shall not alien or sell the Lands given to her from the Heirs Male of her Body lawfully to be begotten but to remain upon default of such Issue to W. and the Heirs Males of his Body to be begotten according to the true intent and meaning of this my Will Dorothy Hopkins had Issue Richard who had Issue Henry who had Issue a Daughter now the Defendant The Question was Whether the Son of Dorothy did take an Estate Tail by this Will to him and to the Heirs of his Body in general or an Estate in Tail Male This Case was argued in Michaelmas Term 36 Car. II. And in the same Term a year afterwards by Council on both sides Those who argued for the Plaintiff held that the Son had an Estate in Tail Male and this seems plain by the intention of the Testator that if Dorothy had Issue Daughters they should have no benefit for no provision is made for any such by the Will and therefore the Daughter of her Son can have no Estate who is more remote to the Testator This is like the Case of Conveyances Turnam vers Cooper 2 Cro. 476. Poph. 138. id 25 Ass pl. 14. wherein the Habendum explains the generality of the precedent words as if Lands be given to Husband and Wife and to their Heirs habendum to them and the Heirs of their Bodies Remainder to them and the Survivor to hold of the chief Lord with Waranty to them and their Heirs this is an Estate Tail with a Feé expectant So it is here tho' the first words in the Will extend to Heirs which is general yet in the Memorandum 't is particular to Heirs Males and the words Heirs and Issues are of the same signification in a Will The Memorandum is a confirmation of the Will Ex parte Def. and the construction which hath been made of it is not only inconsistent with the Rules of Law but contrary to the intent of the Testator and against the express words of his Will Cases upon Wills are different from those which arise upon Deeds because in Conveyances subsequent words may be explanatory of the former but in Wills the first words of the Testator do usually guide those which follow As if Land be devised for Life Dyer 171 a. 1 And. 8. id Golds 16. Moor 593. Remainder to F. and the Heirs Males of his Body and if it happen that he dye without Heirs not saying Males the Remainder over in Tail this was held not to be a general Tail but an Estate in Tail Male therefore the Daughter of F. could not inherit Now to construe this to be an Estate Tail Male doth not only alter the Estate of the Sons of Dorothy but of the Issue of W. and nothing is mentioned in this Memorandum of the Limitation over to Jones so that the whole Will is altered by it But this Memorandum cannot enlarge the Estate of Dorothy because 't is inconsistent with the intention of the Testator who gave her only an Estate for Life by the Will but if she should have an Estate Tail she might by Fine and Recovery bar it and so alien it contrary to his express words Besides there is no Estate limited to Dorothy by this Memorandum and she having an express Estate for Life devised to her by the Will it shall never be enlarged by such doubtful words which follow As where a Man had 100 Acres of Land 2 Leon. 226. Moor 593. called by a particular Name and usually occupied with a House which House he lett to S. with 40 Acres parcel of that Land and then devised the House and all the Lands called by that particular Name c. to his Wife Adjudged she should only have the House and the 40 Acres and that the Devise shall not be extended by implication to the other sixty Acres So that to make the design of this Will and Memorandum to be consistent the latter words must be construed only to illustrate the meaning of the Testator in the former Paragraph of the Will and must be taken as a farther declaration of his intention Viz. that the Heirs Males mentioned in the Memorandum is only a description of the Persons named in the Will The Law doth usually regard the intention of the Testator and will not imply any contradictions in his Bequests The Court was of Opinion that it was a plain Case Judicium for in the Limitation 't is clear that 't is a general Tail and it doth not follow that the Testator did not design any thing for his Grandaughters because no provision was made for Daughters For where an Estate is entailed upon the Heirs of a Man's Body if he hath a Son and a Daughter and the Son hath Issue a Daughter the Estate will go to her and not to the Aunt Now this Memorandum doth not come to make any alteration in the Limitation because it directs that the Estate shall go according to the true intent and meaning of the Will and is rather like a Proviso than an Habendum in a Deed. And therefore Iudgment was given accordingly for the Defendant DE Term. Sancti Mich. Anno 1 Jac. II. in Banco Regis 1685. Hicks versus Gore ON Tuesday the 17th day of November there was a Trial at the Barr by a Somerset-Shire Iury in Ejectment The Case was thus The Plaintiff claimed the Lands by virtue of the Statute of 4 5 Ph. Mar. cap. 8. by which 't is enacted That it shall not be lawful for any person to take away any Maid or Woman Child unmarried and within the Age of sixteen years from the Parents or Guardian in Soccage and that if any Woman Child or Maiden being above the Age of twelve years and under the Age of sixteen do at any time assent or agree to such person that shall make any Contract of Matrimony contrary to the Form of the Act that then the next of Kin of such Woman Child or Maid to whom the Inheritance should descend return or come after the decease of the same Woman Child or Maid shall from the time of such Assent and Agreement have hold and enjoy all such Lands Tenements and Hereditaments as the said Woman Child or Maid had in Possession Reversion or Remainder at the time of such Assent and Agreement during the Life of such person that shall so contract Matrimony and after the decease of such person so contracting Matrimony that then the said Land c. shall descend revert remain and come to such person or persons as they should have done in case this Act had never been made other than him only that so shall contract Matrimony Benjamin Tibboth being seised in Fee of the Lands in question to the value of 700 l. per annum had Issue a Son and four Daughters the Son had Issue Ruth his only Daughter who was married to the Defendant Gore her Father died in the time of her Grandfather and her Mother
c. yet one Commoner may bring an Action against his Fellow besides in this Case they are not Tenants in Common for every Man is seized severally of his Freehold Adjornatur Ayres versus Huntington AScire Facias was brought upon a Recognizance of 1000 l. Amendment of the word Recuperatio for Recognitio after a Demurrer to shew cause quare the Plaintiff should not have Execution de praedictis mille libris recognitis juxta formam Recuperationis where it should have been Recognitionis praed And upon a Demurrer it was held that the words juxta formam Recuperationis were Surplusage The Record was amended and a Rule that the Defendant should plead over Mather and others versus Mills THE Defendant entred into a Bond to acquir Non damnificatus generally where 't is a good Plea discharge and save harmless a Parish from a Bastard Child Debt was brought upon this Bond and upon Non damnificatus generally pleaded the Plaintiff demurred and Tremain held the Demurrer to be good for if the Condition had been only to save harmless c. then the Plea had been good but 't is likewise to acquit and discharge c. and in such Case Non damnificatus generally is no good Plea 1 Leon. 71. because he should have shewed how he did acquit and discharge the Parish and not answer the Damnification only E contra E contra 2 Co. 3. 2 Cro. 363 364 2 Sand. 83 84. It was argued that if the Defendnat had pleaded that he kept harmless and discharged the Parish such Plea had not been good unless he had shewed how c. because 't is in the affirmative but here 't is in the negative viz. that the Parish was not dampnified and they should have shewed a Breach for though in strictness this Plea doth not answer the Condition of the Bond yet it doth not appear upon the whole Record that the Plaintiff was dampnified and if so then he hath no cause of Action Iudgment for the Defendant DE Term. Sanctae Trin. Anno 1 Gulielmi Mariae Regis Reginae in Banco Regis 1689. Memorandum That on the 4th day of November last past the Prince of Orange landed here with an Army and by reason of the Abdication of the Government by King James and the Posture of Affairs there was no Hillary-Term kept Coram Johanne Holt Mil ' Capital ' Justic Gulielmo Dolben Mil ' Justiciar Gulielmo Gregory Mil ' Justiciar Egidio Eyre Mil ' Justiciar Kellow versus Rowden Trin. 1 Willielmi Mariae Rotulo 796. IN Debt by Walter Kellow Where the Reversion in Fee is expectant upon an Estate Tail and that being spent it descends upon a collateral Heir he must be sued as Heir to him who was last actually seized of the Fee without naming the intermediate Remainders Executor of Edward Kellow against Richard Rowden The Case was this viz. John Rowden had Issue two Sons John and Richard John the Father being seized in Fee of Lands c. made a Settlement to the use of himself for Life the Remainder to John his eldest Son in Tail Male the Remainder to his own right Heirs The Father died the Reversion descended to John the Son who also died leaving Issue John his Son who died without Issue so that the Estate Tail was spent Richard the second Son of John the elder entred and an Action of Debt was brought against him as Son and Heir of John the Father upon a Bond of 120 l. entred into by his Father and this Action was brought against him without naming the intermediate Heirs viz. his Brother and Nephew The Defendant pleaded Quod ipse de debito praed ut filius haeres praed Johannis Rowden Patris sui virtute scripti obligatorii praed onerari non debet quia protestando quod scriptum obligatorium praed non est factum praed Johannis Rowden pro placito idem Richardus dicit quod ipse non habet aliquas terras seu tenementa per discensum haereditarium de praed Johanne Rowden patre suo in feodo simplici nec habuit die exhibitionis billae praed Walteri praed nec unquam postea hoc parat est ' verificare unde pet judicium si ipse ut filius haeres praed Johannis Rowden patris sui virtute scripti praed onerari debeat c. The Plaintiff replied that the Defendant die Exhibitionis billae praed habuit diversas terras tenementa per discensum haereditarium a praed Johanne Rowden patre suo in feodo simplici c. Vpon this pleading they were at Issue at the Assises in Wiltshire and the Iury found a special Verdict viz. that John Rowden the Father of Richard now the Defendant was seized in Fee of a Messuage and 20 Acres of Land in Bramshaw in the said County and being so seised had Issue John Rowden his eldest Son and the Defendant Richard that on the 22th of Januarii 18 Car. I. John the elder did settle the Premisses upon himself for Life Remainder ut supra c. That after the death of the Father John his eldest Son entred and was possessed in Fee-Tail and was likewise entituled to the Reversion in Fee and died in the 14th year of King Charles the II. that the Lands did descend to another John his only Son who died 35th Car. II. without Issue whereupon the Lands descended to the Defendant as Heir of the last mentionted John who entred before this Action brought and was seised in Fee c. But whether upon the whole matter the Defendant hath any Lands by by descent from John Rowden in Fee-simple the Iury do not know c. The Council on both sides did agree that this Land was chargable with the Debt but the Question was whether the Issue was found for the Defendant in regard the Plaintiff did not name the intermediate Heirs It was argued that the Defendant ought to be sued as immediate Heir to his Father and not to his Nephew for whoever claims by descent must claim from him who was last actually seised of the Freehold and Inheritance this is the express Doctrine of my Lord Coke in his first Institutes and if so Co. Lit. 11. the Defendant must be charged as he claims Seisin is a material thing in our Law for if I am to make a Title in a real Action I must lay an actual seisin in every Man 8 E. 3.13 Bro. Assise 6. F.N. B. 212. F. 't is so in Formedons in Descender and Remainder in both which you are to run through the whole Pedegree But none can be Filius Haeres but to him who was last actually seised of the Fee-simple and therefore the Brother being Tenant in Tail and his Son the Issue in Tail in this Case they were never seised of the Fee 1 Inst 14. b. for that was expectant upon the Estate Tail which being spent then John the Father was last seised thereof and
an Inn-keeper or common Carrier 't is usual to declare secundum legem consuetudinem Angliae for 't is not a Custom confined to a particular place but 't is such which is extensive to all the King's People The word Consuetudo might have been added 1 Inst 182. but it imports no more than Lex for Custom it self is Law If the Custom of Merchants had been left out the Defendant had then pursued his Covenant for if a Man agrees to pay Mony to such a person or his Assigns and he appoints the payment to another a tender to that person is a good performance of the Covenant But the Court were of Opinion that this was not a good Plea Panton versus the Earl of Bath A Scire Facias to have Execution of a Iudgment obtained in the Court of Oliver late Protector of England and the Dominions and Territories thereunto belonging Where the Pleading is good in substance tho' there is a small variation it will not hurt and in reciting the Iudgment 't is said that it was obtained before Oliver Protector of England and the Dominions thereunto belonging leaving out the word Territories And upon a Demurrer Mr. Pollexfen held this to be a variance Yelv. 212. Orde versus Moreton and like the Case where a Writ of Error was brought to remove a Record in Ejectment directed to the Bishop of Durham setting forth that the Action was between such Parties and brought before the said Bishop and seven other persons naming them and the Record removed was an Ejectment before the Bishop and eight others so that it could not be the same Record which was intended to be removed by the Writ E contra E contra It was said suppose the word Scotland should be left out of the King's Title would that be a variance The Iudicature in this Case is still the same and the Pleading is good in Substance and of that Opinion was the whole Court Hyley versus Hyley HYley had Issue W. Where the Reversion in Fee shall pass in a Will by the words viz. Remaining part of my Estate his eldest Son who had Issue Peter Charles John He by Will devised 1000 l. to his eldest Son and several parcels of Land to other Legatees Then he gave to Peter Lands in Tail Male To John a Mansion House now in question in Tail Male He devised another House to his Grandson Charles in like manner And all the rest and remaining part of his Estate he devised to his three Grandsons equally to be divided amongst them that only excepted which he had given to Peter Charles and John and to the Heirs of their Bodies whom he made Executors Then by another Clause he devised viz. That if either of his Executors die without Issue then the part or parts of him so dying shall go to the Survivor or Survivors equally to be divided John the youngest Grandson dyed without Issue and the question was whether the Reversion of his House shall be divided between his surviving Brothers or descend to his Heir And it was adjudged that the Exception in the Will did comprehend the Reversion in Fee and that it did not pass but without such an Exception it had passed * Allen 28. as where a Man devised his Mannor to another for years and part of other Lands to B. and his Heirs and all the rest of his Lands to his Brother in Tail it was held that by these words the Reversion of the Mannor did pass Anonymus NOTA. An Infant having entred into a Statute brought an Audita Querela to avoid it he was brought into the Court and two Witnesses were sworn to prove his Age and then his Appearance and Inspection were recorded he was bound in this Case with two other persons for 1600 l. and had no more than 200 l. for his share Lydcott versus Willows IN Ejectment A special Verdict was found viz. Devise of an Hereditament carries the Reversion in Fee that the Testator being seized in Fee of certain Houses in Bedfor-Bury and in Parker's Lane did by Will devise his Houses in Parker's Lane to charitable Vses then he gave several specifick Legacies to several persons named in the said Will and then he devised his Houses in Bedford-Bury to Edward Harris and Mary his Wife for their Lives then follow these words viz. The better to enable my Wife to pay my Legacies I give and bequeath to her and her Heirs all my Mesuages Lands Tenements and Hereditaments in the Kingdom of England not before disposed of c. The Question was whether this Devise would carry the Reversion of the Houses in Bedford-Bury to his Wife Adjudged that it did not but that it ought to go to the Heir of the Testator who was Plaintiff in this Case It being found that Harris and his Wife were dead and that the Wife who was Executrix had sufficient Assets to pay the Legacies without the Reversion But Iustice Powel was of another Opinion for that the word Hereditament imports an Inheritance and if it had devised thus viz. the Inheritance not before disposed of the Reversion had passed Afterwards a Writ of Error was brought in the Exchequer-Chamber upon this Iudgment 2 Vent 285. and according to the Opinion of Iustice Powel the Iudgment was reversed Nota. A Rule of Court was made that no Certiorari should go to the Sessions of Ely without Motion in Court or signing of it by a Iudge in his Chamber But Mr. Pollexfen insisted that the Sessions there did not differ from other Courts and Franchises for the inferior Courts in London are of as large a Iurisdiction as any and yet a Certiorari goes to them and so it ought to go to Ely for 't is the Right of the Subject to remove his Cause hither Their course in the Royal Franchise of Ely is to hold the Sessions there twice a year viz. in March and September in which two Months the Iudges are seldom in Town and if this Court should deny a Certiorari the Court of Common Pleas would grant it Attorney General contra This Franchise of Ely is of greater Priviledge and Authority than any inferior Court for it hath many Regalia though 't is not a County Palatine A Certiorari will not lie to the Grand Sessions nor to a County Palatine to remove Civil Causes 't is true it lyeth to remove Indictments for Riots and this Franchise being truly called Royal hath equal priviledge with a County Palatine and therefore a Certiorari will not lie But no Rule was made Osborn versus Steward TRespass Distress for an Heriot where it may be taken The Case upon the Pleadings was this viz. A Lease was made of Land for 99 years if Margery and Dorothy Upton should so long live reserving a yearly Rent and an Heriot or 40 s. in lieu thereof after the death of either of them Provided that no Heriot shall be paid after the death of Margery living
so his Son is justly and rightly sued as Son and Heir In some Cases the persons are to be named not by way of a Title but as a Pedigree as if there be Tenant for Life the Reversion in Fee to an Ideot and an Vncle who is right Heir to the Ideot levied a Fine and died living the Ideot leaving Issue a Son named John who had Issue William who entred the Question was whether the Issue of the Vncle shall be barred by this Fine It was the Opinion of two Iudges that they were not barred because the Vncle died in the life-time of the Ideot and nothing attached in him March 94. Cro. Car. 524. and because the Issue claim in a collateral Line and do not name the Father by way of Title but by way of Pedigree But Iustice Jones who hath truly Reported the Case Jones 456. was of Opinion that the Issue of the Vncle were barred because the Son must make his Conveyance from the Father by way of Title The Iury have found that the Reversion did descend to the Defendant as Heir to the last John 't is true it descends as a Reversion but that shall not charge him as Heir to the Father Jenk's Case 1 Cro. for the other was seised of the Estate Tail which is now spent and the last who was seised of the Fee was the Father and so the Defendant must be charged as his Heir 'T is likewise true that where there is an actual Seisin you must charge all but in this Case there was nothing but a Reversion Tremaine Serjeant for the Defendant In this Case the Plaintiff should have made a special Declaration for the Estate-Tail and the Reversion in Fee are distinct and seperate Estates John the Nephew might have sold the Reversion and kept the Estate Tail if he had acknowledged a Statute or Iudgment it might have been extended and if so then he had such a Seisin that he ought to have been named A Man becomes bound in a Bond and died Debt is brought against the Heir it is not common to say that he had nothing by descent but only a Reversion expectant upon an Estate Tayl. In the Case of Chappel and Lee Covenant was brought in the Common-Pleas against Judith Daughter and Heir of Robert Rudge She pleaded Riens per descent Issue was joyned before Sir Francis North then Chief Iustice and it appearing upon Evidence that Robert had a Son named Robert who died without Issue a Case was made of it and Iudgment was given for the Defendant the Plaintiff took out a new Original and then the Land was sold so the Plaintiff lost his Debt Adjornatur Afterwards in Hillary Term a Gulielmi Mariae Iudgment was given for the Plaintiff by the Opinion of three Iustices against Iustice Eyre who argued that the Defendant cannot be charged as immediate Heir to his Father 't is true the Lands are Assets in his Hands and he may be charged by a special Declaration Dyer 368. pl. 460. In this Case the intermediate Heirs had a Reversion in Fee which they might have charged either by Statute Iudgment or Recognizance they were so seised that if a Writ of Right had been brought against them they might have joyned the Mise upon the Mere right which proves they had a Fee and though it was expectant on an Estate Tail 3 Co. 42. Ratcliff's Case yet the Defendant claiming the Reversion as Heir ought to make himself so to him who made the Gift The person who brings a Formeden in Descender must name every one to whom any Right did descend 8 Co. 88. F.N.B. 220. c. Rast Ent. 375. otherwise the Writ will abate A Man who is sued as Heir or who entitles himself as such must shew how Heir The Case of Duke and Spring is much stronger than this 2 Rol. Abr. 709. 2 Cro. 161. for there Debt was brought against the Daughter as Heir of B. She pleaded Riens per descent and the Iury found that B. died seised in Fee leaving Issue the Defendant and his Wife then with Child who was afterwards delivered of a Son who died within an hour and it was adjudged against the Plaintiff because he declared against the Defendant as Daughter and Heir of the Father when she was Sister and Heir of the Brother who was last seised But the other three Iudges were of a contrary Opinion The Question is not whether the Defendant is lyable to this Debt but whether he is properly charged as Heir to his Father or whether he should have been charged as Heir to his Nephew who was last seised It must be admitted that if the Lands had descended to the Brother and Nephew of the Defendant in Fee that then they ought to have been named but they had only a Reversion in Fee expectant upon an Estate Tail which was incertain and therefore of little value now though John the Father and Son had this Reversion in them yet the Estate Tail was known only to those who were Parties to the Settlement 'T is not the Reversion in Fee Bro. Fit Descent pl. 30.37 Ass pl. 4. but the Possession which makes the party inheritable and therefore if Lands are given to Husband and Wife in Tail the Remainder to the right Heirs of the Husband then they have a Son and the Wife dies and the Husband hath a Son by a second Venter and dies the eldest Son enters and dies without Issue and his Vncle claimed the Land against the second Son but was barred because he had not the Remainder in Fee in possession and yet he might have sold or forfeited it But here the Reversion in Fee is now come into possession and the Defendant hath the Land as Heir to his Father t is Assets only in him and was not so either in his Brother or Nephew who were neither of them chargeable because a Reversion expectant upon an Estate Tail is not Assets Iudgment was given for the Plaintiff DE Term. Sancti Mich. Anno 1 Gulielmi Mariae Regis Reginae in Banco Regis 1689. Young versus Inhabitants de Totnam AN Action was brought against the Hundred for a Robbery in which the Plaintiff declared that he was Robbed apud quendam locum prope Faire Mile Gate in such a Parish He had a Verdict And now Serjeant Tremaine moved in arrest of Iudgment and the Exceptions taken were these viz. 1. That it doth not appear that the Parish mentioned in the Declaration was in the Hundred 2. Neither doth it appear that the Robbery was committed in the High-way 3. The Plaintiff hath not alledged that it was done in the day time for if it was not the Hundred is not lyable by Law But these Exceptions were all disallowed because it being after a Verdict the Court will suppose that there was Evidence given of these Matters at the Trial so the Plaintiff had his Iudgment Eggleston al' versus Speke alias Petit.
first Son of the Body of the said Simon Leach my Brother lawfully to be begotten and to the Heirs Males of the Body of such first Son lawfully to be begotten with like Remainder in Tail Male to the second third fourth c. Sons and for default of such Issue to Sir Simon Leach my Kinsman being Son and Heir of Simon Leach of Cadley in the County of Devon ' Esquire deceased and to the Heirs Males of his Body lawfully to be begotten and for default of such Issue to the right Heirs of me the said Nicholas Leach for ever They find that Nicholas Leach died without Issue that Simon Leach his Brother and Heir with Remainder over in Contingency as aforesaid entered and afterwards married Anne the Daughter of Unton Croke and that after the said Marriage viz. 20 August 25 Car. 2. he executed a Deed purporting a * Two months before a Son was born Surrender of the said Lands and Tenements to Sir Simon Leach in manner following viz. To all Christian People c. I Simon Leach of Elsefield in the County of Oxon Esquire send greeting Know ye that I the said Simon Leach for divers good Causes and valuable Considerations me hereunto moving have granted surrendred remised released and for ever quit claimed and confirmed and by these Presents do grant surrender remise release and for ever quit claim and confirm unto Sir Simon Leach of Cadley in the County of Devon Knight of the Bath and his Heirs and Assigns for ever all and every the Mannors c. To have and to hold the same to the said Sir Simon Leach for ever They find that Simon Leach Brother of the Testator was not compos mentis at the time of the sealing and delivery of the said Surrender That on the 10th day of November 25 Car. 2. which was two Months after this Surrender made the said Simon Leach had Issue of his Body Charles Leach who is his Son and Heir that he after the death of his Father entred and made a Lease to Tompson by vertue whereof he was possessed until the Defendant Sir Simon Leach entred upon him c. Two Questions were made upon this Special Verdict 1. Whether this Surrender by a person Non compos mentis was void ab initio and so could pass no Estate to the Surrendree for if so then though the Ideot himself is estopped by his own Act yet that can be no Barr to him in the Remainder because the Act being void the Estate in Law still remains in him 2. If it is not void in its self then whether it is voidable after the death of the Party by Charles Leach he claiming by virtue of a collateral Remainder and not as Heir at Law to the Devisor As to the first Point it was argued that the Cases of Lunaticks and Infants go hand in hand and that the same Reasons govern both that the Law is clear that a Surrender made by an Infant is void therefore a Surrender made by a person Non compos mentis is also void Fleta lib. 1. c. 11. num 10. the reason is because they know not how to govern themselves And as Fleta saith Semper judicabuntur infra aetatem F.N.B. 202. a. Regist 238. b. if he makes any Conveyance of his Land the Law hath provided a remedial Writ even for himself to avoid his own Alienation His Feoffments are void 39 H. 6.42 Bract. fol. 12. no. 5. fol. 100 120. Brit. cap. 34. fol. 88. Perk. 5. pl. 21. and if Warranties are annexed those they are also void if he granteth a Rent-Charge out of his Land that is likewise void and if the Grantee should distrain for this Rent after the death of the Grantor his Heir shall have an Action of Trespas against him and therefore by parity of Reason this Surrender must be void In Fitzherbert Tit. Grantee pl. 80. there is a Case to this purpose viz. An Assize was brought against the Tenant supposing that he had no right of Entry unless under a Disseisor by whom the Brother of the Demandant was disseised The Tenant pleaded that the supposed Disseisor was the Father of the Demandant whose Heir he then was and that his said Father made a Feoffment of the Land to the Tenant with Warranty and demanded Iudgment c. The Demandant replied that his Father at that time was Non compos mentis and the Tenant was compelled to rejoin and take Issue upon the Insanity which shews that if he was Non compos he could not have made such a Feoffment So if he maketh a Feoffment in Fee and afterwards taketh back an Estate for Life Fitz. Remitter pl. 23. the Non compos shall be remitted to his ancient Title which shews likewise that such Feoffment was void for the Remitter supposeth a former Right 'T is incongruous to say that Acts done by persons of no discretion shall be good and valid in the Law such are Infants and Lunaticks and it stands with great reason that what they do should be void especially when it goes to the destruction of their Estates Therefore 't is held that if a person Non compos releaseth his right that shall not barr the King in his Life time but he shall seize the Land and if he die his Heir may bring the Writ Dum non fuit compos mentis and may enter 'T is for this reason that a Release made by an Infant Executor is no barr because it works in destruction of his Interest 5 Co. 27. Russel 's Case 34 Ass pl. 10. the reason is the same where a person Non compos maketh a Feoffment for that likewise destroys his Estate So likewise an Infant can neither surrender a future Interest by his acceptance of a new Lease Cro. Car. 502. nor make an absolute Surrender of a Term of which he is possessed for such a Surrender by Deed is void 'T is agreed that if a Man Non compos maketh a Feoffment by Letter of Attorny 't is meerly void because 't is not delivered to the Feoffee by the hands of the Feoffor but 't is said that if it be delivered by him in person then 't is only voidable at any time by Action or Entry Finch 's Law 102. And of this Opinion was Sir Henry Finch in his Discourse of the Law who in the Margen of his Book quotes several Authorities in the Year Books to justifie this Opinion and amongst the rest he cites Sir Anthony Fitzherberts Natura Brevium 35 Ass pl. 10. who taking notice of the old Authorities seems to reject their Reasons who affirm a person Non compos shall not avoid his own Act when he recovers his memory because he cannot then tell what he did when he was in his former Condition But certainly when he recovers his Iudgment he is then of Ability to consider what was done during his Insanity and to avoid such Acts by shewing how his indisposition came by the
not avoid such Acts done by their Ancestors as well as Privies in Blood because the Incapacity of the Grantor goes to both Those who argued on the other side held that the Acts of Infants and persons non compos were not void in themselves but only voidable E contra 'T is true some Deeds made by an Infant are void not meerly Cro. Car. 502. because executed by him for some are good and those only are void which are made to his prejudice Such also are void which give Authority to a third person to do an Act as if an Infant enter into a Bond Perk. Sect. 139. March 141. and give it to a Stranger to deliver to the Obligee when he shall attain his full Age this is void because the person derived his Authority from an Infant who by reason of his Nonage could not give such a Power but if the Infant himself had delivered the Bond to the Obligee it had been only voidable Lit. Sect. 259. The Father of the Demandant was an Infant when he sold his Estate 46 E. 3.34 his Son brought the Writ Dum fuit infra-aetatem against the Alienee and it was held good which would not have been allowed if the Grant had been void All the old Authorities prove that the Acts of Infants and Ideots are not void but voidable If an Infant is bound in an Obligation 't is not void Cro. Eliz. 127. 2 Inst 483. for he may agree to it when of Age he cannot plead Non est factum and he may refuse to plead his Infancy If he be entituled to a Term for years Cro. Eliz. 126. Cro. Car. 502. and maketh a Surrender by the acceptance of a new Lease 't is good if 't is for his advantage either by the lessening of the Rent or the encreasing of the Term but if he hath no benefit by it 't is voidable only So he may purchase Lands because the Law intends it for his benefit and he can receive no damage by such a Purchase for he may either perfect or avoid it at his full Age which shews that such Acts are not voidable ab intio but only voidable as the Case shall require The Statute of 23 H. 6. Enacts 23 H. 6. c. 10. That Sheriffs shall take no Bonds upon an Arrest but for the Appearance of the Party and to themselves only and that a Bond otherwise taken colore officii shall be void that is not in its self but by pleading the Statute for 't is not to be avoided by pleading Non est factum So upon the Statute of Additions 1 H. 5. c. 5. 3 Co. 59. a. where a Man is outlawed without the addition of his condition or place of abode in the original Writ such Outlawry shall be void not of its self but it may be avoided by Writ of Error In like manner there are many Authorities to prove that the Acts of a person non compos are not void but voidable So is the first Resolution in Beverly 's Case that a Deed or Feoffment made by him is to be avoided by any other person but not by himself Thus stood the Law in the time of E. 35 Ass pl. 10. 3. For in an Assize the Defendant pleaded that the Plaintiff had released to him by Deed who replied that at the time of the making of the Deed he was Non compos The Court of Common Pleas seemed then to be of Opinion that the Replication was not good which shews that the Deed in its self was not void 't is true the Assize was then adjourned because that Opinion was directly against the Register which is that the Writ of Dum non fuit compos may be brought by the person himself notwithstanding his own Alienation But this hath since been denied to be Law Cro. Eliz. 398. for in Debt upon Bond the Defendant pleaded that he was Non compos and upon a Demurrer the Plea was over-ruled And of this Opinion was Sir William Herle Chief Iustice of the Common Pleas in 5 E. 5 E. 3.70 3. which was long before the Book of Assize So the Law continued till the Reign of H. 35 H. 6. f. 42. 6. viz. that the person himself could not avoid his own Feoffment either by Entry or Action The Writs de Ideota inquirendo and Dum non fuit compos import the same thing viz. that Acts done by them are not void for the first recites that the Ideot alienavit and the other that the Lunatick * Dimisit is there intended where the Estate is conveyed by Livery or for life and Alienavit is a Conveiance by Feoffment 17 E. 2. Stamf. Praerog 34. Dimisit terras Now if their Acts had been void ab initio then they cannot be supposed either to alien or lease their Lands which shews that such Acts are only voidable And as a farther Argument to enforce this the Statute de Praerogativa Regis was mentioned which gives the Custody of the Ideots Lands to the King during their Lives provided that afterwards it be given to their right Heirs ita quod nullatenus per eofdem fatuos alienetur Now to what purpose were these Words added if such an Alienation was void in it self Besides the Cases of Ideots mentioned on the other side and Lunaticks are not parellel for an Ideot hath a different incapacity from one Non compos 't is perpetual in an Ideot and for that reason the Law gives the King an Interest in him But a person non compos may recover his Senses Co. Lit. 2. b. Fitz. tit Issue 53. he may purchase Lands may grant a Rent-charge out of his Estate and shall not plead his insanity to defeat his own act If therefore this Surrender was not void at the time of the execution thereof but voidable only during the Life of the Surrenderor by office found then the Question cannot properly be whether the Lessor of the Plaintiff shall avoid it for that would be to revest the Estate in some body but the Surrender was good and the Estate for Life was utterly determined so that nothing being left to support the contingent Remainders those are also destroied And to prove this Chudleigh 's Case was relied on which was Co. 120. Sir R. C. was seised in Fee of the Manor of Hescot in Devon and having Issue Christopher and three other Sons made a Feoffment to the use of himself and his Heirs on the Body of Mary then the Wife of Mr. Carew to be begotten and for default of such Issue then to the use of his last Will c. for ten years and after the Expiration of that Term then to his Feoffees and their Heirs during the Life of Christopher Remainder to the Issue Male of Christopher in Tail with like Remainder to his other Sons Remainder to his own right Heirs He died without Issue by Mrs. Carew But before Christopher had any Son born the
said Feoffees made a Feoffment of the Land in Fee without any consideration afterwards Christopher had Issue two Sons Now the Vses limited by the Feoffment of Sir R. C. being only contingent to the Sons of Christopher and they not being born when the second Feoffment was made to their Father the Question now was whether they shall be destroied by that Feoffment before the Sons had a Being in Nature or whether they shall arise out of the Estate of the Feoffees after their Births And it was adjudged in the Exchequer Chamber that the last Feoffment had divested all the precedent Estates and likewise the Vses whilst they were contingent and before they had an existence and that if the Estate for Life which Christopher had in those Lands had been determined by his death before the birth of any Son the future Remainder had been void because it did not vest whilst the particular Estate had a being or eo instanti that it determined So in this Case Mr. Leach cannot have any future Right of Entry for he was not born when the Surrender was made so that the contingency is for ever gone Suppose a Feoffment in Fee to the use of himself and his Wife and to the Heirs of the Survivor The Husband afterwards makes another Feoffment of the same Lands Cro. Car. 102. and dies and the Wife enters the Fee shall not vest in her by this Entry for she had no right the Husband has destroyed the contingent use by the last Feoffment so that it could not accrew to her at the time of his death Nay tho' the particular Estate in some Cases may revive yet if the contingency be once destroyed it shall never arise again As where the Testator being seized in Fee of Houses 2 Sand. 380. devised the inheritance thereof to such Son his Wife should have after her Life if she baptized him by his Christian and Sir-Name and if such Son dye before he attain the Age of 21 years then to the right Heirs of the Devisor He died without Issue the Widow married again then the Brother and Heir of the Testator before the birth of any Son conveyed the Houses thus Viz. To the Husband and Wife and to their Heirs and levied a Fine to those uses Afterwards she had a Son baptised by the Testator's Christian and Sir-Name Then the Husband and Wife sold the Houses to one Weston and his Heirs and levied a Fine to those Vses It was adjudged that by the Conveyance of the Reversion by the Brother and Heir of the Testator to the Baron and Feme before the Birth of the Son her Estate for Life was merged and tho' by reason of her Coverture she might waive the Joint-tenancy 2 Roll. Abr. 796. Wigg versus Villiers and reassume the Estate for Life yet that being once merged the contingent Remainders are all destroied Curia Cro. Car. 502. The Grants of Infants and of persons non compos are parallel both in Law and Reason and there are express Authorities that a Surrender made by an Infant is void therefore this Surrender by a person non compos is likewise void If an Infant grants a Rent-charge out of his Estate 't is not voidable but ipso facto void for if the Grantee should distrain for the Rent the Infant may have an Action of Trespass against him In all these Cases which have been cited where 't is held that the Deeds of Infants are not void but voidable the meaning is that non est factum cannot be pleaded because they have the form though not the Operations of Deeds and therefore are not void upon that account without shewing some special matter to make them of no efficacy Therefore if an Infant maketh a Letter of Attorny though 't is void in it self yet it shall not be avoided by pleading non est factum but by shewing his Infancy Some have endeavoured to distinguish between a Deed which giveth only authority to do a thing and such which conveys an interest by the delivery of the Deed it self that the first is void and the other voidable But the reason is the same to make them both void only where a Feoffment is made by an Infant 't is voidable because of the solemnity of the Conveyance Now if Simon Leach had made a Feoffment in Fee there had still remained in him such a Right which would have supported this Remainder in Contingency This Surrender is therefore void and all persons may take advantage of it Afterwards a Writ of Error was brought to reverse this Iudgment in the House of Lords but it was affirmed Cases Adj. 150. Hall versus Wybank THE Statute of Limitations is Statute of Limitations whether it extendeth to the Defendant being beyond Sea six years 21 Jac. cap. 16. that if any person be entituled to an Action and shall be an Infant Feme Covert Imprisoned or beyond Sea that then he shall bring the Action at full Age Discovert of saue Memory at large and returned from beyond Sea The Plaintiff brought an Indebitatus Assumpsit to which the Defendant pleaded non assumpsit infra sex Annos The Plaintiff replied that the Defendant was all that time beyond Sea so that he could not prosecute any Writ against him c. And upon a Demurrer Serjeant Tremaine argued that the Plaintiff was not barred by the Statute which was made to prevent Suits by limiting personal Actions to be brought within a certain time and it cannot be extended in favour of the Defendant who was a Debtor and beyond Sea because 't is incertain whether he will return or not and therefore there is no occasion to begin a Suit till his return 'T is true the Plaintiff may file an Original and Outlaw the Defendant and so seise his Estate but no Man is compelled by Law to do an act which is fruitless when 't is done and such this would be for if the Plaintiff should file an Original 't is probable the Defendant may never return and then if the Debt was 1000 l. or upwards he would be at a great Expence to no purpose or if the Party should return he may reverse it by Error 'T is a new way invented for the payment of Debts for if the Debtors go beyond Sea and stay there six years their Debts would by this means be all paid The words of the Statute do not extend to this Case for the Proviso is That if the Plaintiff be beyond Sea when the cause of Action doth accrew Cro. Car. 246. 333. that then he have shall liberty to continue it at his return yet 't is within the equity of Law for him to bring his Action when the Defendant returns who cannot be sued 'till then That Statutes have been expounded according to Equity is not now a new Position 2 Roll. Rep. 318. for Constructions have been made according to the sense and meaning and not according to the Letter of many Statutes
But if any wrong be done in this Case the Party must Appeal so no Writ of Restitution was granted Rex versus Guardianum de le Fleet. AN Inquisition being found to seize the Office of Warden of the Fleet into the King's Hands Inquisition quashed the Court of Chancery assisted with three Iudges was moved that it might be Quashed The Exceptions taken were viz. 1. 'T is found that the Defendant was Warden of the Fleet but doth not say what Estate he had therein whether for Life or years or in Fee c. 2. The Offences which are the causes of the Forfeiture are laid to be committed at the Fleet by suffering Escapes and by Extortion and 't is not found where the Fleet is scituate so there being no Visne those Offences cannot be traversed 3. 39 H. 6.32 They do not find the Escape to be sine licentia contra voluntatem of the Warden the Debts being unpaid 4. Admitting it to be a Forfeiture the Office cannot go to the King but it shall go to the next who hath the Inheritance The Opinion of the Court was that there are two things which entitle the King to this Office neither of which were found by this Inquisition 1. An Estate in the Party offending 2. A cause of Forfeiture of that Estate Now here was no Estate found in the Warden but only that the Office was forfeited by suffering of Escapes c. If this had been an Office of Inheritance ◠Co. 95. then it ought to be found that such a person was seised in Fee c. and so what Estate soever he had in it ought to be expresly found But as this is found 't is void because it doth not answer the end for which the finding of Offices was provided which is to entitle the King to the Offenders Estate An Indictment is but another sort of Office and here being no Estate found 't is much like an Indictment which finds no Offence therefore it must be quashed It might have been objected that no Man can tell what Estate the Warden had in this place and that not being known no Office could be found for the King But this Objection runs to the finding of all manner of Offices in general whose very nature is to find an Estate and to divest the subject thereof and vest it in the King Besides in this Case one of the Indentures by which the Office was granted to the Warden must be enrolled in the Court of Common-Pleas This cannot be helped by a Melius Inquirendum 3 Cro. 895. 9 Co. 95. Keilw 194. which never will support a defective Inquisition and this is such because it doth not appear that the Defendant had any Seisin or Estate in the Wardenship of the Fleet. Barker Mil ' versus Damer Hill 1 Rot. 635. AN Action of Covenant was brought by Sir William Barker who was Defendant in a former Action against Mr. Damer wherein he declared that William Barker his Father was seised in Fee of the Land in Question being in Ireland and made a Lease thereof to one Page for 31 years under the yearly Rent of 200 l. in which Lease Page did Covenant for himself his Executors Administrators and Assigns to pay the Rent to Mr. Barker his Heirs and Assigns That William Barker the Father by Lease and Release convey'd the Reversion to Sir William Barker the now Plaintiff that the Term was vested in the Defendant and assigns the breach for non-payment of the Rent The Defendant pleaded to the Iurisdiction of this Court that the Lands in the Declaration mentioned lay in Ireland where they have Courts of Record c. and so properly triable there To this Plea the Plaintiff demurr'd and the Defendant joyned in Demurrer The single Question was whether an Assignee of the Reversion can bring an Action of Covenant against the Assignee of a Lessee in any other place than where the Land is Those who argued that he may said that this Action being brought upon an Express Covenant is not local but transitory 2 Inst 231. Noy 142. 2 Cro. 142. ibidem Sid. 157. 2 Roll. Ab. 571. 1 And. 82. for debitum contractus sunt nullius loci and if it is a duty 't is so every where therefore it hath been adjudged that upon a Covenant brought in one County the breach may be assigned in another Tremain Serjeant Contra. E contra He admitted that Debt upon a Lease for years upon the Contract it self and Covenant between the same Parties are transitory Actions and may be brought any where but when once that privity of Contract is gone as by assignment of the Lessee or the death of the Lessor Latch 197. and there remains only a Privity in Law there the Action must be brought in the County where the Land lieth the reason is Hob. 37. because the Party is then chargeable in respect of the possession only Therefore it was held that where an Assignee of a Reversion of Lands in Sommersetshire brought an Action of Debt in London Cro. Car. 184. Jones 83. Dyer 40 b. upon a Lease for years made there reserving a Rent payable at London which was in arrear after the Assignment that the Action was not well brought for it ought to have been laid in Sommersetshire where the Lands were because the privity of Contract was lost by the assignment of the Reversion and therefore the Party to whom that assignment was made ought to maintain the Action upon the privity in Law by reason of the Interest which he had in the Land it self and that must be in the County where it lieth Curia There is a difference between an Action of Debt for Rent brought by an Assignee and an Action of Covenant for the first is an Action at the Common Law which hath fixed the Rent to the Reversion and therefore such an Action must be maintained upon the Privity of Estate which is always local But an Assigneé of a Reversion could not bring an Action of Covenant at the Common Law 1 Sid. 402. 3 Cro. 580. 1 Sand. 240. 32 H. 8. c. 34. for 't is given to him by a particular Statute viz. of 32 H. 8. but the Statute did not transfer any Privity of Contract to the Assignee but the intent of it was to annex to the Reversion such Covenants only which concerned the Land it self as to repair the House or amend the Fences and not to anner or transfer any collateral Covenants as to pay a Sum of Mony for that is fixed by the Common Law to the Reversion 'T is true At the Common Law an Assignee of a Reversion might have maintained an Action of Covenant for any thing agreed to be done upon the Land it self Privity of Contract is not thereby transferred so as to make the Action transitory but it must be brought upon the Privity of Estate for if a Man doth covenant to do any collateral thing not in the
certain or 't is not good 134 4. Must be taken strictly when it goes to the destruction of an Estate 224 5. A Custom that every Copyholder who leases his Land shall forfeit it doth not bind an Infant 229 6. Amongst Merchants where it must be particularly set forth 226 7. It must be certain and therefore where it was laid for an Infant to sell his Land when he can measure an Ell of Cloth 't is void for the incertainty 290 8. To have solam separalem pasturam hath been held good 291 9. Prescription must have a lawful commencement but 't is sufficient for a Custom to be certain and reasonable 292 10. Whether a Custom likewise ought to have a lawful commencement 293 D. Damages See Ejectment 3. Ioint Action 2. Trespass 2. Baron and Feme brought an Action for words spoken of the Wife and concluded ad damnum ipsorum 't is good for if she survive the Damages will go to her 120 Det See Admittance 5. Assignment 1. Iudgment 1. Quantum meruit Where 't is brought upon a Specialty for less than the whole Sum it must be shewed how the other was discharged 41 2. Whether it lies for a Fine upon an admission to a Copyhold Estate for it doth not arise upon any Contract 240 3. There must be a personal Contract or a Contract implyed by Law to maintain an Action of Debt ibid. Deceit See Action on the Case Deputy See Office 6 7 9. Devise See Tail Where it shall not be extended by implication 82 2. Where the word Estate passeth a Fee where not 45 105. 3. I give All to my Mother passeth only an Estate for Life for the Particle All is a Relative without a Substantive 32 4. To A. and the Testator's Name is omitted in the Will yet 't is good by averring his Name and proving his Intention to devise it 217 5. The Testator after several Specifick Legacies and Devises of Lands gave all the rest and remaining part of his Estate c. by those Words the Reversion in Fee passed 228 6. By the Devise of an Hereditament the Reversion in Fee passeth 229 Disseisin See Election 1. Interest 2. The Son Purchased in Fee and was disseised by his Father who made a Feoffment with Warranty the Son is bound for ever 91 2. Lessor made a Lease for Life and died his Son suffered a Common Recovery this is a Disseisin ibid. 3. Where an Estate for Life or years cannot be gained by a Disseisin ibid. 4. A wrongful Entry is never satisfied with any particular Estate nor can gain any thing but a Fee-simple 92 Distribution Before the Statute if there was but one Child he had a right of Administration but it was only personal so that if he died before Administration his Executor could not have it 62 E. Ejectment THE Demise was laid to be the 12th of Junii habendum a praed duodecimo die Junii which must be the 13th day by vertue whereof he entred and that the Defendant Postea eod 12 die Junii did Eject him which must be before the Plaintiff had any Title for his Lease commenced on the 13th day not good 199 2. De uno Messuagio sive Tenemento not good because the word Tenementum is of an incertain signification but with this addition vocat ' the Black Swan 't is good 238 3. If the Term should expire pending the Suit the Plaintiff may proceed for his Damages for though the Action is expired quoad the possession yet it continues for the Damages 249 Election Where the Cause of Action ariseth in two places the Plaintiff may choose to try it where he pleases 165 2. Tenant at Will made a Lease for years the Lessee entreth this is no disseisin but at the Election of him who had the Interest in it 197 Entry In Feoffments Partitions and Exchanges which are Conveyances at the Common Law no Estate is changed until actual Entry 297 2. Lease for years not good without Entry 297 3. Tenant for Life Remainder in Tail Male levied a Fine and made a Feoffment having but one Son then born and afterwards had another Son the eldest died without Issue the Contingent Remainder to the second was not destroy'd by this Feoffment for it was preserved by the right of Entry which his elder Brother had at the time of the Feoffment made 305 Escape Debt upon an Escape would not lie at the Common Law against the Goaler it was given by the Statute of W. 2. 145 2. The superior Officer is liable to the voluntary Escapes suffered by his Deputy unless the Deputation is for life 146 3. If an Escape is by negligence it must be particularly found 151 4. A person was in Execution upon an erroneous Judgment and escaped and Judgment and Execution was had against the Gaoler and then the first Judgment was reversed yet that against the Gaoler shall stand 325 Evidence See Witness An Affidavit made in Chancery shall not be read as Evidence but only as a Letter unless Oath is made by a Witness that he was present when it was taken before the Master 36 2. What shall be Evidence of a fraudulent Settlement ibid. 3. An Answer of a Guardian in Chancery shall not be read as Evidence to conclude an Infant 259 4. Whether the return of the Commissioners in a Chancery Cause that the person made Oath before them is sufficient Evidence to convict of Perjury 116 5. Whether a true Copy of an Affidavit made before the Chief Justice is sufficient to convict the person for the like Offence 117 6. A Verdict may be given in Evidence between the same Parties but not where there are different persons unless they are all united in the same interest 142 7. Conviction for having two Wives shall not be given in Evidence to prove the unlawfulness of a Marriage but the Writ must go to the Bishop because at Law one Jury may find it no Marriage and another otherwise 164 Exchange Ought to be executed by each Party in their Life time otherwise 't is void 135 Excommunication Stat. 5 Eliz. For not coming to the Parish Church the Penalties shall not incurr if the person hears Divine Service in any other Church 42 2. The Causes are enumerated in the Statute which must be contained in the Significavit otherwise the Penalties are not to incurr 89 Executor See Grants Notice 5. Whether an Executor de son tort can have any interest in a Term for years 91 93 2. An Executor may sell the Goods before Probate 92 3. May pay Debt upon a simple Contract before a Bond of which he had no notice 115 4. Whether an Action of Debt will lie against an Executor upon a Mutuatus 5. By what words he hath an Authority only without an Interest in the thing devised 209 210 6. He had both Goods of his Testator and of his own and granted omnia bona sua that which he hath as Executor will not pass for
computation of the price of Provisions and other Necessaries in 2 H. 5. and how they encreased in Value from that time till the Queen's Reign it may be reasonably affirmed that 40 s. per Annum about the time when that King lived would bear an equal proportion to 40 l. a year in her Reign and if so it may as reasonably be said that 4 l. per Annum in her days would almost bear the like proportion to 80 l. per annum now because of the vast encrease of Riches by Commerce and otherwise in this last Age and such an Estate doth now qualifie a Man to be of the Grand Jury The 40 s. per annum in King H's Reign was esteemed a sufficient Estate to supply all the common Necessities of Life Wheat being then sold for 12 d. per Quarter and good Gascoign Wine for 40 s. per Tun. It was an Age when 20 Marks per Annum was a very good Allowance to maintain a Student at the Inns of Court but too great a Charge for a Commoner to bear and therefore the Lord Chancellor Fortescue tells us that none but the Sons of Noblemen in Hospitiis illis Leges addiscebant The Jurors in those days were all Knights but are now mean and illiterate persons for 't is a very poor Estate which qualifies them for that Service How can Matters of Fact which often require great Examination be tryed by Men of such narrow Capacities which are generally found amongst Men of 10 l. per Annum for so it will be so long as the Degrees of Fortune make such a vast inequality amongst us Experience teacheth us that Men of such low Fortunes and whose Education is generally amongst the Beasts of the Plow have not the same sense of Honour and Vertue with Men of more elevated Qualities and Conversation there must be danger of Subornation and Perjury among such Jurors And what will the villanous Judgment in Attaint signifie I mean in respect to their Estates viz. That their Goods be confiscate their Lands and Possessions seised into the King's Hands their Houses demolished their Woods felled and their Meadows plowed This is a very dreadful Sentence to a Man of a good Estate which by the very Form of this old Judgment every Juror was supposed to have but 't is an empty sound to a Man of 10 l. per Annum who cannot have all those Possessions and but a very small proportion of either It may be therefore thought necessary that a farther Provision be made that none should be impanelled to try such Issues but Men of 40 l. per Annum or at least such as like the Jurors in Attaint qui multa majora habent Patrimonia than what will qualifie a Petty Juror at this day Gentlemen The following Collection is the Product of your Labours It was borrowed from you at the Bar and 't is but just to restore it I know Men have generally very faint Inclinations to approve any Writings beside their own and seldom declare in favour of a Book till they hear what success it has in the World and even then are biassed by the Multitude who very often condemn without reading or read without Understanding I have heard it often objected though I am still to learn upon what accompt that we have too many Printed Books of the Law already and that it was more certain and intelligible when fewer Volumes of it were published I must confess some of the late Reports are collected with very little Judgment But still there is a necessity of new Books tho' not of such for I would feign know how any Lawyer can now be able to advise his Client with the help and direction only of the Old Books 'T is true we have but few of them but 't is because in former Ages all Causes where the thing in demand did not exceed 40 s. were tried either in the County Court in the Hundred Court or in the Court Baron of the Mannor In those days the great Courts of Record at Westminster were not so full of Suitors as now When Bracton wrote the Justices in Eyre who had the same Power with our Justices of Assise went their Circuits but once in seven years and a long time afterwards even in the Reign of King Henry the Eighth the Judges would often rise from the Bench in Term-time without hearing a Motion or trying of a Cause and I think the Practice did not much encrease till this last Age for Anno 10 Eliz. there was but one Serjeant at the Common-Pleas Barr for a whole Term together and that was Serjeant Bendloes and I do not read that he had any Business there Nay at that time the Court of Chancery had no greater share of Practice than the Courts of the Common Law for in the two and twentieth Year of King Henry the Eighth Sir Thomas Moor being then Lord Chancellor did usually read all the Bills which were exhibited into that Court but Business is now so much encreased that all the Council can scarce find time enough to read the Briefs of such Bills which are filed every Term. But the Law hath now its Residence in Westminster-Hall most Causes of Value are there determined and the great Number of Country Attornies in our days who according to my Lord Coke's Opinion by dayly multiplying Suits have so wonderfully encreased the Business of those Courts that it seems very necessary that the judicial determinations there should by new Books be transmitted to future Ages And though some Cases in this Collection which were adjudged in the late Reign may not have the Authority of Presidents because they taste a little of the Times wherein the Administration of Justice was not so nicely regarded as the Dispensation of such things which were then thought Political Rights yet the Reader will find some good Arguments of Learned Men then at the Bar who endeavoured to support our sinking Laws I do acknowledge that if Men were just honest and impartial to themselves and others there would be no occasion for Books of this nature and because they are not so I will not make an Apology for the Publishing of this I think the Book being done with so much Care may be of good use to the Professors of the Law but submit it to your Judgments I confess I am led by my Profession to Affairs of this nature though my Circumstances disingage me from the suspicion of being an Author Vale. A TABLE OF THE CASES Contained in the THIRD PART OF Modern Reports A. ALdridge versus Duke 110 Ashcomb versus Inhabitants Hundred de Eltham 287 Ayres versus Huntington 251 B. BAxter's Case 68 Baldwyn versus Flower 120 Ball versus Cock 140 Barker Mil ' versus Damer 336 Barnes versus Eggard 39 Beak versus Tyrrwhite 194 Banson versus Offley 121 Bishops their Case 212 Bisse versus Harcoutt 281 Blaxton versus Stone 123 Boyle versus Boyle 164 Boson versus Sandford 321 Bowyer versus Lenthal 190
sees his own time and advantage he will have his own choice do what they can for before they can complain of him which is a work of time and charge and trouble he will have done his work and so prevent them And then where is the freedom of Election This could never appear more plainly than in this Case of ours where the Election by the majority is set aside and the choice made by a lesser number and in effect by Mr. Mayor only is that which carries it It plainly appears that we had no sinister design to do any thing without the Mayor for we did all we could to get him to join with us and he thrice denied us but it as plainly appears that the Mayor had a design in refusing to do it till some of us must be gone and then to steal an Election behind our backs by a lesser number when he had the advantage After all that I have said I do agree that had eleven Aldermen of us gone about an Election without so much as desiring the Mayor to join with us or it may be upon once or twice being refused or when the Mayor had been occasionally absent or had it any way appeared that we meant a surprise in it or had we made a Choice subject to the least Exception and had he not obstinately gone away from us being in person upon the place without so much as giving us the least reason for his refusal I should have held my tongue and not have concern'd my self any farther in it I hope it sufficiently appears that I have been no Enemy to Government and Order But to choose an Alderman was our Duty and we were under an Oath to do our Duty and we did but discharge our Trust I may I think save my self the labour of arguing that however if we were mistaken in the Construction of the Charter and in the point of Law in the making of our Election yet here is no Riot in the Case for we are indicted for a Riot for a Riot is the doing of an unlawful act with force and violence neither are we an unlawful Assembly for that is where there is an intent to do an unlawful Act but still with force and violence but they go away without doing it as appears by Poulton de Pace Reg. Regin fol. 25. And in case the Election we made be adjudged duly made then the pretence of a Riot vanishes of it self as is held in Eden's Case Cro. Eliz. 697. If the Indictment be void for the principal matter which in the Case there was an unlawful Entry against the Statute of 8 H. 6. where that Statute was mis-recited they were not allowed in that case to stand upon the Riot I have but a short word more I have been the Recorder of Bristol these one and twenty years longer I think than any Man can be remembred I have sworn all the Aldermen that are now upon the Bench in my time and many more who are now dead I can say it without vanity till the time of this unhappy Election of Members to the Oxford Parliament which I sought not I had the good Will of all sides even of this Mr. Mayor who was Sir Richard Hart for I never would join with any Party but did all I could when I came amongst them to join them together and unite them For ever since they grew rich and full of Trade and Knighthood too much Sail and too little Ballast they have been miserably divided And unless this Court to whom I think it properly belongs upon complaint in such Cases will examine their Dis-orders and command Peace and Order to be observed in our Proceedings I cannot safely attend there any more nor hold any Gaol Delivery I submit what I have said to the Court. Whereupon the Court arrested the Iudgment Lord Grandison versus Countess of Dover IN a Prohibition the Case was Where an Administration once granted ought not to be repealed Charles Heveningham died Intestate leaving an only Sister Abigail then an Infant The Countess of Dover who was her Great Grandmother came into the Prerogative Court and prayed to be assigned her Guardian Ex officio which was granted and thereupon she obtained Administration durante minore aetate Afterwards my Lord Grandison brought a Prohibition suggesting that the Court had granted Administration upon a surprise and being Grandfather to the Children and so nearer of kinred prayed that Administration might be committed to him The Lady replyed that it was obtained after great deliberation and without any surprize and upon a Demurrer the Question was Whether this Administration was well granted to the Lady It was argued now by Dr. Master for the Plaintiff and afterwards by a Common Lawyer on the same side in Hillary Term following And by Dr. Reines and Sir William Williams for the Defendant The Civilian argued That the Father of both the Children died intestate and that their Mother administred and afterwards made a Will of which she appointed my Lord to be Executor and thereby committed the Infant to his Custody which being in Fact true the Curatorship of the Living Child by the Civil Law draws to it the Administration of the Estate of the dead Child There is a Statute Law which empowers the Father by Deed or Will to dispose the custody of his Child under Age 12 Car. 2. cap. 24. to any in Possession or Remainder who may take the Profits of his Lands and possess himself of the said Infant 's personal Estate and bring Actions in relation thereunto as a Guardian in Socage might have done And wherever a Father or †Quare of the Mother Mother has made such a disposition a Iudge cannot assign a Guardian The Spiritual Courts have power to repeal this Administration granted to my Lady Dover the Right is not in question for whoever has it reaps no advantage because 't is for the benefit of the Infant the contest is who ought to be admitted by the Spiritual Court to Administer It cannot be denied but that the Great Grandmother is a degree more remote than the Grandfather If therefore that Court hath entrusted one who ought not to have Administration they have an undoubted power in such case to make an Alteration If my Lord had been Administrator it had been agreeable to the Common-Law for he is Guardian in Socage durante minore aetate E contra E contra It was said That my Lord was really indebted to the Estate of the Infant intestate and therefore as this Case is the Spiritual Court ought not to repeal the Administration once granted for 't is for the benefit of the Infant 'T is not material who shall be Administrator for he who is so durante minore aetate hath no power over the Estate he is only a Curator in the Civil Law which is in the nature of a Bayliff in our Law who hath only power to sell bona peritura Probate
Man from having any Office whatsoever who shall affirm the King to be a Papist 13 Car. 2. cap. 1. that is a person who endeavours to introduce Popery 2. But if the word Papist is not actionable of it self yet as coupled with his Offices 't is otherwise and the Plaintiff may well maintain this Action And of that Opinion was all the Court So the Iudgment was affirmed Malloon versus Fitzgerald ERror of a Iudgment in Ireland Where an Estate Tail shall not be determined for want of notice of a Proviso to determine it for Lands in the County of Waterford the Case upon the special Verdict was this John Fitzgerald was seized in Fee of the Lands in question who had Issue Katherine his only Daughter He by Lease and Release made a Settlement of those Lands upon the Earl of Ossory and other Trustees therein named and their Heirs to the use of himself for Life and after his Decease to the use of his Daughter Katherine in Tail Provided that she Married with the consent of the said Earl and the Trustees or the major part of them or their Heirs some worthy person of the Family and Name of Fitzgerald or who should take upon him that Name immediately after the Marriage but if not then the said Earl should appoint and raise a Portion out of the said Lands for the Maintenance of the said Katherine with a Remainder to Laetitia in Tail John Fitzgerald died his Daughter being then but two years old She afterwards at the Age of fourteen had Notice of this Settlement but not by the Direction of the Trustees That on the 20th of March in the 16th year of her Age she Married with the Plaintiff Edward Villiers Esq without the consent of the Trustees or the major part of them and that her Husband Mr. Villiers did not take upon him the Name of Fitzgerald after the said Marriage That Laetitia the Aunt was married to Franklyn who likewise did not take upon him the Name of Fitzgerald 1. The Questions were Whether the Estate limited to Katherine be forfeited without Notice given to her of the Settlement by the Trustees themselves 2. Whether her Estate be not determined by her marrying Mr. Villiers without their consent And it was argued That the Estate Tail was determined And first as to the point of Notice 't is not necessary to be given to the Daughter because the Father had not made it in the Settlement He might dispose of his Estate at his pleasure and having made particular Limitations of it there is no room now for the Law to interpose to supply the defect of Notice in the Deed. And to this purpose the Mayor of London 's Case was cited which was That George Monox Devised certain Houses to his Executors in Trust and their Heirs Cro Car. 576. Idem Jones 452. upon condition to pay mony to several Charitable uses which if not performed then he devised them over to his Heir in Tail upon the same Conditions and if not performed by him then to the * The Devise to him was void because it was a possibility upon a possibility Mayor and Commonalty of London The Trusts were not performed by the first Devisees A Stranger entered and levied a Fine with Proclamations and five Years passed Then the Mayor of London brought his Action supposing he had a right of Entry for the non performance of the Trusts but was barred by the Fine although it was argued for him that he had not notice of the Devise or breach of the Trust till after the Fine levied which shews that Notice was not necessary for if it had been so when his Title accrewed he could not have been barred by the Fine As Katherine the Daughter takes notice what Estate she hath in the Land so as to pursue a proper Remedy to recover it so she ought to take notice of the Limitations in the Settlement and hath the same means to acquaint her self with the one as with the other and the same likewise as her Aunt had to know the Remainder Suppose a Promise is made to indempnifie another from all Bonds which he should enter into for a third person 2 Cro. 432. Hob. 51. Jones 207. Pop. 164. and then an Action is brought against him wherein the Plaintiff declared that he was bound accordingly and not saved harmless but doth not shew that he gave notice of his being bound yet the Plaintiff shall recover As to the Case of a Copyholder having three Sons who surrendred to the use of his Will 2 Cro. 56. and then devised to his middle Son in Fée upon condition to pay Legacies to his Sisters at full age which were not paid Now tho' it was adjudged that his Estate was not determined upon the non-performance of this Condition without an actual demand and denial and that he was not bound to take notice of the full age of his Sisters yet this is not an Authority which can any wise prevail in this Case because 't is a * If the Devise had been to the eldest Son then it had been a Limitation annexed to his Estate and not a Condition because if it had been a Condition it would have descended upon the Heir who could not be sued for the breach 1 Ventr 199. Rep. Canc. 140. Sid. Poph. 104. Condition to pay Legacies which is a thing in its nature not to be paid without a demand which implies notice In all Cases where Conditions are annexed to Estates to pay Mony there notice is necessary but where Estates are limited upon the performance of collateral acts 't is not necessary And this has been held the constant difference So is Fry and Porter 's Case which was this The Earl of Newport had two Daughters and he devised Newport House to the Daughter of his eldest Daughter in Tail which she had by the Earl of Banbury Provided and upon condition that she marry with the consent of her Mother and two other Trustees or the major part of them if not or if she should dye without Issue then he devised the said House to George Porter in Fee who was the Son of his youngest Daughter and who had married one Thomas Porter without her Fathers consent The Lady Ann Knowles the first Devisee married Fry without the consent of her Grandmother or Trustees and it was adjudg'd against her upon point of Notice that it was not necessary because her Grandfather had not appointed any person to give notice he might have imposed any Terms or Conditions upon his own Estate and all Parties concerned had the same means to inform themselves of such Conditions The third Resolution in Frances Case 8 Co. comes nearest to this now in question it was in Replevin the Defendant avowed the taking Damage Fesant The Plaintiff pleaded in Barr to the Avowry that R. Frances was seized in Fee of the place where c. and devised it to John who was his
Trust as in the Case of Wardship formerly which always went to the Executor of the Grantee and which was of greater consideration in the Law than the feeding or clothing of an Ideot and of that Opinion was the Court that the King had a good Title to dispose of both the Ward and the Ideot one till he was of Age and the other during his Ideocy Iudgment for the Defendant DE Term. Sanctae Trin. Anno 36 Car. II. in Banco Regis 1684. Reeves versus Winnington THE Testator was a Citizen and a Freeman of London A Devise of all his Estate passed a Fee and being seised in Fee of a Mesuage c. and likewise possessed of a considerable personal Estate made his Will in which there was this Clause viz. I hear that John Reeves is enquiring after my Death but I am resolved to give him nothing but what his Father hath given him by Will I give all my Estate to my Wife c. The Question was Whether by these words the Devisee had an Estate for Life or in Fee in the Mesuage It was argued that she had only an Estate for life because the Words All my Estate cannot be construed to pass a Fee for it doth not appear what Estate was intended and Words in a Will which go to disinherit an Heir must be plain and apparent A Devise was in these Words viz. Sid. 191. Bowman versus Milbank I give all to my Mother all to my Mother and it was adjudged that a Fee did not pass which is as strong a Case as this for by the word All it must be intended All that was in his power to give which is as comprehensive as if he had said All my Estate 'T is true Kerman and Johnson Stiles 281. 1 Rol. Abr. 834. Cro. Car. 447. it hath been adjudged that where a Man devised his whole Estate to his Wife paying his Debts and Legacies that the word Estate there passed a Fee because it was for the benefit of the Creditors there being not personal Assets sufficient to pay all the Debts But that is not found in this Case therefore the Word Estate being doubtful and which will admit of a double construction shall not be intended to pass a Fee Mr. E contra Pollexfen contra The first part of this Sentence consists in negative words and those which are subsequent explain the intention of the Testator viz. That John Reeves should take nothing by the Will The Word Estate doth comprehend the whole in which the Owner hath either an Interest or Property like a Release of all Actions which is a good discharge as well of real as personal Actions In common understanding it carries an interest in the Land and then 't is the same as if he had devised all his Fee-simple Estate In the Case of Bowman and Milbank it was adjudged that a Fee-simple did not pass by the Particle All because it was a Relative Word and had no Substantive joined with it and therefore it might have been intended All his Cattle All his Goods or All his personal Estate for which incertainty it was held void yet Iustice Twisden in that Case said that it was adjudged that if a Man promise to give half his Estate to his Daughter in Marriage that the Lands as well as the Goods are included The Testator devised all his Tenant-right Estate held of such a Manor 3 Keb. 245. Mod. Rep. 100. and this being found specially the Question was Whether any more passed than an Estate for Life because he did not mention what Estate he intended but it was held that the Devisee had a Fee-simple because the Words were as comprehensive as if he had devised all his Inheritance and by these Words a Fee-simple would pass Curia It plainly appears that the Testator intended nothing for John Reeves therefore he can take nothing by this Will and that the Devisee hath an Estate in Fee-simple for the Words All my Estate are sufficient to pass the same Rex versus Sir Thomas Armstrong Saturday June 14th THE Defendant was outlawed for High-Treason and being taken at Leyden in Holland was brought into England and being now at the Bar he desired that he might have leave of the Court to reverse the Outlawry and he tried by virtue of the Stature of Ed. 6. which Enacts 5 6 E. 6. cap. 11. That if the Party within one year after the Outlawry or Judgment thereupon shall yield himself to the Chief Justice of England and offer to traverse the Indictment upon which he was outlawed he shall be admitted to such Traverse and being acquitted shall be discharged of the Outlawry He alledged that it was not a year since he was outlawed and therefore desired the benefit of this Law But it was denied because he had not rendered himself according to the Statute but was apprehended and brought before the Chief Iustice Whereupon a Rule was made for his Execution at Tyburn which was done accordingly DE Term. Sancti Mich. Anno 36 Car. II. in Banco Regis 1684. Hebblethwaite versus Palmes Mich. 36 Car. II. in B. R. Rot. 448. AN Action on the Case was brought in the Common-Pleas Possession is a sufficient cause to maintain an Action against a wrong doer for diverting of a Watercourse The Declaration was That the Defendant Primo Augusti c. injuste malitiose did break down an ancient Damm upon the River Darwent by which he did divert magnam partem aquae ab antiquo solitu cursu erga molendinum ipsius quer c. ad dampnum c. The Defendant pleaded that before the said Breach made he was seised in Fee of an ancient Mill and of six Acres of Land adjoyning upon which the said Damm was erected time out of mind to turn the Water to his said Mill which Damm was always repaired and maintained by the Defendant and the Tenants of the said Land that his Mill was casually burnt and he not intending to Re-build it suffered the Damm to be broken down and converted the Timber to his own use being upon his own Soil prout ei bene licuit c. The Plaintiff replied that by the breaking of the Damm the Water was diverted from his Mill c. The Defendant rejoyned and justified his Plea and Traversed that the Mill of the Plaintiff was an ancient Mill. And upon a Demurrer to this Rejoynder Iudgment was given for the Plaintiff and a Writ of Error now brought to reverse that Iudgment and for the Defendant in the Action it was argued 1. That the Declaration is not good because the Plaintiff had not set forth that his Mill was an ancient Mill. 2. Because he had not entituled himself to the Watercourse 3. That the Plea was good in Bar to this Action because the Defendant had sufficiently justified having a Right to the Land upon which the Damm was erected and always repaired it As to the first Point it
day of Appearance he is to see that he appear at the day either by keeping of him in Custody or letting of him to Bail the end of the Arrest is to have his Body here If he had not been bailed then he had still remained in Custody and the Plaintiff would have his proper remedy but being once let to Bail and not appearing in Court according to the Condition of the Bond that seems to be the fault of the Defendant who had his Body before the day of Appearance Iudgment for the Defendant DE Term. Sancti Hill Anno 1 Jac. II. in Banco Regis 1685. Serjeant Hampson's Case BY the Statute of Queen Elizabeth 't is Enacted 5 Eliz. c. 23. That if the person excommunicated have not a sufficient Addition or if 't is not contained in the Significavit that the Excommunication proceeds for some cause or contempt or of some original Matter of Heresie refusing to have his Child baptized to receive the Sacrament to come to Divine Service or Errors in Matters of Religion or Doctrine Incontinency Usury Simony Perjury in the Ecclesiastical Court or Idolatry he shall not incurr the Penalties in the Act. Serjeant Hampson was excommunicated for Alimony and now Mr. Girdler moved that he might be discharged because none of the aforesaid Causes were contained in the Significavit Curia He may be discharged of the Forfeiture for that reason but not of the Excommunication Anonymus ONE who was outlawed for the Murder of Sir Edmund Bury Godfrey now brought a Writ of Error in his Hand to the Bar praying that it might be read and allowed It was read by Mr. Astry Clerk of the Crown The Errors assigned were viz. That it did not appear upon the Return of the Exigent in the first Exact ' that the Court was held pro Comitatu That the Outlawry being against him and two other persons 't is said in the last Exact ' that Non comperuit but doth not say nec eorum aliquis comperuit For these Reasons the Outlawry was reversed and he held up his Hand at the Barr and pleaded Not-guilty to his Indictment and was admitted to Bail and afterwards he was brought to his Trial and no Witness in behalf of the King appearing against him he was acquitted The Mayor and Commonalty of Norwich versus Johnson A Writ of Error was brought to reverse a Iudgment given for the Plaintiff in the Common-Pleas in an Action of Waste Waste lies against an Executor de son tort of a Term. The Declaration was that the Plaintiff demised a Barn to one Took for a certain Term by vertue whereof he was possessed and being so possessed died that the Defendant was his Executor who entred and made Waste by pulling down of the said Barn The Defendant pleaded that Took died intestate and that he did not administer The Plaintiff replyed that he entred as Executor of his own Wrong and to this Plea the Defendant demurred and the Plaintiff joined in the Demurrer This Case was argued by Mr. Appleton of Lincolns-Inn for the Plaintiff who said That an Action of Waste would not lie against the Defendant because the Mayor and Commonalty c. had a remedy by an Assise to recover the Land upon which the Barn stood and a Trover to recover the Goods or Materials and that such an Action would not lie against him at the Common Law because he neither was Tenant by the Curtesie nor in Dower against whom Waste only lay So that if the Plaintiff is entituled to this Action it must be by vertue of the Statute of Gloucester 6 Ed. 1. c. 5. but it will not lie against the Defendant even by that Statute because the Action is thereby given against the Tenant by the Curtesie in Dower for Life or Years and treble Damages c. But the Defendant is neither of those and this being a penal Law which not only gives treble damages but likewise the Recovery of the place wasted ought therefore not to be taken strictly but according to Equity Tenants at sufferance or at Will by Elegit or Tenants by Statute Staple 11 H. 6. c. 5. and also Pernors of Profits were never construed to be within this Statute and therefore a particular Act was made to give him in Reversion an Action of Waste where Tenant for life or years had granted over their Estates and yet took the Profits and committed Waste Then the Question will be Co. Lit. 371. what Estate this Executor de sontort hath gained by his Entry And as to that he argued that he had got a Fee-simple by Disseisin and that for this reason the Plaintiff was barred from this Action for if the Son purchase Lands in Fee and is disseised by his Father who maketh a Feoffment in Fee to another with Warranty and dieth the Son is for ever barred for though the Disseisin was not done with any intention to make such a Feoffment 1 Roll. Abr. 662. yet he is bound by this Alienation So where a man made a Lease for life and died and then his Heir suffered a Recovery of the same Land without making an actual Entry this is an absolute Disseisin because the Lessee had an Estate for life but if he had been Tenant at Will it might be otherwise But admitting that the Defendant is not a Disseisor then the Plaintiffs must bring their Case to be within the Statute of Gloucester as that he is either Tenant for life or years If he is Tenant for Life he must be so either by right or by wrong He cannot be so by right because he had no lawful Conveyance made to him of this Estate besides 't is quite contrary to the Pleading which is that he entred wrongfully Neither can he be so by wrong for such particular Estates 6 Co. 25. as for life or years cannot be gained by Disseisin and so is Heliar's Case in 6 Co. Then if this should be construed an Estate for years it must be gained either by the Act of the Party or by the Act of the Law but such an Estate cannot be gained by either of those means First it cannot be gained by the Act of the Party Moor 126. Kendrick versus Burges because an Executor de son tort cannot have any interest in a Term and for this there is an express Authority in this Court which was thus viz. A Lease in Reversion for years was granted to a man who died intestate his Wife before she had administred sold this Term to the Defendant and afterwards she obtained Letters of Administration and made a Conveiance of the same Term to the Plaintiff and Iudgment was given for the last Vendee because it was in the case of a Reversion of a Term for years upon which no Entry could be made and of which there could be no Executor de son tort though it was admitted by the Court that such an Executor might make a good sale of
the one took 70 l. and the other 30 l. damages shall be assessed severally It was admitted that regularly the damages ought to be entire especially where the Action is joint but where the Facts are several damages may likewise be so assessed but in this Case the Iury hath done what the Court would do had it béen in a Criminal Cause Curia This is all but one Fact which the Iury is to try 'T is true when several Persons are found Guilty criminally then the damages may be severed in proportion to their Guilt but here all are equally guilty of the same offence and it seems to be a contradiction to say that the Plaintiff is injured by one to the value of 50 l. and by the other to the value of 1000 l. when both are equally Guilty Every Defendant ought to answer full as much as the Plaintiff is damnified now how is it possible he should be damnified so much by one and so little by the other But notwithstanding this Opinion Iudgment was afterwards given for the Plaintiff Peak versus Meker IN an Action on the Case for Words the Plaintiff declared that he was a Merchant and bred up in the Church of England and that when the present King came to the Crown the said Plaintiff made a Bonfire at his Door in the City of London and that the Defendant then spoke of him these words for which he now brought this Action viz. He innuendo the Plaintiff is a Rogue a Papist Dog and a pitiful Fellow and never a Rogue in Town has a Bonfire before his Door but he The Plaintiff had a Verdict and 500 l. Damages were given A Writ of Error was brought but it was adjudged without argument that the words were actionable Joyner versus Pritchard AN Action was brought upon the Statute of R. II. Admiralty for prosecuting of a Cause in the Admiralty Court which did arise upon the Land it was tried before the Chief Iustice in London and a Verdict for the Plaintiff Mr. Thompson moved in Arrest of Iudgment for that the Action was brought by Original in which it was set forth that the Defendant prosecut fuit adhuc prosequitur c. in Curia Admiralitat now the prosequitur is subsequent to the Original and so they have recovered Damages for that which was done after the Action brought Curia These words adhuc prosequitur must refer to the time of suing forth this Original like the Case of a Covenant for quiet Enjoyment and a breach assigned that the Defendant built a Shed whereby he hindred the Plaintiff that he could not enjoy it hucnsque which word must refer to the time of the Action brought and not afterwards Iudgment was given for the Plaintiff Dominus Rex versus ........ AN Information was brought against the Defendant for Forgery Forgery setting forth that the Defendant being a man of ill fame c. and contriving to cheat one A. did forge quoddam scriptum dated the 16th day of October in the year 1681. continens in se scriptum obligatorium per quod quidem scriptum obligatorium praed A. obligatus fuit praed Defend in quadraginta libris c. He was found Guilty and afterwards this Exception was taken in arrest of Iudgment Viz. That the Fact alledged in the Information was a contradiction of it self for how could A. be bound when the Bond was forged 2. It is not set forth what that scriptum obligatorium was whether it was scriptum sigillatum or not Curia The Defendant is found Guilty of the forging of a Writing in which was contained quoddam scriptum obligatorium and that may be a true Bond. Iudgment was arrested MEMORANDUM On Tuesday April the 27th Sir Thomas Powes of Lincolns-Inn was made Sollicitor General in the Place of Mr. Finch and was called within the Bar. Hanchet versus Thelwal IN Ejectment a special Verdict was found Devise What words in a Will make an Estate for Life and what in Tail in which the Case did arise upon the construction of the words in a Will Viz. The Testator being seised in Fee had Issue Two Sons and Four Daughters He made his Will and devised his Estate being in Houses by these words Viz. Irem I give and bequeath to my Son Nicholas Price my Houses in Westminster and if itplease God to take away my Son then I give my Estate to my four Daughters naming them share and share alike and if it please God to take away any of my said Daughters before Marriage then I give her or their part to the rest surviving And if all my Sons and Daughters dye without Issue then I give my said Houses to my Sister Anne Warner and her Heirs Nicholas Price entred and died without Issue then the four Sisters entred and Margaret the eldest married Thellwel and died leaving Issue a Son who was the Lessor of the Plaintiff who insisted upon his Title to a fourth part of the Houses The Question was what Estate the Daughters took by this Will whether joint Estates for Life or several Remainders in Tail If only joint Estates for Life then the Plaintiff as Heir to his Mother will not be entituled to a fourth part if several Remainders in Tail then the Father will have it during his Life as Tenant by the Curtesie This Case was argued this Term by Mr. Pollexfen for the Plaintiff And in Hillary Term following by Councel for the Defendant The Plaintiffs Council insisted that they took joint Estates for Life and this seemed to be the intent of the Testator by the words in his Will the first Clause whereof was Viz. I give and bequeath my Houses in W. to Nicholas Price Now by these words an Estate for Life only passed to him and not an Inheritance for there was nothing to be done or any thing to be paid out of it 2. The next Clause is Viz. If it please God to take away my Son then I give my Estate to my four Daughters share and share alike Now these words cannot give the Daughters a Fee-simple by any intendment whatsoever but if any word in this Clause seems to admit of such a Construction it must be the word Estate which sometimes signifies the Land it self and sometimes the Estate in the Land But here the word Estate cannot create a Fee-simple because the Testator gave his Daughters that Estate which he had given to his Son before and that was only for Lise Then follow the words share and share alike and that only makes them Tenants in Common 3. The next Clause is Viz. If it please God to take away any of my said Daughters before Marriage then I give her or their part to the rest surviving These words as they are penned can have no influence upon the Case 4. Then followeth the last Clause Viz. And if all my Sons and Daughters dye without Issue then I give c. These words create no Estate tail in the
Sir Thomas claimed a Property whereupon he was ordered to amend his Return and then the Court of Common-Pleas bailed him Banson versus Offley AN Appeal of Murder was tried in Cambridgshire against three persons An Appeal of a Murder was tried not where the Stroak was given but where the Party died and the Count was that Offley did assault the Husband of the Appellant and wounded him in Huntingtonshire of which Wound he did languish and dye in Cambridgeshire and that Lippon and Martin were assisting The Iury found a special Verdict in which the Fact appeared to be that Lippon gave the Wound and that Martin and Offley were assisting The first Exception to this Verdict was that the Count and the Matter therein alledged must be certain and so likewise must the Verdict otherwise no Iudgment can be given but here the Verdict finding that another person gave the Stroak and not that person against whom the Appellant had declared 't is directly against her own shewing 2. This Fact was tried by a Iury of Cambridgshire when it ought to have been tried by a Iury of both Counties The Court answered to the first Exception that it was of no force and that the same Objection may be made to an Indictment where in an Indictment if one gives the Stroak and another is abetting they are both principally and equally guilty and an Indictment ought to be as certain as a Count in an Appeal As to the second Exception 't is a good Trial by a Iury of Cambridgshire alone and this upon the Statute of 2 3 Ed. 6. 2 3 Ed. 6. cap. 24. the Words of which Statute are viz. Where any person c. shall hereafter be feloniously striken in one County and dye of the same Stroak in another County that then an Indictment thereof found by the Jurors of the County where the death shall happen whether it be found before the Coroner upon the sight of the Body or before the Justices of the Peace or other Justices or Commissioners who shall have Authority to enquire of such Offences shall be as good and effectual in the Law as if the Stroak had been in the same County where the Party shall dye or where such Indictment shall be found 'T is true 4 Inst 49 that at the Common Law if a Man had received a mortal Wound in one County and died in another the Wife or next Heir had their Election to bring an Appeal in either County but the Trial must be by a Iury of both Counties But now that mischief is remedied by this Statute which doth not only provide that an Appeal shall be brought in the County where the Party dyed but that it shall be prosecuted which must be to the end of the Suit Adjornatur Dominus Rex versus Hinton and Brown AN Indictment was brought against the Defendants setting forth Subornation of Perjury that a Conventicle was held at a certain place and that they movebant persuadebant subornaverunt a certain person to swear that several Men were then present who really were at that time at another place They were found guilty and a Writ of Error was brought to reverse the Iudgment the Error assigned was that the Indictment doth not set forth that any Oath was made so it could not be Subornation There is a difference between the persuading of a man to swear falsly and Subornation it self for an Indictment for Subornation always concludes contra formam Statuti Curia 'T is not enough to say a Man suborned another to commit a Perjury but he must shew what Perjury it is which cannot be without an Oath for an Indictment cannot be framed for such an Offence unless it appear that the thing was false which he was perswaded to swear The Question therefore is If the person had sworn what the Defendants had persuaded him to do whether that had been Perjury There is a difference when a Man swears a thing which is true in Fact and yet he doth not know it to be so and to swear a thing to be true which is really false the first is Perjury before God and the other is an Offence of which the Law takes notice But the Indictment was quashed because the Words Per Sacramentum duodecim proborum legalium hominum were left out They held that if the Return had been right upon the File the Record should be amended by it Blaxton versus Stone THE Case was this viz. A Man seised in Fee c. What words make an Estate Tail in a Will had Issue two Sons he devised all his Land to his eldest Son and if he die without Heirs Males then to his other Son in like manner The Question was Whether this was an Estate Tail in the eldest Son Curia 'T is plain the Word Body which properly creates an Estate Tail is left out but the intent of the Testator may be collected out of his Will that he designed an Estate Tail for without this Devise it would have gone to his second Son if the first had died without Issue 'T is therefore an Estate Tail DE Termino Paschae Anno 3 Jac. II. in Banco Regis 1687. Herbert Chief Justice Wythens Justices Holloway Justices Powel Justices Dominus Rex versus William Beal MEmorandum A Souldier executed not in the County where he wes condemned That on Saturday April 15. Mr. Attorny moved that this Court would award Execution upon the Defendant who was a Souldier for deserting of his Colours and was condemned for the same at the Affizes at Reading in Berks and reprieved and that he might be executed at Plymouth where the Garrison then was The Chief Iustice in some heat said that the Motion was irregular for the Prisoner was never before the Court. Mr. Attorny then moved for a Habeas Corpus and on Tuesday April the 18th the Souldier was brought to the Barr and Mr. Attorny moved it again But it was affirmed by the Chief Iustice and Iustice Wythens that it could not be done by Law for the Prisoner being condemned in Berks and reprieved by the Iudge to know the Kings Pleasure and now brought hither cannot be sent into another County to be executed it may be done in Middlesex by the Prerogative of this Court which sits in that County but no where else but in the proper County where the Trial and Conviction was so the Prisoner was committed to the Kings Bench and the Record of his Conviction was not filed But it was the King's Will that this Man should be executed at Plymouth where the Garrison was that by this Example other Souldiers might be deterred from running from their Colours SIR Robert Wright who was made Chief Justice of the Common Pleas in the room of Sir Henry Beddingfield who died the last Term as he was receiving of the Sacrament was on Friday following being the 21st of April made Chief Justice of this Court in the place of
my Lord Coke to be an allowance by the King 's Grant to any person for the sole buying or selling of any thing restraining all others of that Liberty which they had before the making of such a Grant 3 Inst 181. and this he tells us is against the ancient and fundamental Rights of this Kingdom This Patent agreeth exactly with that Definition 9 E. 3. cap. 1. 18 E. 3. c. 3. 25 E. 3. c. 2. Roll. Abr. 180. 2 R. 2. c. 1. 11 R. 2. c. 7. and therefore it must be against Law 't is against an Act of Parliament which gives Liberty to Merchants to buy and to sell in this Realm without disturbance and 't is expresly against the Statute of 21 Jac. cap. 3. which declares all such Letters Patents to be void That which may give some colour to make such Grants good 2 Inst 540. 11 Rep. is a pretence of Order and Government in Trade but my Lord Coke was of Opinion that it was a hinderance to both and in the end it produced Monopolies There is a great difference between the King's Grant and his Prohibition for the one vests an Interest which is not done by the other and all Prohibitions determine by the King's death but Grants still remain in force Adjornatur Langford versus Webber IN Trespass for the taking of a Horse Justification upon a bare possession good against a wrong doer the Defendant justified for that Joseph Ash was possessed of a Close c. and that the Defendant as his Servant took the Horse in that Close Damage fesant And upon a Demurrer to this Plea for that the Defendant did not shew what Title Ash had to this Close The Councel for the Defendant insisted that it being in Trespass 't is sufficent to say that Ash was possessed because in this Case possession is a good Title against all others But it might have been otherwise in Replevin The Title of the Close is not in question Cro. Car. 138. Yelv. 74. Cro. Car. 571. pl. 10. the possession is only an inducement to the Plea and not the substance thereof which is the taking of the Horse and the Law is plain that where the interest of the Land is not in question a Man may justifie upon his own possession against a wrong-doer Mr. Pollexfen on the other side alledged that damage fesant would bring the Title of the Land in question But the Court gave Iudgment for the Defendant Perkins versus Titus A Writ of Error was brought to reverse a Iudgment given in the Common-Pleas Fine upon an Admittance where it must be certain in Replevin for taking of the Plaintiff's Sheep The Defendant avowed the taking damage fesant The Plaintiff replied that the Lands where c. were Copy-hold held of the Manor of Bushy in Com. Hertf. the Custom whereof was that every Tenant of the said Manor qui admissus foret to any Copyhold Estate should pay a years Value of the Land for a Fine as the said Land is worth tempore Admissionis And upon a Demurrer the Question was 1. Whether this be a good Plea or not as 't is pleaded 2. If it be good as pleaded then whether such a Custom may be supported by Law 1. It was for the Plaintiff in the Writ of Error now and in Michaelmas Term following argued that it was not a good Custom The substance of whose Arguments were that Fines are either certain or incertain those which are incertain are arbitrary and therefore cannot be due of Common Right nor by Custom for there can be no Custom for an incertain Fine and such is this Fine for the value of the Land cannot be known because as this Custom is pleaded it doth not appear whether it shall be a years value past or to come at the time of the admittance of the Tenant A Custom to assess rationabilem denariorum summam for a Fine upon an admittance that is to say 13 Rep. 1. being two years Rent of a Tenant of the yearly value of 53 s. 4 d. is no good Custom A Lease is made for so many years as a third person shall name this is altogether incertain 13 Edw. 3. Fitz. Abr. 273. but when the Term is named then 't is a good Lease but this can be done but once How can this Fine be assessed It cannot be by Iury for then it stands in need of the Common Law and will be therefore void for a Custom must have nothing to support it but usage 1. Neither can this be a good Custom as 't is pleaded because all Customs are made up of repeated Acts and Vsages and therefore in pleading them it must be laid time out of mind which is not done here for admissus foret hath a respect to future admissions and are not to those which are past 2. Here is no time laid when this Fine shall be paid for 't is said Quilibet tenens qui admissus foret c. solvet tantam denariorum summam quantum terra valebat per Annum tempore admissionis c. which last words must be taken to relate to the value of the Land and not to the time when the Fine shall be paid so that if there be such a Custom which is Lex loci and not fully set forth and expressed the Common Law will not help it by any Construction 2. Point Whether such a Custom can be good by Law And they argued that it cannot Where the Fine is certain the Lord may refuse to admit without a tender of it upon the prayer of the person to be admitted 4 Rep. 27. b. but where 't is incertain the Lord is first to admit the Tenant and then to set the Fine the reasonableness whereof is to be determined by Iudges before whom the Case shall depend or upon Demurrer or by a Iury upon proofs of the yearly value of the Land but for non payment of an unreasonable Fine the Lord cannot enter Cro. Eliz. 779. Cro. Car. 196. The Law admits of no Custom to be good but such as is very certain for incertainty in a Custom as well as in a Grant makes both void and therefore 't is held a void Custom for an Infant to make a Feoffment when he can measure an Ell of Cloth Rol. Abr. 565. 6 Rep. 60. Davies Rep. 37. It may be objected that certum est quod certum reddi potest the meaning of which saying must be quod certum reddi potest by something which is certain for if this Rule should be taken to be an answer to incertainties it would destroy all the Books which say a Custom must be certain The Law is very clear Fitz. Bar. 177. 2 Rol. Abr. 264. that a Custom is void for the incertainty therefore this Custom must be void for the value of Land is the most incertain thing in nature and therefore Perjury will not lye for swearing to the value Serjeant Fuller and Mr.
the Fine and Non-claim the Substance of which was That Robert Basket was seized in Fee of the Lands in Question who by Will devised it to Philip Basket and others for 99 years with power to grant Estates for the payment hf the Debts and Legacies of the Testator the Remainder in Tail to John Basket his Brother but that if he gave Security to pay the said Debts and Legacies or should pay the same within a time limited that then the Trustees should assign the Term to him c. John Basket entred after the death of his Brother with the assent of the said Trustees and received the Profits and paid all the Legacies and all the Debts but 18 l. The Iury find that John had Issue a Daughter only by his first Wife after whose death he married another Woman and levied a Fine and made a Settlement in consideration of that Marriage upon himself for Life and upon his Wife for Life with divers Remainders over that he died without Issue by his second Wife who entred and five years were past without any claim c. And now the Heir at Law in the name of the Trustees brought this Action The Questions were 1. Whether the Term for 99 years thus devised to the Trustees was bound by this Fine and Nonclaim or not 2. Whether it was divested and turned to a Right at the time of the Fine levied For if it was not then the Fine could not operate upon it It was agreed that as a Disseisin is to a Freehold so is a divesting to a Term and that a Fine and Non-claim is no Barr but where the Party at the time of the levying thereof had a Will to enter and when the Estate of which 't is levyed is turned to a Right That in the Case at the Barr the Entry of John Basket was tortious because the legal Estate was still in the Trustees But if he had gained any Right by his Entry 't is only a Tenancy at Will to them for they took notice of the Devise and he entred by their consent and such a Right is not assignable and then a Fine levyed is no Barr. To prove this 9 Co. 106. Margaret Prodger's Case was cited where the the Lord granted a Copyhold to John Elizabeth and Mary for their Lives and afterwards by Deed enrolled sold the Land to John in Fee and levyed a Fine to him and his Heirs c. and five years passed without any Claim John dyed his Son entred and levyed another Fine to Trustees to the use of himself and Margaret his Wife for Life the Remainder to his own right Heirs the Son died and his Wife survived who having a Freehold for Life distrained and the Husband of Elizabeth brought a Replevin It was adjudged that this Fine and Nonclaim did not barr those in Remainder becase the Bargain and Sale to John did not divest their Estate and turn it to a Right for the Lord did what he might do and John accepted what he might lawfully take who being in possession by virtue of a particular Estate for Life could not by this acceptance divest the Estate of her who had the Freehold and the Fine and Nonclaim could not do it for to what purpose should he make any Claim when he was in actual possession of the thing to be demanded And he who is so in possession need not make any Claim either to avoid a Fine or a collateral Warranty Now though at the Common Law there must be Livery and Seisin to create an Estate of Freehold 3 Co. Fermer 's Case yet any thing is sufficient to make an Estate at Will in which neither the Inheritance or the Title of the Land is concerned and therefore a Fine levyed by such a Tenant is no Barr. 'T is true Sid. 458. Freeman versus Barns if a Lease be made for an hundred years in Trust to attend the Inheritance and Cestuy que Trust continues in possession and devises to another for fifty years and levies a Fine and the five years pass without Claim he being still in possession after the first Lease made is thereby become Tenant at Will and by making the second Lease the other is divested and turned to a Right though he was not a Disseisor and so 't is barred by the Fine because the Cestuy que Trust of the term of one hundred years was also Owner of the Inheritance But in the Case at the Barr John shall not be a Disseisor but at the Election of the Trustees of the Term of 99 years to prove which there are many Authorities in the Books As if Tenant at Will make a Lease for years and the Lessee enters Latch 53. 1 Leon. 121. Lit. Sect. 588. 't is not a Disseisin but at the Election of him who hath the Freehold and even in such Case if the Tenant of the Freehold should make a Grant of the Land 't is good though not made upon the Land it self for he shall not be taken to be out of possession but at his own Election 'T is like the common Case of a Mortgagee for years where the Mortgagor continues in possession twenty years afterwards and pays the Interest and in that time hath made Leases and levyed a Fine this shall not barr the Mortgagee for the Mortgagor is but Tenant at Will to him The Trustees need not make any claim in this Case because there was no transmutation of the possession so they could take no notice of the Fine 'T is true John Basket entred by their consent but still as Tenant at Will to them and the Acts done by him after his Entry will not didest this Term for though he made a Bargain and Sale of the Lands yet nothing will pass thereby but what of right ought to pass He likewise demised the Lands to Vndertenants for years but 't is not found that they entred but admitting they did enter yet that could not displace this Term for these Tenants claimed no more than for one or two years and made no pretence to the whole Term. But if by either of these Acts the Term should be divested yet still it must be at the election of those who have the Interest in it Dyer 61 62 173. The Case of * Cro. Car. 302. 1 Rol. Abr. 661. Blunden and Baugh which is grounded upon Littleton's Text Sect. 588. is an Authority to this purpose which was The Father was Tenant in Tail and his Son was Tenant at Will who made a Lease for years then both Father and Son join in a Fine to the use of the Son for Life and to Elizabeth his Wife for Life the Remainder to the Heirs Males of the Body of the Son who died without Issue Male the Lessee being in possession made a Conveyance of the Estate by Bargain and Sale to Charles Lord Effingham who was Son and Heir of the Tenant in Tail who made a Lease to the Plaintiff who was ousted by the
same to Mrs. Berkley for Life remainder over to Henry Killigrew in Tail and that he made Mrs. Berkley Executrix of his Will which was found in haec verba That afterwards in the year 1645. the said Sir Henry Killigrew made aliud Testamentum in Writing but what was contained in the said last mentioned Will juratores penitus ignorant They find that Sir Henry Killigrew in the year 1646. died seised of those Lands and that Mrs. Berkley conveyed the same to Mr. Nosworthy 's Father whose Heir he is and that the Defendant Sir William Basset is Cosin and Heir to Sir Henry Killigrew c. The Question upon this special Verdict was whether the making of this last Will was a revocation of the former or not It was argued this Term by Mr. Finch and in Michaelmas Term following by Serjeant Maynard for the Plaintiff that it was not a revocation In their Arguments it was admitted that a Will in it's nature was revocable at all times but then it must be either by an express or implied revocation That the making of this latter Will cannot be intended to be an implied revocation of the former for if so then the Land must also be supposed to be devised contrary to the express disposition in the first Will and that would be to add to the Record which finds Viz. that what the last Will was penitus ignorant It is possible that a subsequent Will may be made so as not to destroy but consist with a former for the Testator may have several parcels of Land which he may devise to many persons by divers Wills and yet all stand together A man may likewise by a subsequent Will revoke part and confirm the other part of a former Will and therefore admitting there was such a Will in this case 't is still more natural that it should confirm than revoke the other If the Testator had purchased new Lands and had devised the same by a subsequent Will no person will affirm that to be a revocation of the former Will When a Man hath made a disposition of any part of his Estate 't is a good Will as to that part so is likewise the disposal of every other part they are all several Wills tho' taken altogether they are an intire disposition of the whole Estate Nothing appears here to the contrary but that the latter Will may be only a devise of his personal Estate or a confirmation of the former which the Law will not allow to be destroyed without an express revocation The Case of Coward and Marshal is much to this purpose Cro. Eliz. 721. which was a devise in Fee to his younger Son and in another Will after the Testators Marriage to a second Wife he devised the same Lands to his Wife for Life paying yearly to his younger Son 20 s. It was the Opinion of Anderson and Glanvil that both these Wills might stand together and that one was not a revocation of the other because it appeared by the last Will that he only intended to make a Provision for his Wife but not to alter the Devise to his Son So where a Man had two Sons by several Venters Cro. Car. 24. Hodgkinson vers Whood Co. Lit. 22. b. 1 Co. 104. a. 319. b. and devises the Lands to his eldest Son for Life and to the Heirs Males of his Body and for default of such Issue to the Heirs Males of his second Son and the Heirs Males of their Bodies Remainder to his own right Heirs and then made a Lease of 30 years to his youngest Son to commence after the death of the Testator the youngest Son entred and surrendred the Term to his elder Brother who made a Lease to the Defendant and then dyed without Issue afterwards the youngest Brother entred and avoided this Lease made by his Brother It was held that the Lease thus made to him was not a revocation of the devise of the Inheritance to his Brother tho' it was to commence at the same time in which the devise of the Inheritance was to take effect but it was a revocation quoad the Term only that the elder Brother should not enter during that time for the devise shall not be revoked without express words and that tho' the Testator had departed with the whole Fee without reserving an Estate for Life to himself yet the Law created such an Estate in him till the future Vse should commence and in such case the right Heirs cannot take by Purchase but by Descent so that here the Inheritance in Fee simple was not vested in the elder Brother by Descent for then the Lease which he made would be executed out of the Feé and the younger Brother would be bound thereby But in the Case at the Bar there is no colour of a Revocation 1. Vpon the nature of the Verdict to which nothing can be added neither can it be diminished for whatever is found must be positive and not doubtful because an Attaint lies if the Verdict be false Therefore the Court cannot take notice of that which the Iury hath not found Now here the entry of the Iudgment is Viz. Quibus lectis auditis per Curiam hic satis intellectis c. But what can be read or heard where nothing appears That Case in the Year-Book of the 2 R. 3. 2 R. 3. f. 3. comes not up to this question it was an Action of Trespass for the taking of his Goods The Defendant pleaded that the Goods did appertain to one Robert Strong who before the supposed Trespass devised the same to him and made him Executor c. The Plaintiff replied that the said Strong made his last Will and did constitute him Executor And upon a Demurrer to this Replication because he had not traversed that the Defendant was Executor it was argued for the Plaintiff that this last Will was a Revocation of the former for tho' there were no express words of Revocation yet by the very making another the Law revoked the former and to prove this two Instances were then given viz. That if a Man devise his Lands to two and by another Will gives it to one of them and dies he to whom 't is devised by the last Will shall have it So likewise if the Testator by one Will giveth Lands to his Son and by another Will deviseth the same again to his Wife then makes an Alienation and taketh back an Estate to himself and dieth and in an Assise brought between the Widow and the Son he was compelled by the Court to shew that it was his Father's intention that he should have the Land otherwise the last Devisee will be entituled to it Now both these Instances are not sufficient to evince that the last Will in this Case was a revocation of that under which the Plaintiff claims because those Wills were contradictory to each other for by one the Land was devised to the Son and by the other to
be in his possession and not of the Servant the Master being then present which is all the difference between that Case and this at the Barr so that the Master is the person robbed within the meaning of the Statute of Winton although the Mony be in the hands of the Servant Suppose the Servant had received 1000 l. and not being able to carry it himself had employed ten Men each to carry 100 l. and they had been all robbed the Owner may have an Action against the Hundred upon the Affidavit of one of the persons robbed the reason is because the possession shall follow the property and the possession of the whole will follow every part There are Authorities to prove that if the Servant is robbed the Master may give Evidence what Mony was delivered to him 2 Roll. Abr. 685. though that might be as well proved by another Witness Now though all this be admitted yet an Action will not lie against the Hundred by the Master in the Case at the Barr for the Statute of Queen Elizabeth being made so much in favour of the Hundred ought to be pursued The Reasons why an Oath is injoyned by that Statute are 1. That the person robbed should enter into a Recognizance to prosecute the Robbers if he knew them or any of them 2. That the Hundred might be excused upon the Conviction of such person or persons 3. To prevent a Robbery by Fraud Now suppose the Servant is entrusted with Mony and robbed by Confederacy shall the Hundred be answerable because the Servant hath broke his Trust Cro. Eliz. 142. 1 Leon. 323. No the Servant ought to be sworn for the purposes mentioned in that Act which if he refuse the Master hath lost his Action But if the Servant is robbed in the Company or presence of his Master the Mony is still in Iudgment of the Law in the possession of the Master Stiles 156 319 and that was the reason of the Iudgment in Jones's Case This is not like the Case of a common Carrier who though he may be said to be a Servant yet he is entrusted by this Law Curia This Action might have been well brought for the whole by Coxhead alone but 't is now too late the year being expired for where a Servant is robbed of part of his Master's Goods and part of his own he may have an Action Brownl 155. and recover Iudgment for the whole and therefore at another day the Plaintiff had Iudgment for 26 s. only Pain versus Patrick and others Pasch 2 Gulielmi Rot. 43. THIS was a Special Action on the Case brought by Isaac Pain against Edward Patrick and William Boulter for hindring the Plaintiff to go over a Ferry Action on the Case will not lie for disturbing or hindring a passage in a Common High-way but it must be by Indictment The Declaration sets forth that the Vill of Littleport in the Isle of Ely is an ancient Vill within which there is a River called Wilner River over which there was an ancient passage in a Ferry-Boat from the North East part of the said Vill to the end of Ferry-Lane and from thence to another place called Adventurers Bank that this passage was for all People at a certain price c. excepting the Inhabitants of Littleport living in ancient Houses there who by reason of an ancient Custom in the said Vill were to pass ad libitum suum with paying Coll c. That the Plaintiff was an Inhabitant in an ancient Mesuage in the said Vill and that there was an ancient Ferry-Boat kept there by the Owners thereof till the first day of May in such a year after which day the Defendants did not keep the same per quod the Plaintiff lost his Passage c. The Defendants protestando that the Passage was not in a Ferry-Boat protestando etiam that there was no such Custom c. and that the Plaintiff was not an Inhabitant in an ancient Mesuage in Littleport Pro Placito dicunt that before the exhibiting of the Bill they did erect a Bridge over the said River where the Passage was anciently and this was done and maintained at their own Costs and that the Plaintiff melius celerius could pass over the said Bridge c. This was pleaded in Barr. The Plaintiff replied that he per aliquem Pontem libertatem passagii trans ultra Rivum praedict ' secundum consuetudinem praed in narratione mentionat ' habere non permissus fuit contra consuetudinem praed Et hoc paratus est verificare c. The Defendants demurred and the Plaintiff joined in Demurrer The Questions were 1. Whether this was a good Custom as laid in the Declaration for the Inhabitants of a Vill to claim to be discharged of Coll ratione comorantiae 2. If the Custom is good then whether the Defendants Plea in Barr is also good to discharge themselves from keeping of the Boat 3. Whether the Plaintiff can maintain this Action This Case was argued now and in Easter-Term following by Council for the Defendants and in the same Term by Council for the Plaintiff Those who argued for the Defendants said that as to the first Point though this is set forth by way of Custom yet 't is in the nature of a Prescription which is always alledged in the person but here 't is for the Inhabitants of a Vill c. Now this cannot be good by way of Prescription because in such Case there must be a certain and permanent Interest abiding in some person which cannot be here for a meer Habitation or dwelling in an House will not give a Man such an Interest That which makes a Prescription good is Vsage and reasonableness 1 Leon. 142. 3 Leon. 41. but it cannot be ex rationabili causa to prescribe ad libitum suum for the Ferry-Man hath neither any consideration or recompence for the keeping of his Boat when the Inhabitants may pass over at their pleasure without paying Toll 'T is true a Man may prescribe to have Common sans nombre which in strictness is to put in as many Cattle as he will but if he lays his prescription ad libitum suum 't is not good If therefore this is not good by way of Prescription it cannot be supported by Custom because that also must extend to what hath some certainty and which must likewise have a reasonable beginning Now there can be no certainty in this Custom Hob. 86. 6 Co. 60. because the Plaintiff claimeth it only during his Comorancy in a Mesuage in which he had neither a certain time or Estate and this is such a transitory interest which is not allowed in the Law And therefore it hath been adjudged that a Custom for an Infant to sell his Lands when he can measure an Ell of Cloth is void 1 Rol. Rep. 32. because 't is incertain of what Age he may then be and 't is equally as incertain how
Demise and the Word Assignes is in the Deed yet they are not bound if they have no Estate so that 't is not the naming of them but by reason of the Estate in the Land they are made chargeable No Iudgment is entred upon the Roll. FINIS ERRATA FOlio 88. Line 13. for Defendant read Plaintiff f. 106. l. 26. for no r. an f. 119. l. 7. after must be r. Error f. 147. l. 13 18 38. for coram r. quorum f. 189. l. 23. for reasonable r. unreasonable f. 196. l. 28. for devises r. demises f. 199. l. 1. for 23. r. 13. f. 201. l. 14. before merged r. not f. 218. l. 17. for 1672. r. 1679. f. 203. l. 31. after Berkley r. and Mr. Killigrew f. 222. l. 31. leave out and marrieth f. 226. l. 21. leave out she marrieth f. 237. l. 29. for devise r. demise f. 255. l. 31. for Father r. Nephew f. 256. l. 12. for joyned r. tryed f. 287. l. 6. after delivered r. tied f. 303. l. 16. for Grantee r. Guarantee f. 307. l. 36. for voidable r. void A TABLE to the Third Part of Modern Reports A. Abatement See Ioint Action 8. 1. DEBT was brought by four Plaintiffs one of them died before Judgment the Action is abated as to the rest 249 2. Waste is brought against Tenant pur auter vie and pending the Writ Cestui que vie dieth the Writ shall not abate because no other person can be sued for the Damages ibid. 3. Two Jointenants are Defendants the death of one shall not abate the Writ for the Action is joint and several ibid. 4. Where two or more are to recover in a personal thing the death of one shall abate the Action as to the rest ibid. 5. But in Audita Querela the death of one shall not abate the Writ because it is in discharge ibid. Abeiance See Acceptance 1. Resignation of a Benefice passes nothing to the Ordinary but putteth the Freehold in Abeiance till his acceptance 297 See Acceptance Resignation Surrender Acts of Parliament See Iustice of Peace 2 Pardon 2 Ought to be construed according to the intention of the Law-makers and ought to be expounded according to the Rules of the Common Law 63 2. Where a particular punishment is directed by a Statute Law it must be pursued and no other can be inflicted upon the Offender 78 118 3. When an Act is penal it ought to be construed according to Equity 90 157 312 4. Preamble is the best Expositor of the Law 129 169 Action upon the Ease Assumpsit A Feoffment was made upon Trust that the Feoffee should convey the Estate to another the Cestuy que Trust may have an Action if the Feoffee refuseth to convey 149 2. In consideration that the Plaintiff would let the Defendant have Meat Drink c. he promised to pay as much as it was reasonably worth the word valerent was in the Declaration it should have been quantum valebant at the time of the Promise but held good after Verdict 190 3. Where a personal promise is grounded upon a real Contract the Action will lie 73 4. It will not lie for Rent reserved upon a Demise but where a Promise is made to pay Rent in consideration of occupying a House it will lie 240 Action on the Case See Bankrupts 2 Indictment 2 Slander where it lieth 1. He is a Papist spoken of a Deputy Lieutenant 26 2. Where the words injure a person in his Profession or bring him in danger of punishment 27 3. He stole the Colonel's Cupboard Cloth there being no precedent Discourse either of the Colonel or his Cloth 280 4. He is broken and run away and never will return again spoken of a Carpenter 155 5. He is a Rogue a Papist Dog and a pitiful Fellow and never a Rogue in Town has a Bonfire before his door but he spoken of a Merchant who made a Bonefire at the Coronation of King James 103 6. He owes more Mony than he is worth he is run away and is broak spoken of an Husbandman 112 7. The Wife was called Whore and that she was the Defendant's Whore the Husband and she brought the Action and concluded ad dampnum ipsorum it lies without allegding special Damages 120 8. Sir J. K. is a buffle headed Fellow and doth not understand Law he is not fit to talk Law with me I have baffled him and he hath not done my Client Justice spoken of a Justice of Peace 139 9. J. P. is a Knave and a busie Knave for searching after me and other honest men of my sort and I will make him give satisfaction for plundering me spoken of a Justice of Peace no Colloquium was laid the Court was divided 163 Where it doth not lie Words were laid to be spoken ad tenorem effectum sequen ' which is not an express allegation that they were spoken 71 72 Action on the Case against a Common Carrier Where it was brought against him upon an Assumpsit in Law and likewise upon a Tort the Declaration is not good 322 Action on the Case for a wrong See Pleading For diverting of a Water-course the Antiquity of the Mill must be set forth 49 2. It lies against a wrong doer upon the bare possession only and the Plaintiff need not set forth whether he hath a Title by Grant or Prescription for that goes to the right 51 52 132 3. If the Declaratien is for the diverting of the Water ab antiquo solito cursu this amounts to a Prescription which must be proved at the Trial or the Plaintiff will be non-suited 52 4. Whether it lieth for the making of a scandalous Affidavit in Chancery 108 5. For selling of Oxen affirming them to be his own ubi revera they were not but doth not say sciens the same to be the Goods of another or that he sold them fraudulenter or deceptive 't is naught upon a Demurrer but good after Verdict 261 6. Where several are guilty of a wrong the Action may be brought against either 321 7. Debt upon the Statute of Ed. 6. for not setting out Tithes brought against two Tenants in Common one of them did set out the Tithes and the other carried them away it ought to be brought only against the wrong doer 322 8. For disturbing of a Man in a Common Passage or Common High-way no Action on the Case lieth without a particular damage done to himself for the proper remedy is a Presentment in the Leet 294 Administrator Vide Infant 18 Ordinary Interest 2 Pleading 2 Administrator durante minore aetate hath no power over the Estate 24 2. Administration could not be granted by the Spiritual Court before the Statute of Ed. 3. 24 3. Where 't is once granted whether it ought to be repealed 25 4. Administrator had the whole Estate in him before the Statute of Distributions 60 5. He then gave Bond to distribute as the Ordinary should direct ibid. 6. The Father died
An Administrator pleaded a Judgment in Bar to an Action of Debt for 100 l. brought against him and that he had not Assets praeterquam bona non attingen to 5 l. but did not shew the certain value of the Goods and yet held good ibid. 3. A Judgment upon a simple Contract may be pleaded in Barr to an Action of Debt upon a Bond 115 4. A Possession where 't is only an Inducement to a Plea and not Substance the Defendant may justifie upon such a possession against a Wrong-doer 132 5. Where a special Justification is to an Action of Assault and false Imprisonment the cause of Commitment must be set forth in the Plea 160 6. Where the defence consists in matter of Law the Defendant may plead specially but when 't is Fact he must plead the geneal Issue 166 7. Where special matter which might be given in Evidence at the Trial and which amounts to no more than the general Issue may be pleaded ibid. 8. When a Man is brought into Court by Capias he ought to plead instanter because he hath given delay to the Court 215 9. So where he appears upon Recognizance or in propria persona or is in Custody for any Misdemeanour he ought to plead instanter ibid. 10. In Covenant to pay so much Mony to the Plaintiff or his Assigns as should be drawn upon the Defendant by Bill of Exchange he pleaded that the Plaintiff secundum legem mercatoriam did assign the Mony to be paid c. it ought to have been secundum consuetudinem mercatoriam 226 227 11. If an Action is brought against an Inn-keeper or Common Carrier the Declaration must be secundum legem consuetudinem Angliae 227 12. In Trespass the Plaintiff prescribed as to the Freehold and alledged a Custom in the Copyholders to have solam separalem pasturam c. whether he could make a joynt Title in the same Declaration by virtue of a prescription and Custom 250 13. If the Plea is double the Plaintiff ought to demurr 251 14. The Condition of a Bond was to acquit discharge and save harmless Non damnificatus generally is not a good Plea without shewing how acquitted and discharged 252 15. Mutuatus for 400 l. the Defendant pleaded an Attainder of Treason in Abatement the Plaintiff replied that after the Attainder and before the Action he was pardoned c. and concludes unde petit Judicium dampna sua for this cause Replication was held ill 281 Pledges See Replevin Replevin in an inferior Court by Pleint removed in B. R. the Plaintiff was nonsuited and a Sci. Fac. brought against his Pledges and held good 58 2. There are no Pledges of Returno Habend ' at the Common Law the Sheriff was not obliged to take Pledges in a Replevin by Plaint 75 Poor A Man had 5 l. to remove out of one Parish into another who gave Bond to repay it if he returned within forty days he stayed there so long and it was held a good Settlement 67 2. A Note in writing must now be left pursuant to the Statute to make a Settlement 247 Possession 'T is sufficient to maintain an Action against a Wrong-doer 48 Prerogative Whether a Lease was made pursuant to a Power in a Proviso to make Leases for three Lives or 21 years or for any Term upon three Lives the Lease made was for 99 years determinable upon three Lives 268 269 Power In granting of Letters Patents of the sole printing exclusive of all others 76 129 2. Where no individual person can claim a Right or Property it must be vested in the King by Law 76 3. Whether the King hath a Prerogative to restrain Trade to a particular number of Men in particular places 127 4. He may command his Subjects to return out of a Foreign Nation ibid. 5. He may regulate Trade by Letters Patents Prescription See Common 2. Pleading 12. For a way he may set forth his Estate without shewing how he came by it 52 2. Where it cannot be by a Que Estate to have Retorna Brevium 200 3. Where it may be to hold Pleas Leets and Hundreds without matter of Record 201 4. For all the Tenants of a Mannor to fowl in a Free Warren this Prescription is not too large it might not be good upon a Demurrer but 't is otherwise after a Verdict 246 5. For a Profit apprender in alieno solo the Tenants of a Mannor may prescribe by a Que estate exclusive of the Lord ibid. 6. There must be a certain and permanent Interest abiding in some person to maintain a Prescription and therefore it will not lie ratione commorantiae 290 7. To have Common sans numbre is good but ad libitum suum which is almost the same thing is void ibid. 8. It may be joyned with a Custom in the same Declaration 251 9. Where 't is laid in a discharge as to be exempted from Toll or for an easment as for a Way to a Church not only a particular person but the Inhabitants of a whole Vill may prescribe but where it relates to the Profit or Interest in the Land it self 't is not so 292 Presentment In a Court Leet which concerns the person and not the Freehold whether traversable 137 138 Privity of Contract See Local Action 4. Action against an Administratrix of a Term for Rent incurred after the Assignment of the Lease the Privity of Contract of the Intestate was not determined by his death but Administratrix shall be charged with his Contracts as long as she hath Assets 326 'T is not gone either by an Assignment of the Term or death of the Lessor neither is it transferred to the Assignee by the Statute of H. 8. for that Statute only annexeth such Covenants which concern the Land with the Reversion 337 338 Proof See Prohibition Prohibition Not to be granted because a Temporal Loss may ensue 67 2. Where some words are actionable at Law and some punishable in the Spiritual Court a Prohibition shall be granted for otherwise it would be a double vexation 74 3. Libel causa jactationis maritagii the Suggestion for a Prohibition was that he was indicted at the Old Bayly for marrying two Wives that he was convicted in a Court of that Offence which had a proper Jurisdiction c. and a Prohibition was granted 164 4. A person lived in one Diocess and occupied Lands in another where he was taxed towards the finding of Bells for that Church for which a Suit was commenced in the Bishop's Court where the Lands were and he suggested the Statute of H. 8. that no Man shall be cited out of his Diocess except for some Spiritual Cause neglected to be done there and a Prohibition was granted for this was not a Spiritual Cause neglected to be done because Church Ornaments are a personal Charge upon the Inhabitants and not upon the Land Owners who dwell else where but the repairing of the Church is a real Charge upon