and those whose Estate he hath in the said Messuage and Tenements therein Farmors and Tenants have time out of minde used to keep good hospitality for the relieving of the Poor in Petworth aforesaid and that in the Church of Petworth aforesaid on the said fifth of July and also time out of minde there hath been and is a little Chancel on the North part of
the day is excluded by this word Quousque Crook contra Who said that the Declaration was insufficient for it ought to have been Tam pro Domino Rege quam pro seipso because here is a contempt to the King But upon full debate of the Case and upon shewing a President to the Court which was Plt. Jacobi Rot. 308. in the Common Pleas between King and Monlenax where the Declaration was for the party onely and all the Prothonotaries did certifie the Court that the greater part of Presidents of such Actions brought in the Common Pleas were for the party only and not Tam pro Domino Rege quam seipso whereupon it was adjudged that it was good either way Judicium and Iudgment was given for the Plaintiff And note that in this case the Iudgment was Quod Defendans sit in misericordia and not Quod capiatur vide 27. Assise 11. 42. Assise 17. Dyer 238. 40 41. Eliz. New Book of Entries 44 45. Bassett against Jefiock and Johnson IN an Ejectione the Iury gave a speciall Verdict to this effect That Queen Elizabeth was seised in fee in Jure coronae of the Mannor of Watton in the County of York and that King James the 15. Martii 2. Jac. did grant the same to William Brown and Robert Knight and their Heirs who the twenty seventh of April 3. Jac. did bargaine and sell the same to Michael Feilding and his heirs who entred and died seised and after whose death the same descended to Basill Feilding as his Brother who made a Lease to the Plaintiff Bridgman It seemeth to me that the Plaintiff hath made a good Title But it was objected that there was no good Title for that it is not found that the Queen died seised or that the Lands descended to the King But it was answered that when the Queen was seised in Fee in Jure Coronae that shall be intended to continue untill the contrary be shewed for when an Estate of Inheritance is once alledged it shall be intended still to continue till the contrary be shewn Plow Com. 193. 43 1. and 202. Judicium And afterwards viz. 19. Jacobi Iudgment was given for the Plaintiff without any argument at the Bench. Trin. 19. Jac. Samborne against Harilo IN an Action of Trespasse for that the Defendant 10. Octob. 44. Eliz the Plaintiffs free Warren at Mouldford in certain places there called Harecombe Harcombe Coppice and the Down did break and enter and did therein hunt without the license of the Plaintiff and three Hares and three hundred Conies did take and carry away Continuando as to the said Hunting and taking and carrying away the said Hares and Conies from the said tenth day of October to the first of November And further declared that the tenth of April 1. Jac. the Defendant the said Warren in the said places did break and enter and therein without the license of the Plaintiff did hunt and twenty Hares did take and carry away continuing the said hunting untill the first of March next after c. And further declared that the tenth of April 2. Jac. the said Defendant the said Warren in the said places did break and enter and therein without the license of the Plaintiff did hunt and forty Hares and four hundred Conies did take and carry away continuing the said hunting untill the first of March following contra pacem c. ad damnum c. The Defendant as to the Vi armis and to the first Trespasse except the entring and hunting in the said place called the Down and the taking and carrying away the three hundred Conies pleaded not guilty And as to the entry hunting and carrying away the said Conies he saith that the said place called the Down is and hath been time out of mind Communis fundus containing by estimation two hundred acres of Land and Pasture and that before the said tenth day of September and before the said Trespasse and at the said time the Defendant was seised of a Messuage and six Yard Land containing a hundred and sixty acres called the Mannor of Southbery in Mulford aforesaid and that the Defendant and all those whose estate he hath in the premisses time out of mind have had Common of Pasture in the said Down for 200. and 40. Sheep Levant and Couchant upon the said Messuage and six Yard Land and that the Defendant and all those whose Estate c. have used for preservation of the said Common as often as the said Common hath been oppressed and troubled with Conies have used of custome to have liberty to hunt and to take the Conies wherefore the Defendant the aforesaid time of the aforesaid first Trespasse and for preservation of the said Common from such oppression and diminution aforesaid into the said Down did enter and there hunted and the said Conies did take and carry away according to the said custome and continuing the said hunting all the said time And as to the second Trespasse besides the entry and hunting in the said places called Harecombe Harecombe Coppice and the Down and the taking and carrying away two hundred Conies he pleaded not guilty And as to the entry and hunting in the said places c. he saith that the said places called Harecombe and Harecombe Coppice are Woodland containing by estimation ten acres and that he was seised in Fee of the said Messuage and six Yard Land and made the same prescription as aforesaid for all his Horses Cowes Heifers Bullocks and two hundred and forty Sheep levant and couchant upon the said Tenements viz. for the Horses Cowes c. at the Feast of S. George and from that time untill the Corne growing in the Feilds of Moulford were carried away and after the Corne carried away for the Sheep untill the fourth of March next after and made the former prescription for the Sheep in the Down And the same prescription also for hunting and taking away the Conies as abovesaid and so did justifie the taking of the said two hundred Conies And as to the third Trespasse besides the entry and hunting in the said places and the taking and carrying away of the said four hundred Conies he pleaded not guilty and as to this plea he made the same prescription as before upon which plea the Plaintiff demurred in Law And if this matter pleaded in Bar was sufficient to bar the plaintiff of his Action was the question And it seemeth to me that there is nothing in the Defendants plea to hinder the Plaintiff from having Iudgment And the better to argue upon this matter I will first endeavour to shew what interest a Commoner hath in the Soile and what things he may do upon the Soile for preservation of the said Common 2. Whether this be a good usage and custome to enable the Defendant to hunt and kill Conies in the Plaintiffs free Warren And as to the first I conceive that he that hath Common in
bargain and sell 10 l. Land parcel of the Mannor no use is changed for the incertainty Trinit 18 Jacob. Ponesley against Blackman IN an Ejectment upon a Lease made by Richard Perriam the 19 of May 18 Jacobi of a Messuage and Land in Thacham and Colthrop in the Parish of Thacham Habendum from the Annunciation last past for three years whereupon the Plaintiff entered and was possest until the Defendant the 20 of May in the same year did Eject him ad dampnum c. The Defendant pleaded Not guilty The Iury gave an Especial Verdict viz. That before the Ejectment John Curre was seised in fee of the said Lands and the seventh of January 10 Jac. for 300 l. did bargain and sell the same to William Perriam and his Heirs upon Condition that if the said John Curre his Heirs Executors or Assignes should pay to the said William his Heirs or Assignes at the house of C. B. in Westminster 300 l. in manner following viz. 10 l. the 9 of July then next coming 10 l. the 9 of January next after which shall be in the year 1613. 10 l. the 9 of July 1614 10 l. the 9 of January next after 10 l. the 9 of July 1615. 10 l. the ninth of January next after 10 l. the ninth of July 1616. 10 l. the 9 of January next after 10 l. the 9 of July 1617. and 210 l. the 9 of January next after that then the Indenture should be voyd Proviso semper And it was agreed by the said Indenture and the said parties that the said William Perriam his Heirs and Assigns shall not take and intermeddle with the actual possession of the said Tenements or with the receit of the Rents issues or profits thereof until default were made of the payment of the said 300 l. or any part thereof contrary to the limitation in the said Indenture And they found likewise that the said William Perriam did not enter into the said Tenements And that afterwards and before the first day of the payment the said Curre did demise the said Tenements to William Dibley and Richard Carter by two several Demises habendum for six years and an half rendering Rent That the said Dibley and Carter by vertue of the said several Demises did enter and take the profits during the said term claiming nothing but by the said several Demises and that they payd the Rents during all that time to Curre and that at the end of the said term they surrendered the Estate to Curre That 11 Octob. 16 Jacobi William Perriam made his Will in writing and thereby did Demise the said Tenements c. to Richard Perriam and dyed That the said Richard Perriam the 19 Maii 18 Jac. did enter and made the Lease to the Plaintiff who entered and was possest until the Defendant did Eject him That the said Richard Perriam was yet living But whether the Defendant were guilty or not they prayed the advice of the Court and if it seemed to the Court that he was guilty then c. It was argued on behalf of the Plaintiff That this agreement by Indenture that the Bargainee shall not meddle with the possession is a Lease for years to the Bargainor Admitting it to be no Lease for years yet is the Bargainor Tenant at will and when he makes a Lease for years and the Tenant enters he is a Disseisor and then when the Bargainor enters he is Tenant at will again and so the Bargainee may very well Demise the Land And as to the first point to make a Lease the Law does require but the agreement of the parties that the Lessee shall enjoy the Land and take the profits and it is not necessary to have any precise words of a Demise or Grant as in 5 H. 7.1 by Frieux If I make one Bayliff of my Mannor for certain years and that he shall have the profits without interruption this is a Lease for years But it was objected that there is no express words that the Bargainor Object 1 shall have the Land or the profit but onely that the Bargainee shall not have it But it was answered that the words did amount to so much Respons for when the Land is sold to the Bargainee by the Law he ought to have the possession and profits but when by the same Deed it is agreed that he shall not intermeddle with the Land it follows that the Bargainor shall have it for he had it before and there was nothing to exclude him but onely this Deed and although by the Deed the Land is conveyed to the Bargainee yet when by the same Deed it is agreed that he shall not have the possession it follows that the possession shall remain in the Bargainor in whom it was before the making of the said Deed for no alteration is made thereof as to the possession As in the 8 Assis 34. one made a Feoffment on condition that if such an act were not done that the Land should return c. and the Feoffor re-entered for the condition broken and there it was objected that his entry was not congeable because he must recover the Land by Action but it was adjudged that his entry was good and the same Law if the words were that for not performing the Feoffor should retake the Land But it was objected That it could be no Lease for the intertainty Object 2 of the time It was answered that notwithstanding it was a good Lease Respons for first it is certain to continue until the time limited for the first payment and if that be done then it is a good Lease until the second payment and is like to the Case where one lets Land for a year and so from year to year as long as both parties shall please this is a good Lease for one year and for every year after when he hath entered before any disagreement And as to the second Point it is clear that the Bargainor is in at the will of the Bargainee because he enters by his agreement and then when the Tenant at will makes a Lease for years and the Lessee enters he is the onely Disseisor but if the Tenant at will infeoffs a stranger then both are Disseisors by the Statute of Westm 2. Cap. 25. And in the 12 Ed. 4. 12 B. If Tenant at will makes a Lease for years this is a Disseisin And the reason hereof is apparent for the Tenant at will hath no Estate in the Land and therefore he hath nothing to transfer to another And in the 23 H. 8. B. If I let anothers Land for years and the Lessee enters he is a Disseisor And 21 H. 7. 26. a. If Tenant at will makes a Lease for years and the Lessee enters this is a Disseisin to the first Lessor And if the Tenant at will be outed by the Disseisor and re-enters he hath reduced the Estate to the Lessor as in the Lord Abergevenies Case reported briefly by the Lord Dyer
173. Judicium And after many arguments in this Case Hillar 20 Jacob. the Court agreed that the Demise was good and Iudgment was given for the Plaintiff Periman against Pierce and Margaret his Wife TEnant in Socage had issue by his first Wife Joan Elizabeth and Agnes and Alice and Elizabeth by his second Wife Katherine Mary William and Joan by his third Wife and by his Will did Devise his Land to Joan the younger for her life rendering 13 s. 4 d. Rent to William the remainder to William in Tayl the remainder to Elizabeth and Mary for life the remainder propinquo sanguinitatis of the Devisor for ever William dyes without issue Joan the younger dyes without issue Elizabeth had issue William Stokes and dyes Mary had issue William Pierce and dyes Joan the elder dyes having issue John Periman and William Periman Agnes and Alice dye without issue John Periman had issue John Periman the Lessor and dyes Elizabeth and Mary dye Katherine dyes without issue Elizabeth had issue George Dean and John Dean Elizabeth deviseth her Land to John Dean and his Heirs and dyes John Dean hath issue John Dean and dyes the Lessor enters and makes a Lease to the Plaintiff who enters and is ejected by the Defendants by commandment of the said John Dean the son upon which the Plaintiff brought an Ejectment And it seemeth to me that judgment ought to be given for the Plaintiff for all the Land or at least for part thereof And therefore in the first place I conceive that when William the son dyed without issue the remainder in fee did vest in John Perriman who was the eldest son of Joan the elder who was the eldest daughter of the Devisor for although the Devisor had many daughters yet his intent appeared in the Will to a single person and not to divers also it appears that he doth not intend that this remainder should vest in William his son for he deviseth to him a Rent during the life of Joan the younger and afterwards an Estate Tail cannot be in Joan the younger or any of her issues because that an express Estate for life is limited to her nor in Elizabeth or Mary for he deviseth a remainder to them for life nor in any other of his daughters for then he would have named them either by their proper names or as his daughters and not by such circumlocution as is pretended in this Case Also the words of Remainder in fee cannot extend to those daughters for they are proximae consanguinitatis which does clearly exclude his own sons and daughters for they cannot properly be termed to be of consanguinity of the blood of the father as it is said in Sir William Herberts Case Cooks Rep. 3. that filius est pars patris and this is proved by the usual pleading of a Descent for if the Plea be by any except son or daughter the form is to say That the Land descends to him as Cosin and Heir and shall shew how but if by the son or daughter then to plead as before And 30 Assis 47. Land was devised to one for life the remainder to another for life the remainder propinquioribus haeredibus de sanguine puerorum of the Devisor there it is agreed that the sons and daughters are excluded by that Devise And so here in this Case neither William the son nor any of the daughters of the Devisor can take any thing by this Devise for they cannot be said de Consanguinitate de sanguine of the Devisor but the Issues of the Children of the Devisor are comprized within these words And then I conceive that the limitation being in the singular number viz. proximo consanguinitat all the issues of those Children shall not take but one onely and that as I conceive shall be the eldest son of the eldest daughter of the Devisor which was John Periman father of the Lessor of the Plaintiff as in the 20 H. 6. 23. In an Account supposing the Defendant to be his Receivor from the Feast of St. Michael it shall be taken to be the principal Feast of St. Michael the Archangel and not the Feast of St. Michael in Monte Teneb And 13 H 4. 4. 21 H. 68. 37 H. 6. 29. If father and son be of one name scil of J. S. If J. S. be named generally in a Writ Recovery or Deed it shall be intended the father for that he is most worthy And so Pladwels Case in this Court Mich. 38 and 39 Eliz. If a woman hath a Bastard and two legal issues and Land be given to one for life the remainder to the eldest issue of the woman the eldest legal issue shall take and not the bastard although he be the eldest issue for general words shall always be taken in the most worthy sence And so here the Devisor did dispose of his Estate to Joan the younger rendering Rent to William his son the remainder to William in Tail the remainder to two of his daughters scil to Elizabeth and Mary for life the remainder proxim consanguin c. in fee By which words it is apparent that the Devisor intended that for the default of the issues of William and after the death of Elizabeth and Mary the Estate should remain to one who was next of blood to him and that is John Periman the eldest son of his eldest daughter But admitting that all the issues of the daughters shall be in equal degree to take by this remainder as well as the eldest son of Joan the eldest daughter yet I conceive that those daughters who had an Estate devised to them by Will are excluded Cooks 8 Rep. 95. B. Always the intention of the Devisor expressed in his Will is the best Expositor and Director of his words and therefore if Land be devised to one in perpetuum this shall pass a fee although it be otherwise in a Grant So if one deviseth Land to another to dispose of or sell at his pleasure this is a fee to the Devisee Litt. 133. 19 H. 8 9. B. And so in our Case the intent of the Devisor appears to dispose of his Land among his Children and their issues as in Trin. 38 Eliz. Ewre and Heydons Case Heydon was seised of a Messuage in D and of three houses and certain Land in Watford did devise his Messuage in D and all his Land in Watford it was judged the houses in Watford did not pass in regard of the express mentioning the houses in D. and this was affirmed in a Writ of Error Edmund Meskin against John Hickford Administrator of Henry Machin IN an Audita Querela because that the 11 Ed. 1. it was Enacted That in regard that Merchants which heretofore had lent their goods to divers persons were fallen into poverty because they had not such speedy remedy provided for them for the Recovery of their Debts Ac ratione inde multi Mercatores desistebant venire in hanc terram cum Merchandizis
Mercatori deliberarentur idem Mercator haberet seisinam terrarum quae fuerunt in manubus debitoris die recognitionis facti in quorumcunque manubus postea devenirent sive per Feoffamentum vel aliter quod post debitum persolutum terrae debitoris exit inde per Feoffamentum returnarent tam Feoffatus Anglice the Feoffee quam aliae terrae debitoris quodque insuper si debitor vel fidemsores ejus obierent Mercator nullam haberet authoritatem ad corpus haeredis capiendum sed terras suas haberet si aetatis foret aut quando erit plenae aetatis quosque quantitatem Anglice the quantity valorem debiti de terris levasset prout per eundem actum inter alia plenius apparet Cumque etiam quidam Richardus Davies de Mitton infra parochiam de Breeden in Com. Wigorn. generosus post editiones seperalium actuum praedictorum scil ultimo die Junii anno Regni Dominae Elizabeth nuper Reginae Angliae quadragesimo tertio apud Civitatem Glocestriae in Comitat. Civitatis Glocestriae per quendam Henricum Machen generosum nuper defunct in vita sua ductus fuisset coram Johanne Thorne Gulielmo Hill tunc Vicecomitibus Balivis ejusdem Civitat custodibus Majoris precii sigilli Mercatoris intra eandem Civitatem Thoma Atkins Armigero tunc Clerico ad recognitiones debitorum intra Civitatem illam accipiend deputat Custodit minoris precii ejusdem sigilli ad tunc ibidem coram eisdem Vicecomitibus Ballivis Clerico per quoddam scriptum suum obligatorium tunc ibidem recognitum sed secundum formam Statutarum praedictarum non confect neque format gerens dat eodem die anno devenisset tent obligat praefato Henrico in quingentis libris legalis monetae Angliae quod quidem scriptum sequitur in haec verba Noverint universi per praesentes me Richardum Davis de Mitton in parochia de Breeden in Comitatu Wigorn. generos teneri per hoc praesens scriptum de Statuto Mercatorium firmiter obligari Henrico Machen de Crickley in Comitat. Civitatis Glocestriae generos in quingentis libris bonae legalis monetae Angliae solvend eidem Henrico Machen aut suo certo Attornato Executoribus Assignatis suis Et si non fecero volo concedo quod currant supra me Haeredes Executores Administrator meos districtiones poenae praemissae in Statut edit in Parliamento Domini Edwardi primi quondam Regis Angliae apud Acton-Burnel Westminst pro dâ—bitis Mercatorum recuperand Et facta fuit haec recognitio in Civitate Glocestriae coram Johanne Thorne Gulielmo Hill Vicecomitibus Ballivis Civitat Glocest praedict custodibus Majoris precii sigilli recogn Statut. Mercatorum ac Thoma Atkins Armigero Clerico Dominae Reginae custode minoris precii sigilli Recogn Statut. praedict ad Recognitiones debitorum apud Civitatem Glocest praedict secundum formam Statuti capiend deputat In cujus rei testimonium huic praesenti scripto ego praefatus Richardus Davis sigillum meum apposui sigillum praedictum ad Recognitiones secundum formam Statuti praedict ordinat pro Majore securitate inde praesentibus apponi procuravi Dat. apud Glocest praedict ultimo die Julii anno Regni Dominae Reginae Elizabethae Dei gratia Angliae Franciae Hilerniae Reginae Fidei Defensoris quadragesimo tertio ac Anno Domini 1601. The Case RIchard Davis being seised of Land in fee did acknowledg a Statute Merchant of 500 l. to Richard Machin to be payd to the Conusee c. without expressing any day of payment the Conusor made a Lease of the Lands to E for years who grants his Estate to B the Conusee dyes intestate and his Administrator extends the Land whereupon the Assignee of the Term brings his Audita Querela And whether the Audita Querela will lie or not was the Question And I conceive that it will not lie In which the Question is onely Whether this Statute being without an express day of payment be good or not and warranted by the Statutes of Acton-Burnel de Mercatoribus or not And I conceive this is a good Statute and well warranted by the said Statutes And first the intention scope and purpose of this Statute is to be considered and that was as I conceive to provide speedy remedy for Merchants as well Foreigners as Natives to receive their Debts and this is grounded on very good reason for Merchants are necessary members of the publique good for by them and their Trade the King hath profit by his Customs 2. The King and his Subjects have Foreign Commodities for their necessary use 3. They are the means of uttering the Commodities of this Land in Foreign parts 4. The Subjects of the King are educated and instructed in Navigation And the necessity of Merchants and their good usage appears in Magna Charta 30. Omnes autem Mercatores nisi publice antea prohibiti fuerunt habuerunt salvum securum conductum exire de Anglia venire in Angliam morare ire per Angliam tam per terram quam per aquam ad emendum vel vendendum c. And because their repair into this Land was so necessary these Statutes were made to give them security and remedy for their Debts arising for the sale of their Merchandizes and this is the whole scope and purpose of the Statute And to examine the parts of these Statutes I conceive that some parts of this Statute are substantial and material and therefore ought precisely to be observed and some are not so substantial and this of the day is such a one And first the Debtor ought to come before the Major or other Officer and Clerk appointed to take tâ—e Statute He must there acknowledg the Debt The Recognizance must be inrolled The Clerk ought to make a Writing obligatory It ought to be sealed with the Seal of the Debtor and the Seal appointed by the King which by the last Statute ought to be of two parts whereof one is to remain with the Major or other Officer and the other with the Clerk There ought to be a time of payment and this ought to be so certain that the Major by view of the Roll may certifie that the time is past And as to the other parts not substantial Although the Statutes appoint the taking of the Statute before the Maior or other chief Officer in the singular number yet the same may be done before any two chief Officers as it is usual in many Towns Although the Statute ordains the inrolment and the writing to be of the proper hand of the Clerk yet it may be written by his Clerk or servant Although the time of the payment be limited by the Statute to be at a day certain yet it is sufficient if the time be certain although no particular day be exprest in the Statute But all the first six
Defendants Father was seised in Fee of divers Lands and made a Feoffment to the use of himself for life the remainder to the Defendant his Son in Tail with divers remainders over with power of revocation by writing under his hand and Seal and publisht in the presence of three Witnesses And then for the consideration of four hundred pounds did enter into this Recognizance to the Plaintiff and dies And whether this Land were extendable or not against the Son was the question And I conceive that by the Statute of the 27. Eliz. this Recognizance may be extended against the Son the words of which Statute are And be it further enacted by the Authority aforesaid that if any person or persons have heretofore sithence the beginning of the Queens Majesties Reign that now is made or hereafter shall make any conveyance Gift Grant or Demise Charge Limitation of Use or Uses or Assurance of in or out of any Lands Tenements or Hereditaments with any Clause Provision Article or Condition of Revocation Determination or alteration at his or their will or pleasure of such Conveyance Assurance Grants Limitation of Uses or Estates of in or out of the said Lands Tenements or Hereditaments or of in or out of any part or parcell of them contained or mentioned in any Writing Deed or Indenture of such Assurance Conveyance Grant or Gift and after such Conveyance Grant Gift Devise Charge limitation of Use or Assurance so made or had shall or do bargaine sell demise grant convey sell or charge the same Lands Tenements or Hereditaments or any part or parcell thereof to any person or persons bodies Politick or Corporate for money or other good consideration paid or given the said first Conveyance or Assurance Gift Grant Demise Charge or Limitation not by him or them revoked made void or altered according to the power and authority reserved or expressed unto him or them in and by the said secret Conveyance Assurance Gift or Grant That then the said former Conveyance Assurance Gift Grant or Demise as touching the said Lands Tenements and Hereditaments so after sold bargained conveyed demised or charged against the said Bargainees Vendees Lessees Grantees and every of them their Heirs Successors Executors Administrators and Assigns and against all and every person and persons which have shall or may lawfully claim any thing by from or under them or any of them shall be deemed taken and adjudged to be void frustrate and of none effect by vertue and force of this present Act. So that this Statute doth not only aide Purchasors of the Lands but those who for a valuable consideration have any charge out of the Land or upon the Land But it may be objected that the Statute doth make the revokable Conveyance void only against the Bargainees Vendees Grantees Object and Lessees but does not speak of any Conuzee But I answer that it appears by the foregoing words Respons that the Statute intends to aide not only Bargainees c. but also all that have any charge out of the Land or upon the Land and although the last words of the Statute doe not speak expresly of Conuzees yet the Statute shâ—ll be expounded to extend to them and the Statute of West 2. cap. 1. Quod illi quibus tenementa data sunt in Taile potestatem alienandi c. which words seem only to restrain the Dâ—nee in Tail yet in the 5. Edw. 2. Form 52. the issue is thereby restrained and 3. Edw. 3. Formedon 46. that Tenant in tail cannot charge the Land no more then alien can forfeit the Land so that if he grant a Rent or acknowledge a Statute or Recognizance or commit Felony or Treason and dies the Issue shal have the Land discharged And this Statute hath alwaies been taken as to the equity thereof to releive Purch sors and those who have and therefore in Coke R. 3. 82. B. Standen and Bullocks case Mich. 42. 43. Eliz. where a man had conveyed his Land to the use of himself for life and then to the use of divers others of his blood with future power of revocation as after such a Feast or after the death of such a one and after and before the power of revocation commenc'd he for a valuable consideration did bargain and sell the Land to another and his Heirs this bargain and sale is within the remedy of the Statute for although the Statute saith the said first Conveyance not by him revoked according to the power by him reserved which seems by the literall sense to be intended of a present power of revocation for no revocation may be made by force of a future power untill it comes in esse yet it was holden that the intention of the Act was that such a voluntary Conveyance which was originally subject to the power of revocation be it in present or in future shall not be good against a Purchasor bona fide upon valuable consideration and if other construction be made the Act will signifie very little and it will be easie to evade such an Act. And so if A. hath reserved to him a power of revocation by the assent of B. and then A. bargains and sells the Land to another this bargain and sale is good and within the remedy of the said Act. The King against Sir John Byron Knight IN a Quo Warranto for that the Defendant for a year past hath used and yet doth use without any Warrant within the Mannor of Colswick in the County of Nottingham within the bounds of the Kings Forest of Sherwood and within the reguards of the said Forest to have a Park within the said Mannor with a Pale Hedge and Ditch inclosed being two hundred acres of Pasture and a hundred acres of Wood within the said Park Et ad venandum capiendum occidendum apportandum in the said Park and two hundred acres of Pasture and a hundred acres of Wood omnes omnimodas damas Domini Regis Forrestae suae praedict in parcum praedict praedict 200. acr pasturae 100. acr Bosci aliquo tempore venand occidend Ita quod Forrestini Domini Regis forestae praâ—dict nec aliquae aliae personae quaecunque intromittantur ad venandum fugandum intra parcum praedictum 200. acr pasturae 100. acr Bosci sine licentia defendentis The Defendant pleaded that John Biron Knight the Defendants Grandfather was seised in Fee of a Messuage of a hundred acres of land two hundred acres of Meadow three hundred acres of pasture and a hundred acres of wood in Colwick in the County aforesaid now and time out of mind called the Mannor of Colwick within the meets and bounds of the Forâ—st aforesaid And that the said John Byron the Grandfather and all those whosâ— Estate the said John Byron hath in the aforesaid house and a hundred acres of land two hundred of Meadow and three hundred of Pasture and a hundred of Wood in Colwick aforesaid have had
any Lands Tenements or Hereditaments parcel of their Bishopricks or any charge or incumbrance out of the same or of any other thing in their disposition to binde their Successors except onely Leases for 21 years or three lives of such Lands Tenements and Hereditaments which have been usually demised or whereupon the usual Rents have been reserved according to the said Act. And although such Lease be made of such Lands usually demised reserving the usual Rent according to the said Statute yet unless all the limitations prescribed by the Statute of the 32 of Hen. 8. be not pursued as if it be not all in possession or that the old Lease be not expired or surrendred within one year which is not prohibited by the first of Eliz. as it was adjudged in Foxes Case then such Lease will not binde the Successor unless it be confirmed by the Dean and Chapter And such construction as aforesaid hath been made to disable a Bishop to make any Estate except Leases for 21 years or for three lives as is aforesaid as concerning the binding of the Successor as the Grant of the next avoydance by a Bishop to another although it be confirmed by the Dean and Chapter is restrained by the said Statute of Elizabeth to binde the Successor as it hath often been judged and the reason is because it is such an Hereditament whereon no Rent may be reserved for all in the Statute that is not permitted in the Exception is restrained as to the Successor by the general purview of the said Act but yet such Grant will binde the Bishop himself although the Statute says that it shall be voyd against all intents and purposes for the makers of the said Act did intend not onely the advancement of Religion but also increase of good Hospitality and avoyding dilapidations and ruine of the Church which the Successor if the Acts of his Predecessor should binde him were not able to remedy and therefore the makers of that Act did rather regard the Successor And these words in the Act viz. Parcel of the possessions of his Archbishoprick or Bishoprick or united belonging or appertaining to the said Archbishoprick or Bishoprick may be very aptly construed That the Gift of this Office and all other such like things that are belonging to the Archbishoprick or Bishoprick for although the Bishop cannot exercise this Office himself yet hath he an inheritance in the gift and disposing thereof and so it is adjudged in Cooks 8 Rep. Earl of Rutlands Case And these words Belonging to the Archbishoprick or Bishoprick shall be expounded for Concerning the Archbishoprick or Bishoprick And therefore if a Writ of Annuity be brought against a Bishop upon a title of prescription or otherwise and Iudgment be given against him upon Verdict or confession this is restrained by this Act because the Bishop is charged with this Annuity in respect of his Bishoprick and therefore the Successor shall be charged with the arrears incurred in the life of the Predecessor 21 H. 7. 4. 48 Ed. 3.26 33 H. 6. 44. and yet is not the Annuity issuing out of the Bishoprick as appears in the 10 H. 6. 10. and 10 Ed. 4. 10. But because this does concern the Bishoprick and does tend to the diminution of the revenues and the impoverishing of the revenues this is restrained by the said Act of the first of Eliz. And therefore to answer to the Objection Wherefore such an Office should be granted to one solely I answer and it was also agreed to by all the Court That if the Office be ancient and necessary the Grant thereof with the ancient fee is no diminution of the Revenue or dispoverishing the Successor and therefore of necessity such Grants are exempted out of the general restraint of the said Act of Elizabeth For as Bracton saith Illud quod alias licitum non est necessitas facit licitum necessitas inducit privilegium quod jure privatur And if Bishops have not power to grant such Offices of service and necessity for the life of the Grantees but that their estates shall depend on incertainties as on the death or transmutation of the Bishop then no able or sufficient persons will be willing to serve them in such Offices or at least will not discharge their Office with any cheerfulness or alacrity if they may not have such estate in certain for the term of their lives as their Predecessors had but when an ancient Office is granted to one it is not of necessity to grant the same to two and therefore such Grant is not exempted out of the general restraint of the Statute no more then if the Bishop should grant an Office with the ancient fee to one and then he grants the Reversion to another this is restrained by the Statute because it is not of necessity and if the Bishop may grant such Offices to two he may grant them without any limitation of lives and by consequence ad infinitum and so if he may grant a Reversion to one so he may to others also without any limitation and by the same reason he may grant them in Tail or in Fee which is quite contrary to the intention of the said Act. And of such opinion was Popham Chief Iustice Michaelm 44 45 Eliz. in Stumblers Case and Dyer 23 Eliz. 370. where Horn Bishop of Winchester did grant to Dr. Dale during his life a Rent out of the Mannor of Waltham pro concilio impendendo the Bishop dyed and because the Rent was arrear Dr. Dale brought an Action of Debt for the arrears incurred in his life against the Executors In which two points are to be observed 1. That the Grant was not voyd against the Bishop himself The other That although the Rent was issuing out of the possessions and not parcel this was voyd by his death And Trin. 30 Eliz. Rot. 346. in this Court The Bishop of Chester after the Statute of 1 Eliz. did grant to George Boulton an Annuity of five marks per annum pro concilio impenso impendendo which was confirmed by the Dean and Chapter and then the Bishop dyed and Boulton brought a Writ of Annuity against the Successor and in his Count did aver that the Predecessors of the said Bishop had granted reasonable Fees but did not aver that this Fee had been granted before and did aver that he was homo consiliarius in lege peritus and the Opinion of the Court was against the Plaintiff But there it was resolved that although the said Bishoprick was founded but of late times to wit in the time of Hen. the eight yet a Grant of an Office of necessity to one in possession with reasonable fees the reasonableness whereof is to be decided by the Court of Iustice wherein the same doth depend is good and is restrained out of the general words of the said Act. And in our Case the avowant hath averred this Office to be an ancient Office and which hath
the Receipts and there being three other Co-trustees with him the Plaintiffs Councell conceived that he ought not to be charged with more then he himself received especially for that the other parties trusted and who received the profits were or were reputed to be men of ability and responsible Touching which last point being that where on the Plaintiffs Councell chiefly insisted for the reversall of the said Decree as against the now Plaintiff It appeared unto this Court that Challoner Father of Thomas the Infant did heretofore make a Lease of the said Lands to one Weeks for five and thirty yeares and afterwards conveyed away the Reversion to Thomas Challoner his Brother and after the death of Francis according to an Award made between the said Weeks and Thomas Challoner the Brother who was Vncle to Thomas the Infant the Lease of five and thirty years and the Reversion in Fee-simple were to be assigned to parties trusted by the said Weeks and one Barbara Challoner Mother of the said Infant and by the said Thomas the Vncle the Lease to be intrust for Weeks for life the remainder to Barbara for life the remainder to Thomas the Infant and the reversion in fee to be in trust for the said Thomas the Infant But upon the limitation or Condition that the said Thomas the Infant when he came of age should make some assurance to Thomas the Vncle according to the Award wherein if he failed then the trust limited to him should cease and the Trustees should be seised for Thomas the Vncle. In pursuance whereof the now Plaintiff and the said Forster were trusted together with one Langworth and Lovell to take the Estate in the Lease and did take an Assignment thereof from Weeks the 12th of June 9. Jacobi And all the Trustees sealed the Counterpart and the same day the now Plaintiff and Forster assigned their moyity in the said Lease to one Mr. Peacock and Robert Forster who were not privy nor acquainted therewith and on the thirteenth of June the ninth of King James the said Thomas Challoner the Vncle passed over the Inheritance to the now Plaintiff and Thomas Forster whereby it was probable that the said Assignment made by the now Plaintiff and Thomas Forster of their interest in the moyity of the Lease was to keep the same from being extinguished After which assurance so made Weeks during his life and Barbara after him during her life received the profits of the said Lands and Barbara in the year of our Lord 1614. dyed And it appeared that soon after the death of the said Barbara viz. 23. of March 12. Jacobi Langworth one of the Trustees of the Lease being dead whereby his interest in the moyety survived in Lovell that Thomas Challoner the Vncle procured the said Lovell to assign over his interest in the said Lease to the said Thomas Challoner the Vncle lyable to the said trust as by a Copy of the Assignment now read appeared And it appeared by the confession of the now Plaintiff and by his answer to the former Bill and by the Acquittances now produced that the now Plaintiff joyned with the said Thomas Forster in giving acquittances for the three first half years Rents but it did not appear that he ever received any after or gave any more Acquittances but it doth appeare by the proofs that the said Thomas Challoner the Vncle who had the Assignment from Lovell did receive the Rents of the Tenants and payd the same over to the said Thomas Forster and that when the Infant came of age he called the said Thomas Forster and Thomas the Vncle to an account and that they did account And that the said Thomas Forster did then deliver him a Book of account which the Defendant now produced in Court by which it did appear that for the three first half years the Rents were received by the said Thomas the Vncle and by him paid to the now Plaintiff and the said Thomas Forster for the use of the Infant but for all the subsequent time the same were received by the said Thomas Challoner the Vncle and by him paid to the said Thomas Forster alone who as was not now denyed was at the time of such receits generally taken to be of great ability and responsable as it also appeared by the proofs that the said Infant after he came of age had declared the said Thomas Forster to be his Debtor and did by his Will read in Court give the said summe of one thousand seven hundred pounds to the said Mountford as a Debt owing by the said Thomas Forster solely not mentioning the now Plaintiff Vpon all which this Court was fully satisfied that the now Plaintiff received no penny of profits after the three first half years but whether he ought to be charged with all that the said Thomas Forster received being a Co-trustee with him in respect the said Forster is now declined in his Estate as is conceived this Court somewhat doubted and although a president was produced wherein this Court had charged parties trusted but onely according to their several and respective receits and not one for the other yet in respect the Defendants Councel opposed the same alledging many presidents to be on the other side and the Lord Keeper conceived the case to be of great consequence and thought not fit to determine the same suddenly but to advise thereof and desired the Lords the Iudges assistance to take the same into their serious considerations and to assist him with their advice therein whereby some course might be settled that parties trusted might not be too much punished lest it should dishearten men to take any trust which would be inconvenient on the one side nor that too much liberty should be given to parties trusted lest they should be emboldened to break the trust imposed on them and so be as much prejudicial on the other side And the Lord Keeper and the Lords the Iudges assistants afterwards conferring together and upon mature deliberation concerning the case to be of great importance his Lordship was pleased to call unto him also Mr. Iustice Crook Mr. Iustice Barcley and Mr. Iustice Crawley for their assistance also in the same and appointed presidents to be looked over as well in this as in other Courts if any could be found touching the point in question whereupon several presidents were produced before them some in this Court and some in the Court of Wards where parties trusted were chargeable onely according to their several and respective receits and not one to answer for the other but no president on the contrary was produced to them Whereupon his Lordship after long and mature deliberation on the case and serious advice with all the said Iudges did this day in open Court declare the resolution of his Lordship and the said Iudges That where Lands or Leases were conveyed to two or more upon trust and one of them receives all or the most part of the profits
himself his boy and his horse Item The Defendant is to deliver the said house to the Plaintiff with all the appurtenances thereto belonging or in any wise appertaining Tenantable and in good repair Item The Defendant is to make as good a Lease as can be devised by Councel unto the Plaintiff and his Assigns And the Defendant pleaded performance of these Articles Plea Replication The Plaintiff did reply that the said 23 of April 1610. there was not any Demise made by the said John Sowdley of the said Mannor-house and of the houses called Sowdley Hall and of the Land lately in the Tenure of the aforesaid Reynold Sowdley and that the Plaintiff since the making of the said Articles viz. 9 Maii 10 Jacob. at great Sowdley aforesaid did require the Defendant to make a Lease of the said Mannor-house and houses with the aforesaid Land late in the Tenure of the said Reynold Sowdley scituate in great Sowdley aforesaid in the Parish aforesaid and in the County aforesaid to one Walter Welden Thomas Welden and John Welden for their lives according to the effect of the said Articles and that the said Walter Thomas and John were there and then ready to accept of the said Demise of the premisses of the Defendant and yet the Defendant did refuse to make the said Demise of the premisses to the said Walter Thomas and John Demurrer Vpon which the Defendant demurred in Law And I conceive that the Plaintiff ought to have Iudgment And fist to answer the Objections that are made against the Plaintiff upon the Articles Object 1 That the Lease ought to have been made to the Plaintiff himself for three lives and not to any other Answer I answer The words are plain That the Lease shall be made to the Plaintiff or his Assigns in the disjunctive and therefore it is in his election either to take the Lease to himself for three lives or to take it to his Assigns for three lives and so should it be if the words were to the Plaintiff and his Assigns as it is resolved in the Comment fol. 288. Chapman against Dalton where a man did let Land to another and did covenant at the end of the term to make such another Lease to the Lessee and his Assigns the Lessee made his Executor and dyes and the Executor does make his Executor and dyes and there it was adjudged that the Lease ought to be made to the Executor of the Executor for he is the Assignee in Law to the first Testator and the word and shall be taken for the word or and there it is clearly agreed that if the Lessee had named any in his life-time to take the said Lease it ought to be made to him and so as it is there said if I be obliged to make a feoffment to you or your Assigns such as you name to take the feoffment are your Assigns indeed and so in our Case these three persons named by the Plaintiff are his Assigns to whom the Lease ought to be made 21 Ed. 3. 29. Object 2 The other Objection is that the Lessee named by the Plaintiff ought to be ready upon the Land to take the Lease for a Lease for life cannot be made off the Land Answer I answer That when a man is bound to infeoff the Obligee and no time is limited he ought to do this upon request 27 H. 8. 6. B. and the same Law of a feoffment upon condition to re-infeoff him 44 Ed. 3. 9. 14 H. 8. 21. 18 Assis 18. 17 Assis 20. but yet the Obligor at his peril ought to do it during his life otherwise the condition is broken So in our Case the Plaintiff ought first to require the Defendant to make the Lease and this of necessity ought to be done where he can finde the Defendant for it is impossible to do it on the Land unless the Defendant be there and the Plaintiff cannot compel him to be there But when the Plaintiff hath made his request the next action is then to be done by the Defendant and therefore he ought to go to the Land and to be ready there to make the Lease And in the 22 Ed. 4. 43. A. is bound to B. on condition that C. shall infeoff B. by such a day and did shew that C. was there ready on the Land and B was not there to receive the Feoffment and there it was argued whether the issue should be upon the being of C. upon the Land who ought to make the Lease or of B. who was to take the Lease and in fine it was adjudged that the issue should be whether C. were there or not for he ought to be there or else the Bond was forfeit So that the Defendant upon request ought to go to the Land and there to attend a convenient time to make the Estate and then if the persons named do not come thither he is excused but when he goes not to the Land but does utterly refuse to make the Estate it is to no purpose for the Assigns to come to the Land and admitting the Law would enforce them to attend there then I demand how long they ought to attend for in all places where the attendance of one is required in a place certain by the Law the time of his attendance is limited 18 and 19 Eliz. Dyer 354. The third Objection is that the Article for making of the Lease Object 3 is to make a Lease of the said Mannor whereas no Mannor is mentioned before and the request is to make a Lease of the houses and of the Land late in the Tenure of Randolph Sowdley To this I answer That the Demise in the first Article Answer is of the Mannor-house and all the Lands which were in the Tenure of Randolph Sowdley with all the appurtenances thereto belonging then when he agrees to make a Lease of the said Mannor it shall be intended the Mannor mentioned before and although it be not in verity a Mannor yet in reputation it may be a Mannor and that is enough to make it to be put in the agreement 22 H. 6. 39. a. where one pleaded a Feoffment of eight Acres of Land by the name of the Mannor of D. and adjudged by the Court to be a good Feoffment although the acres were not set forth and in the 27 of H. 6. 2. a Plough-land may pass by the name of a Mannor The request is made too late for the time limited to enter is the Object 4 Anunciation 1612. and the request is not until the ninth of June next after and that is too late for the Lessor ought to have 20 l. fine upon the entry and making of the Lease and therefore the request ought to be made at the time that the entry was to be made and for that purpose Andrews Case and the Lord Cromwels Case in L. Cooks Rep. were cited To which Objection Cook and all the Court did seem to incline But I
conceive that the request is made in good time enough Answer for two Reasons The Estate here is to be made by the Defendant and although he be not bound to do it without request yet may he do it or at least he may offer to do it without any request and therefore if there be any loss in the not doing of it it is his own fault because he did not offer to make the Estate and is not the Plaintiffs fault and if he had offered to make the Estate and the Plaintiff had refused he had been excused And therefore the rule is given in the Lord Cromwels Case aforesaid that when a woman or a Grantee upon condition is to make an Estate to the Grantor and no time is limited he hath time for his life unless the party who is to have the Estate do hasten it by request but if an advowson be granted on such condition the Regrant ought to to be before the Church becomes voyd so if the condition be to grant Rent payable at certain days the Grant ought to be before any day of payment for otherwise he shall lose the Presentation and the Rent which will incur before the Grant made And in the 14 Ed. 3. Debt 138. In a Debt upon a Bond the Defendant pleaded the Condition viz. That if he granted twelve marks Rent the Bond should be voyd and demanded Iudgment c. because no time was limited so that he might do it when he would and said that he was always ready to grant the twelve marks Rent and because he demurred not issue was joyned c. If this not making request shall be any damage to the Plaintiff it must be because the Defendant suffers loss by it as in the cases above cited but in this case the Defendant hath the same remedy for the 20 l. although no Estate be made as he should have had if the Estate had been made for by the fourth Article it is agreed that if there be no Estate made of the Land the Plaintiff shall enter at the Anunciation 1612. And I conceive that this payment ought to be made at the time limited for the entry for it is a mutual agreement that doth binde both parties and therefore it lies not in the power of the Plaintiff for his want of entry to defeat the Defendant of his 20 l. agreed to be payd to him but when he enters it shall be intended that he entered when it was agreed he should enter viz. at the Anunciation 1612. And if he payd it not then the Defendant might have had his Action of Covenant whether any Lease were made or not And in Sir Andrew Corbets Case Cook Rep. 4. 81. certain Land is devised to A. B. until 800 l. pound be levyed that is until it may be levyed and so in case of a Lease or limitation of a use for otherwise it should be in their power to hold out the Lessor for ever and so in case of an Elegit upon the Statute of Westm the 2d. cap. 18. and of Retinue for the double value of a Marriage by the Statute of Merton cap. 6. Opinion of the Court. And the whole Court was of Opinion that the request came too late whereupon they were of Opinion to give Iudgment against the Plaintiff but I prayed that the Plaintiff might discontinue his Suit which was granted Rot. 609. Michaelmas 13 Jacob. Smalman Plaintiff against John Agborrow and Edmund Agborrow Defendants IN an Action of Trespass for that the Defendants the 13 Maii 13 Iacob six Heifers of the Plaintiff of the price of 20 l. at Dodenham in a place called Well-Marsh did take chase and drive away to the damage of 10 l. c. The Defendants to all except the chasing did plead Not guilty And as to the chasing they said that the place where c. is and at the time wherein c. was the Freehold of one Francis Agborrow and so did justifie as his servants for damage feasant c. Replication The Plaintiff replyed that before the said Francis Agborrow had any thing c. the Dean and Chapter of the Cathedral of St. Mary the Virgin in Worcester were seised in fee of the Mannor of Aukerden and Dodenham whereof the place where c. is and at the time whereof c. was parcel c. And that the 25 of November 10 Elizab. the said Dean and Chapter by their Indenture did Demise the said Mannor to William Agborrow and Jane his Wife and to the said Francis Agborrow for their lives And that the 20 Febru 39 Elizab. William Agborrow dyed seised and that the 21. of Decemb. 39. Eliz. Jane did marry with Robert Hawkins And that the 25. Febr. 40. Eliz. Robert Hawkins and the said Jane by their Indenture did demise the said Mannor to William Hawkins and William Heaven for sixty years from the date c. if the said Jane and Francis Agborrow or either of them should so long live rendring twenty pounds rent and that the 25. of Mar. 13. Jac. William Hawkins and William Heaven did grant their Estate to the Plaintiff whereby he was possessed and put in his Cattel there to grase which were there untill the Defendant took them away c. And did aver the life of Francis Agborrow The Defendants rejoyn and say that the said Jane did die the 14. Rejoynder of Mar. 12. Jac. and that Francis Agborrow did hold himself in c. Per jus accresendi Vpon which the Plaintiff demurred in Law A man and a woman are Ioynt-tenants for life the woman marries The Case the Husband and Wife by Indenture do let their moyety for years rendring Rent and after the woman dies And the question was whether the surviving Ioynt-tenant could avoid this Lease And I conceive he cannot And for the Argument of this Case I shall observe these two things thereof That if the woman who made this Lease had been sole at the time of the making this Lease had been good during her life and the life of her Companion the other Ioynt-tenant That this Lease being made by the Husband and Wife is not void but voidable And as to the first Point Littleton fol. 63. and 64. saies that if two Part. 1 Ioynt-tenants in Fee be and one grants a Rent-charge and dies the Survivor shall hold the Land discharged but if one makes a Lease for years and dies the Lease is good against the Survivor and in Hales Case in the Comment If two Ioynt-tenants be for years and one of them does grant to I.S. that if he payes twenty pounds at Michaelmas he shall have his moyety and the Grantor dies and I. S. does pay the money yet shall not he have the Land because the Condition precedes the Estate but if he make a Lease for yeares to commence at a day to come and dies before the day yet is the Lease good against the Survivor and so in Trin. 37. Eli. Harbury and
Bartons Case Two Ioynt-tenants are for life and one lets his moyety for years to commence after his death and dies and agreed to be a good Lease against the Survivor for as Litton saith every Ioynt-tenant is seised Per my per tout and hath an Estate in one moyety not only for his own life or his own time but also for the time and life of his Companion and therefore every Estate made by him is good for a moyety so long as the Estate of himself and his Companion continues but a Rent-charge shall not bind his Companion because he claimes by the first Conveyance which is above his Companions Estate And as to the second point it is cleer that when Husband and Wife Part. 2 make a Feoffment in Fee or a Lease for years of the Land of the Wife rendring Rent the Wife after the death of her Husband may accept the Rent and make the Lease good as in 26 H. 8. 2. the case of the Feoffment is agreed and if a Woman after the death of her Husband does accept the Rent she shall be barred in a Cui in vita 11. H. 7. 13. 15. Ed. 4. 17. and Dyer 91. B. Husband and Wife make a Lease for years by Indenture and the Husband dies and she accepts the Rent she shall be bound thereby and shall not avoid the Lease Vpon which two things being as I conceive unquestionable it follows that this Lease at the time of the making thereof is not void but voidable And therefore the sole question will be how this Lease is voidable and if it may be avoided by the surviving Ioynt-tenant or not And I conceive that it is avoidable by the Wife only if she survive her Husband and not by the other Ioynt-tenant and that for two reasons First Because the Survivor comes in above the Lease and therefore cannot take advantage of any imperfection or defect to avoid the Lease 14. Ed. 4. 1. B. If a Feoffment or a Lease for life be made to two and one dies the other may plead the Estate to be made to him only for he is not in by him that is dead but by the Feoffor or Lessor and Dyer 187. a. Two Ioynt-tenants for life one makes a Lease for yeares rendring Rent and dies the Survivor shall not have the Rent And if Tenant for life makes a Lease for years rendring Rent and surrenders to the Lessor the Lessor shall not have the Rent for he is in by his Reversion which is above the Lease for years and 28. H. 8. 96. a. An Executor had Iudgment to râ—cover a Debt and died intestate whereupon Administration is committed to another he shall not have a Scire facias upon this Iudgment because that he being Administrator immediately to the Testator is above the recovery Secondly There is no privity between the surviving Ioynt-tenant and the Lessor to make him avoid the Lease which is voidable as in 8. Rep. Whittinghams case Privies in blood as Heir generall or speciall shall avoid a voidable estate made by the Ancestor as if an Infant make a Feoffment in Fee his Heir may well enter and avoid the Feoffment but Privies in Law as Lord by escheat Lord of a Villain or Lord who enters for Mortmain shall never take benefit of the Infancy because they are but strangers And therefore if an Infant make a Feoffment in Fee and dies without Heir the Feoffment is unavoidable 49. Ed. 3. 13. 6. H. 4. 3 7. H. 5. 9. 39. H. 6. 42. And as to Privies in Estate as Ioynt-tenants Husband and Wife Donor in Tail and Donee Lessor and Lessee it is there also resolved that they shall not take advantage of Infancy unleâ—â—e it be in some speciall cases And therefore if Tenant in Tail within age makes a Feoffment in Fee and dies without Issue the Donor shall not enter contrary to the opinion of Rick and Frisby 6. H. 4. 3. because that here is only a Privity in Estate between them and no right does accrue to the Donor by the death of the Donee So if two Ioynt-tenants in Fee be and one of them being within age makes a Feoffment in Fee and dies the Survivor shall not enter but if two Ioynt-tenants within age do make a Feoffment one joynt Right remains in them and therefore if one dies the Right will survive and the Survivor may enter in all and the same Law of Covertue or non sanae memoriae as it is said also in Whittinghams case and in Fitzherb N. B. 192. K. If two Ioynt-tenants within age do alien in Fee they must sue severall Writs of Dum fuit infra aetatem because that the cause of their Action is their nonage which is severall for the nonage of the one is not the nonage of the other But if Husband and Wife within age do make a Feoffment of the Wifes land and the Husband dye the Wife shall have a Dum fuit infra aetatem 14. Ed. 3. Dum fuit infra aetatem 6. and 12. H. 7. 18. B. Kelloway In a Formedon by the Lord Brook against the Lord Latimer if an Infant does make a Feoffment none shall avoid this but the Infant himself and his Heirs and no stranger and the same Law of a Feme Covert And as to the case of Harvey and Thomas 33. Eliz. cited in the Lord Cromwells case Where the Husband made a Lease of his Wifes Land for years and then he and his Wife aliened by Fine and the Husband dies the Conusee shall avoid this Lease which I agree to for the Lease being made by the Husband only is utterly void against the Wife and cannot be made good by any Act done by the Wife and the Land passeth all from the woman by the Fine and therefore the Lease cannot bind the Conusee The Survivor in one case cannot make the Lease good by the acceptance of the Rent because that the Rent does not belong unto him and therefore he shall not be received to avoid this Lease as in Nat. B. 138. B. the Heir shall not have a Cessavit for ceasing in the time of his Ancestor for he shall not have the Rent or the arrearages incurred in the life of his Ancestors and the reason is as I conceive because that the Law does give this benefit to the Tenant for the saving of his Tenancy for the tender of arrearages the which cannot be to the Lord because that the Rent is not due to him and therefore the Lord shall lose his action rather then the Tenant shall be deprived of his advantage of saving the land by his tender And by this case also the Aunt and the Neice shall not joyne in a Cessavit for a ceasing made before the Title of the Neice accrued but in Nat. F.B. 139. it is otherwise there of joynt-tenants as I conceive the reason whereof is because as I conceive the Survivor shall have all the Rent and therefore the tender may be made to him
years not expired at the time of her marriage she should have the Messuage then in his tenure being his Mansion-house which house now is in the tenure of the Plaintiff and an Annuity of 20 l. out of all his other Lands Tenements and Houses of the Devisor in the said Parish with a clause of distress and to detain the same until the said Annuity were payd to the said Ellinor and if Ellinor did marry he did devise all his said Lands except the said Mansion-house to the said Thomas Butler and his Children and made the said Ellinor his Executrix and dyed possessed And the said Ellinor entered claiming the Devise and the 16 of January 1606. marryed the Plaintiff and the 30 of April 1606. the Plaintiff and his Wife did agree to have the said Mansion-house and the said Annuity and Thomas Butler by their assent did enter into the residue And the 12 Jan. 1606. Elianor dyed And at our Lady-day 12 Jacob. 10 l. of the said Annuity was behinde wherefore the Plaintiff the 26 of May 12 Jacob. did enter and take certain goods for the said 10 l. and would have deteined them in the name of a Distress and the Defendants rescued them ad damnum 40 l. The Defendants pleaded Not guilty The Iury found the Lease made by the Bishop and the confirmation with the several Assignments and the Devise as in the Declaration is set forth saving the Devise to the said Thomas Butler from the day of the death of the said Ellinor which clause was not found and they found also that John Butler the 3 Novemb. 3 Jacob. dyed and that Ellinor did enter claiming by the Devise and that she married the Plaintiff and also their agreement to have the Mansion-house and Rent as a Legacy and the entry of Thomas Butler in the residue by the assent of the Executor and the death of Ellinor and that the 10 l. was behinde and that the Plaintiff took the goods and would have detained them as a Distress and that the Defendants rescued them And if the Defendants were guilty they found for the Plaintiff if not they found for the Defendant c. And I conceive Iudgment ought to be given for the Defendants For first I conceive that the Wife of John Butler had not any Rent at all out of the house in which the Distress was taken If she had any Rent yet it is determined by her death And I conceive the Case to be thus Lessee for years of two houses does devise them to his Wife for 28 years which is all the term if she live so long unmarryed and after her death to Thomas Butler and if the woman marries that she shall have one Messuage for the residue of the term and 20 l. Rent ex omnibus aliis terris suis with a clause of Distress and then Thomas Butler shall have the other Messuage The Devisor makes his Wife Executrix and dyes and the Wife enters claiming by the Devise and then marries the Plaintiff and then they agree to have the house that was devised to her after her marriage with the Rent and Thomas Butler by their assent does enter into the residue the Wife dyes and the Plaintiff distrains for Rent behinde after her death and the Defendants rescue the Distress whereupon the Plaintiff brings his Action And as to the first I conceive that the Wife can have no Rent by this Devise and that for three Reasons Because the Wife did take the entire term as Executrix and therefore she cannot have a Rent out of the same term and therefore I conceive it will not be denyed that if Lessee for years deviseth a Rent to I. S. and makes him his Executor and dyes I. S. shall have no Rent for in as much as he hath the term as Executor he shall have no Rent as Legated for it is extinct in the term and although he hath one in his own right and the other as Executor yet cannot he have both together 4 Ed. 6. B. Surrend 52. If one hath a term as Executor and purchase the Reversion the Lease is extinct And although the term in our case is devised to a stranger yet by the Law it does first vest in the Executor and the Devisee cannot have it without the delivery or consent of the Executor And if a Devisee does enter into a term or takes goods without the delivery of the Executor the Executor may have an Action of Trespass against him 20 Ed. 49. 2 H. 6. 16. 11 H. 4. 84. 37 H. 6. 30. although in the 27 of Henry the 6. 8. a. diversity is taken between a thing certain and uncertain for it is there said that if the thing devised be certain and a stranger takes it the Executor shall have an Action of Trespass but in old Nat. Bre. 87. there is no diversity So that it is clear that the term first vesteth in the Executor and so the Rent which the Executor had is extinguished by unity of possession Object And whereas it hath been objected That although the term does first vest in the Executor yet when he assents to the Devise he is then immediately in by the Devisor and therefore the Rent is not extinct Answer I answer That there the agreement does divest all the Estate that the Devisor had gained by his entry but in our case the woman hath as high and right an Estate in the Land as she hath in the Rent and although there be a possibility of severing the Land from the Rent yet that cannot revive the Rent being extinct as if one hath Land of the part of his Father and hath a Rent out of the said Land of the part of his Mother the Rent is extinct and cannot be divided although he dye without issue And that the Wife hath as high Estate in the Land as she hath in the Rent appears in Cook 6 Rep. Sanders Case where if an Executor commits waste before he assent to the Legacy an Action of waste lies against him which proves that the Executor hath the term And although the Devisee after his assent is in by relation by the Devisor yet this will not ayd the Rent no more then if a Son having Rent out of his Fathers Land and the Father dyes and the Son endows his Wife this shall not revive the Rent which was extinct before yet is the Wife in as of the Estate of her Husband and the Estate and possession of the Son is utterly defeated But admit that the Rent be not extinct yet here is no agreement to have the Rent for here are two Devises 1. Of the Land to the Wife if she continue unmarryed the remainder to Thomas Butler and the other of twenty pounds Rent to commence after her marriage wherefore the assent of the Executrix to the Devise of the Land is no execution of the Devise of the Rent Comment 5. 21. B. Welden and Elkingtons Case If a Termor deviseth a Rent or a
in Bar to wit the Fine with proclamations pleaded by Mary Taylor and the warranty pleaded by Robert Leigh and 28 others of the Ter-tenants or by any of these pleas or not And as to the first If he in remainder depending upon an estate in Tayl may maintain a Writ of Error to reverse a Recovery against the first Tenant in Tayl after his death without issue And I conceive clearly that he in the remainder shall have a Writ of Error for the Writ of Error doth always pursue the nature of the Land and not the privity of the blood And therefore 5 H. 8. the Writ of Error shall go with the Land and therefore the Heir in special tayl shall have it although there be another Heir at the Common-Law And so in Fitz Herb. N. B. 21 K. He who is Heir to the Land that is lost shall have a Writ of Error and not the Heir at Common-Law as if Land in Borough-English be lost by erroneous Iudgment the younger Son shall have a Writ of Error and 3 H. 4. 19. The Heir in special tail shal have the Writ of Error although there be another Heir at the Common Law And 1 Mariae Dyer 90. Verneys Case The Writ of Error shall be brought by him who had the thing whereon erroneous Iudgment was given And as the especial Heir shall have the Writ of Error so shall he also in remainder or reversion upon an Estate for life after the death of the Tenant for life 4 H. 8. 21 H. 6. 29. But the sole Objection that hath any coulor against this was Object that this Writ of Error ought to be given to him in remainder by the Common-Law for it is not given by the Statâ—te of the 9th of Rich. 2. and then there can be no remainder upon an Estate tail at the Common-Law and therefore he in such remainder cannot have any Writ of Error But this is easily answered for the Common-Law being Answer that when an erroneous Recovery is had against a pâ—rticular Tenant that he in the Reversion or Remainder shall have a Writ of Error after the determination of the particular Estate it follows that when this new particular Estate is made by the Statute of Westm 2. he in the remainder shall have the same remedy And this is proved by the case of the Tenant in Tayl for although that his Estate was not at the Common-Law yet now he shall have all Actions which the Common-Law gives to a Tenant in fee which may stand with his Estate and therefore he shall have a Writ of Escheat a Quod permittat Nat. B. 124. 4 Ed. 5. 48. Nat. B. 212. and so he shall have an Assize and many other Writs which lie for a Tenant in fee at the Common-Law And for Authorities in this point Dyer 188. That he in the remainder after the Estate-tail spent shall have a Writ of Error and so is it in Dyer 40. in Verneys Case And in the 3 Rep. fol. 3. B. if is resolved that he who hath a remainder expectant upon an Estate in Tayl shall have a Writ of Error upon a Iudgment given against the Tenant in Tayl although there were no such remainder at the Common-Law for when the Statute de Donis Conditionalibus does enable the Donor to limit a remainder upon the Estate-tail all actions which the Common-Law doth give to the privies in Estate are by the same act as incidents tacitly given also according to the rule of the Common-Law and therefore as he in Reversion or Remainder upon an Estate for life shall have a Writ of Error by the Common-Law upon a Iudgment given against a Tenant for life although that they were not parties by Hyde Pryer Voucher c. so since the Statute de Donis conditionalibus shall he have who hath a Reversion or Remainder expectant upon an Estate in Tayl. And therefore I conceive the Writ of Error is good notwithstanding that Objection But now it is to be considered if this Plea of non-tenure shall avoyd the Writ of Error and I conceive it will not for three Reasons 1. I conceive that it is no plea to abate the Writ for the Plaintiffs might have reversed the Recovery against the Lessors of the Reversion onely without having made the Ter-tenants parties for the Writ of Error being grounded upon the Recovery does always lie against the parties to the Iudgment and their Heirs and may be reversed against them although they have nothing in the Land and this is clear by Nat. Brev. 107. and 26 Assis 12. A Writ of Error does lie against him who recovers and after the Error found a Scire facias shall issue against the Tenant and 42 Assis 22. and 44 Ed. 3. and 10 Ed. 4. 13. Non-tenure is no plea in a Writ of Error for the party to the Iudgment or his Heir And here in this case if those who have pleaded Non-tenure are not Tenants they are at no loss for they can lose nothing but this plea does discharge themselves onely and the Scire facias remains good against the Heirs and the other Ter-tenants 2. If Non-tenure could be a good Plea for the Ter-tenants in a Scire facias yet at the least it ought to be in such a Scire facias wherein the Ter-tenants are named and not in such a general Writ as this is For here the Plaintiffs have pursued their Scire facias in as good a form as may be viz. generally against the Heirs and the Ter-tenants and if there be any default it is in the Sheriff who hath returned those to be Tenants who indeed are not so and it shall be very hard if the Writ should abate for default of the Sheriff 20 Ed. 3. Scir facias 121. In a Scire facias on a Recognizance against the Ter-tenants it was said that one of them that ware warned had but a Lease for years of such a one who had the Freehold Iudgment of the Writ c. And there Birton said That the Sheriff had a general command to warn the Ter-tenants wherefore this is no Plea to the Writ And Hill and Wilby answered that it was otherwise for that the Plaintiffs at their peril should name the Ter-tenants in their Writ whereupon there was a new Writ Whereupon I observe that if the Writ be special naming the Ter-tenants as it was anciently then it ought to be so but of late such course hath been changed as appears by the 8 of H. 4. 18. and the Writ awarded generally and therefore such special Non-tenure shall be a good Plea for it is the default of the Plaintiff to pursue his Writ against one who is not Tenant but when the Writ is general Non-tenure is no Plea to the abatement of the Writ 48 Ed. 3 15. 8 H. 18. 48 Assis 2. and the 2 H. 4. 18. B. In a Writ of Account against the Sheriff of Northumberland of a Receit in Newcastle upon Tine and it was pleaded that Newcastle was
this warranty and thereupon they have recovered in value wherefore this Warranty is utterly determined 23 Edw. 3. Recover in value 12. If one upon a warranty vouch and recover in value and then is impleaded of the Land recovered in value he shall not vouch againe because the warranty wâ—s once executed The warranty is determined by the reverting of the Estate to whom it was annexed for when Katherine died Thomas Lea was to warrant the Land to the Conusees and after his death he had the Entire Fee-simple of the Land 22 of Edward the third 1. In Dower by Nicholas Powes and his wife the Tenant vouched A. who was ready in Court demanded what he had to bind him to warranty who said that the said A. B. his wife had rendred to him the said Tenements by Fine and obliged them and the Heirs of the wife to warranty and said that the wife was dead and had a Son and Heir who was liable to the warranty before him Iudgment of the Voucher and the Court held the Vouchment good Whereby it appears that after the death of Katherine Thomas was bound to this warranty and by his death he had a Fee-simple whereby the warranty is destroyed Littleton 169. If Tenant in Taile enfeoffs his Vncle who enfeoffs A. with warranty A. re-enfeoffs the Vncle in Fee who enfeoffs a stranger in Fee and dies without Issue the Tenant in Taile dies the Issue shall not be barred by the warranty of the Vncle because he does re-take to him as great an Estate of his first Feoffee to whom the warranty was made as the said Feoffee had from him and the cause why the warranty is defeated in this Case is because if the Warranty be in force then the Vncle shall warrant it to himself which cannot be And in one Case the Ter-tenants do claime the Estate which Thomas Lea had and therefore they cannot have a greater advantage by the warranty then he had Nat. B. 135. If one enfeoffs another with warranty and the Feoffee enfeoffs another and re-takes the Estate in Fee the warranty is determined and the 22 H. 6 22. b. accords with this because he is in of another Estate And depending the Writ of Error Viz. Trinit and Michaelm 14 Jacob. One of the Plaintiffs in the Writ of Error did dye which was pleaded by the Defendants Michaelm 14 Jacob. whereupon the Writ of Error was abated Hillar 13 Jacob. Robinson against Matthew Francis Administrator of Alban Francis Rot. 542. IN an Action of Debt on a Bond of 100 l. made the first of August 10 Jacob. The Defendant pleaded that the Intestate 20 November Plea the 11 Jac. was bound to Elizabeth Francis in 100 l. which was unpayd at the death of the Intestate and that Elizabeth marryed John Pennial John and Elizabeth brought a plea of Debt against the Defendant before the Major of London for the said 100 l. and recovered by default and had Execution of 55 l. 8 s. 5 d. and so acknowledged satisfaction c. and did further plead that the Intestate the 12 Janua 7 Jacob. did acknowledg in Chancery that he owed to the Lord Chancellor and to the Master of the Rolls 500 l. which Recovery and Recogniâ—â—nce did amount to 600 l. 8 s. 6 d. And that the Defendant for the said Execution and for payment of divers Debts of the Intestate before this Action plene administravit omnia bona Intestatoris praeterquam bona ad valentiam 100 l. which were lyable for the residue of the said Recovery and for 100 l. parcel of the said 500 l. and that he hath not nor had at the day of the Writ purchased any other goods c. saving to the value of the said 55 l. 8 s. 5 d. and the said 100 l. and did aver that the Debt recovered before the Major c. was a true and a just Debt and that the said Recovery as to 45 l. and 1 d. residue of the said 100 l. 8 s. 6 d. and the said Recovery did remain in force The Plaintiff as to the Recovery said That the said Obligation Replication upon which the said Recovery was had was made for security of the payment of 55 l. and that the said John Pennial and Elizabeth did accept the said 55 l. 8 s. 5 d. in full satisfaction of the said Iudgment and were content therewith and offered therefore to make a Release or to acknowledg satisfaction but the Defendant to defraud the Plaintiff of his just Debt did defer to have satisfaction acknowledged or to have a Release of the residue of the Iudgment and suffered the Iudgment to remain in force by fraud and covin to the intent aforesaid c. The Defendant as to the residue of the Debt Rejoynder and the acceptance of the said 55 l 8 s. 5 d. in satisfaction of the Iudgment and to the offer of Release and acknowledgment of satisfaction did demur in Law And as to the Recognizance he said that a Condition was annexed to it scil That if the Intestate his Executors or Assigns should pay 100 l. with the increase thereof to William Francis an Infant when he shall come to the age of 21 years and in the mean time shall imploy it to the benefit of the Infant according to the Will of William Francis that then the Recognizance shall be voyd and did aver that William Francis was alive and within age and that the said 100 l. was not yet payd And the Plaintiff to this did joyn in Demurrer And to the other Plea did demur in Law and the Defendant did joyn And I conceive that as to the first Demur the Plaintiff ought to have Iudgment for now it is acknowledged by the Defendant that he hath 100 l. in his hands besides the 55 l. 8 s. 5 d. delivered in Execution and he hath not shewed any sufficient cause for retaining it for when those who recovered 100 l. upon the Bond did accept 55 l. 8 s. 5 d. in full satisfaction of the Iudgment and did offer to release and acknowledg satisfaction this Iudgment in truth is discharged and cannot charge the Executor and therefore he cannot return riens en ses maines to satisfie because he is not bound to pay it Cook 8 Rep. Turners Case who brought an Action of Debt upon a Bond of 100 l. against Laurence and others Administrators of Booker The Defendants pleaded in Bar divers former Recoveries against them in Debt had that they had not Assets praeterquam bona catalla quae non attingunt ad valorem of the said Debts recovered The Plaintiff replyed that the Defendants since the Recoveries did pay part of the Debts in full satisfaction wherewith they held themselves content and offered to acknowledg satisfaction but the Defendants did refuse to agree to that to the defrauding of the Plaintiff And adjudged that the Plaintiff should recover for an Executor ought to execute his office truly Object
5 Rep. fol. 64. 2. In regard of the quality and therefore it is much debated in Wagons Case if the penalty of 5 l. were reasonable or not but here no certain penalty is set down but left to the discretion of any of the Shoomakers of Exeter and that is against the course of all Laws for when a Law is made it is necessary that the penalty thereof should be known to the end men might not offend But admitting this Order to be good yet have not the Defendants pursued the same in the taking of this Distress and that for two Reasons They have distrained before their time for the Order is That if any refuse to pay the sum assessed that then upon due proof thereof they may distrain c. and then they plead that the refusal of the Plaintiff to pay the same was duly proved before the Master and Wardens which is insufficient for when it is said upon due proof this is intended upon proof by Verdict as in 10 Ed. 4. 11. On a Bond with condition that if the Obligor proves that it was the will of A. that B. shall make an Estate to the Obligor c. this proof must be by Verdict but if it be to be proved before J. S. there it is sufficient to produce witnesses that will testifie the same and so in the fourth and fifth of Queen Mary where Buckland was bound to the Lord Ewers to produce before the said Lord sufficient witnesses to discharge a certain debt due by B. to the Lord and he pleaded that he produced W. and A. before the said Lord and that they proved that he did not ow the said Debt and agreed to be no good Plea because he did not shew how the proof was made before the said Lord. So that this Plea is utterly insufficient 1. Because no such proof can be made before the Master and Wardens as is intended by the Order 2. Because the Defendants have not shewn how the proof was made so that the Court might judg whether it were sufficient or not and so in 22 Ed. 4. 40. the Lord Lisles Case upon a Bond that if the Defendant shewed sufficent discharge of a Rent c. who pleaded that he did offer to shew a sufficient discharge and agreed to be no Plea for he ought to shew what discharge that the Court might judg thereof So in the ninth Report Case of the Abbot of Strata Marcella fol. 34. in a Quo Warranto the Defendant pleaded that the Abbot had and used divers liberties which he could not have without a Charter and resolved no Plea unless by reason of the Statute of the 32 of H. 8. cap. 20. for reviving of Liberties The Order is That upon refusal to pay the penalty and upon proof thereof the Master c. may enter into the House Booth Shop Ware-house or Cellar of the Offendor and there to distrain any of his goods c. And the Defendants have not averred that these goods were taken in any of the said places but onely at the City of Exeter Judgment And at last it was adjudged that the Plea was not good A TABLE OF THE PRINCIPAL MATTERS Contained in this BOOK Action and what words bear Action ACtion brought by a Master for beating his servant not good without saying per quod servitium amisit 48 Where no particular averment need to be in a Declaration for scandalous words 60 Thou and Waterman did kill thy Masters Cook good action ib. Grant to one against whom an action lies not to sue him within a year not good 117 Advowson The nature of it and how and in what manner to be granted 95 96 Affinity and Consanguinity Who shall be taken to be proximus Consanguinieus in a Devise 15 Appearance Where to be in person and where by Attorney 73 74 Where the Husband shall appeare alone and where with his Wife 74 Arbitrement Where the Arbitrement in part shal be a good award for that part although the agreement be to end all controversies 90 91 Authority and Licence To revoke how to be performed 21 Authorities and Licenses strictly to be performed 114 115 License not to be assigned over ib. Ayd Who shall have ayd of the King 87 88 89 Baron and Feme WHere the Husband shall appear alone his Wife being within age and where she shall appear by her Guardian with her husband 74 75 Vid. Appearance Buying and selling Things sold and warranted by the Vendor to be good In what cases good 127 Diversity between things necessary and not necessary as to the warranting of them 128 By-Law How a Custom to make By-Laws to restrain a legal Trade or Art shal be good and how not 140 141 Common WHat priviledge the Owner of the soil hath in a Common and what priviledge the Commoner hath 5 10 Vid. Prescription Remedy for him that is disturbed of his Common 10 Commoner may distraine damage feasant ib. Prescription to hunt and kill Conies in a Common not good 11 Prescription of Common in a Forest Vid. Prescription Condition and Limitation WHat time shall be limited in Law to make an estate upon Condition 41 Conspiracy Where Jurors cannot be said to be guilty of Conspiracy Vid. Jury Conspiracy cannot be where the Indictment is insufficient 132 Copyhold What shall be taken to imply an admittance 82 Copyholder necessary to be admitted and what estate he hath without admittance 82 83 Where the estate surrendred remains until admittance 84 Court and Processe in Courts Records of a Court the effectuall proofs of the Law of things tried in that Court 21 Presidents and Costome of a Court makes a Law in that Court ib. Devises Testator and Executor c. WHere words of limitation comming after the estate in a Devise shall abridge the estate devised 1 2 3 Devise to a man and his heirs quod si contingat c. where those words shall make a limited fee or estate Tail or other estate 3 Where the Act of the Executor shal not be said to be the Act of the Testator 47 Where an Executor shall not have choice to take as a Devisee 54 Where the assent of the Executor to the devise of the Land shall not be accounted any Execution as to the Devise of the Rent out of the same Land and where otherwise 55 Where a perpetual charge devised to be paid out of Land shall make the party that is to pay the same tenant in fee-simple 85 How far the intent of the Devisor shall be admitted and how largely observed 85 105 106 135 Dower Certainty ought to be in the demand of Dower as wel as in the writ 56 Ecclesiastical Persons WHere the confirmation of the Patron and Ordinary of a charge made by the Incumbent is good and where not 95 Leases made by the Incumbent and confirmed by Patrons or others where good and where not ib. Leases made by the Incumbent which are void and what are voidable and