the Grantee for life when his Estate was enlarg'd needing no new Attornment or privity he did not thereby lose the Rent-arrear If two Jointenants in Fee let the Land for life Litt. Sect. 574 reserving a Rent to them and their Heirs if one release to the other and his Heirs this Release is good and he to whom it was made shall have the Rent of Tenant for life only and a Writ of Waste without Attornment to such Release for the privity which once was between the Tenant for life and them in the Reversion So is it if one Jointenant confirms the Land to the other and his Heirs Litt. Sect. 523. The Law must necessarily be the same if a man seis'd of a Rent-service or Rent-charge in Fee grant it to two and their Heirs or to two and the Heirs of one of them and the Tenant attorn if after one Jointenant release to the other or he which hath the Inheritance to him which hath but an Estate for life and to his Heirs the person to whom such Release is made shall thereby have a Fee-simple whereas before he had but for life in the Rent and an Estate absolute which before was joynt without any new Attornment for the reason of the former Case because there was once a privity between the Tenant and them which was never destroyed So is it if there be Lessee for life the Remainder for life he Litt. Sect. 573 in the Reversion releaseth to him in the Remainder and to his Heirs all his right he in the Remainder hath thereby a Fee and shall have a Writ of Waste and likewise the Rent of Tenant for life if any were without any Attornment of the Tenant for life for the former privity between them Enlargement of Estate by descent If a man seiz'd of a Rent-charge in Fee grant it for life to A. and the Tenant attorns after the Grantor grants the Reversion of this Rent to the Father of A. and his Heirs to whom A. attorns as in this Case he may by Sir Edward Coke's Comment and after the Father dies Coke's Litt. Sect. 556. and this Reversion descends upon A. whereby he hath a Fee-simple in the Rent no new Attornment is requisite for this enlargement of Estate Diminishing of Estate A man seis'd of a Rent-charge in Fee grants this Rent for Seven years to commence from the time of his death the Remainder in Fee and the Tenant attorns in the life time of the Grantor 2. Rep. Sir Rowland Hayward's Case as he must by the Resolution in Sir Rowland Hayward's Case 2. Rep. here the Grantor hath diminish't his Estate in the Rent from a Fee-simple to an Estate for life yet it cannot be doubted but he may distrain for his Rent-arrear And so is the Law where a man seis'd in Fee of a Rent for good consideration Covenants to stand seiz'd for life with Remainder over Vpon these grounds upon Littleton If a man seis'd of a Rent-charge in Fee grant it over to a Feme sole for a term of years the Tenant attorns and she take Husband and during the term the Grantor confirm the Rent to the Husband and Wife for their lives or in Fee they become Jointenants for life or in Fee of this Rent and need no new Attornment This Case is proved by a Case in Littleton Sect. Hence it is manifest that where a man hath a Rent for which he may once lawfully distrain by Attornment of the Tenant which gives sufficient privity to avow such Grantee or Possessor of the Rent may enlarge or change his Estate in the Rent to a greater or lesser or different Estate and needs no new Attornment or privity therefore to distrain and avow for such Rent whenever Arrear unless he become dispossess'd of the Rent and the privity to distrain and avow thereby be destroyed by a Right gained by some other to have the Rent and a Right in the Tenant to pay it to some other 9 H. 6. f. 43. Br. Avoury p. 123. To this purpose there is a Case If a man be seis'd of Land in Jure uxoris in Fee and leaseth the Land for years reserving Rent his Wife dies without having had any Issue by him whereby he is no Tenant by the Curtesie but his Estate is determined yet he may avow for the Rent before the Heir hath made his actual Entry This Case is not adjudg'd but it is much the better Opinion of the Book Objections The Conizors are in possession since the Fine of another Estate Obj. 1 than they were before the Fine that is according to the uses of the Fine which they could not be without an Alienation of the Rent to the Conizee by the Fine to enable the raising of that new use out of the Estate transferr'd to the Conizee by the Fine That by such Alienation the former privity between the Conizors and the Tenant which they had as Parceners by Attornment to the first grant of the Rent was destroy'd and therefore they cannot now distrain but for Rent-arrear since the Fine by the possession given them by the Statute of 27 H. 8. to which no Attornment is necessary and not for any Arrears due before upon the old privity As specious as this Reason seems it may be answer'd Answ That the Conizors had alwaies an actual and separate seisin and possession of the Rent and were at no time without it therefore the Conizee could have no several and separate possession of it at any time for it is not possible that two severally can possess the same thing simul semel for the same thing can no more be in two separate possessions at the same time civilly then the same thing can be in two separate places at the same time naturally Is not the Reason then of equal force that the Conizors were at no time out of possession and seisin of this Rent and consequently never lost the power to distrain for it As to say the Conizee had sometime a separate possession of the Rent from the Conizors out of which the new uses were raised and therefore the privity to distrain for the old Arrears was for sometime destroy'd Besides if the old privity be destroy'd the greatest absurdity imaginable in Law follows That a man hath a right to a thing for which the Law gives him no remedy which is in truth as great an absurdity as to say the having of right in law and having no right are in effect the same When as on the other side the loss of the Arrears and the Conizors right to them is a Consequent deduc'd from the destruction of the old privity between the Conizors and the Tenant by an imaginary and not a real possession of the Rent by the Conizee Obj. 2 Ognell's Case 4. Rep. Nor will it serve to say as is insinuated in Ognell's Case that the Conizors have dispens'd with their own right in the Arrears and therefore such
Robert the son had Issue Margaret Isabel Jane Antenatas living the First of Octob. 14 Car. 1. and now have Issue at Kingston John naturalized 9. Maii 1 Jac. John the third son by the name of Sir John Ramsey was naturalized by Act of Parliament holden at Westminster May the Ninth 1. Jac. and after made Earl of Holdernes George Ramsey the fourth Son George naturalized 7 Jac. was naturalized in the fourth Session of Parliament held at Westminster begun by Prorogation 19 Febr. 17 Jac. and after had Issue John primogenitum filium Quodque idem Johannes had Issue John the now Defendant primogenitum suum filium but finds not where either of these were born nor the death of George Nicholas the second Son had Issue Patrick his only Son Nicholas had Issue Patrick a Native 15 Jac. born at Kingston after the Union 1 Maii 1618. about 15 Jac. John the third Son Earl of Holdernes seiz'd of the Mannors Rectory and Premisses in the Declaration mentioned with other the Mannors of Zouch and Taylboys John covenanted to levy a Fine de Premissis 1 Jul. 22 Jac. and divers other Lands in the County of Lincoln in Fee by Indenture Tripartite between him on the first part Sir William Cockayne and Martha his Daughter of the second part c. Dated the First of July 22 Jac. Covenanted to levy a Fine before the Feast of St. Andrews next ensuing to Sir William of all his said Lands To the use of himself for life then to the use of Martha his intended Wife for life with Remainder to the Heirs Males of his body begotten on her Remainder to such his Heirs Females Remainder to his right Heirs The Marriage was solemnized the Seven and twentieth of Sept. 22 Jac. John married 29 Sept. 22 Jac. He levied the Fine Octab. Michael 22 Jac. John died 1 Car. 1. Jan. 24. The Fine accordingly levied in the Common Pleas Octabis Michaelis 22 Jac. of all the Lands and Premisses among other in the Declaration mentioned The Earl so seiz'd as aforesaid with the Remainder over at Kingston aforesaid died the Four and twentieth of January 1 Car. 1. His Countess entred into the Premisses in the Declaration mentioned and receiv'd the Profits during her life After the Earls death a Commission issued Inquisition after his death capt 29 Febr. 7 Car. 1. and an Inquisition taken at Southwark in Surrey the Nine and twentieth of February 7 Car. 1. By this Inquisition it is found the Earl died seiz'd of the Mannor of Zouch and Taylboys and divers Land thereto belonging in Com. Lincoln and of the Mannor of Westdeerham and other Lands in Com. Norfolk and of the Rectory of Kingston and of the Advowson of the Vicaridge of Kingston in Com. Surrey but no other the Lands in the Declaration are found in that Office And then the Tenures of those Mannors are found and that the Earl died without Heir But it finds that the Earl so seiz'd levied a Fine of the Premisses to Sir William Cockayne per nomina Maneriorum de Zouches Taylboys Rectoriae de Kingston cum omnibus Decimis dictae Rectoriae pertinentibus and finds the uses ut supra and so finds his dying without Heir c. It finds the Fine levied in terminis Michaelis 22 Jac. but not in Octabis Michaelis as the Special Verdict finds but between the same persons The Irish Act to naturalize all Scots 4 Jul. 10 Car. 1. The general Act of Naturalizing the Scottish Antenati in the Kingdome of Ireland was made in the Parliament there begun at the Castle of Dublin the Fourth of July 10 Car. 1. Nicholas died 1 Sept. 10 Car. 1. Nicholas died the First of September 10 Car. 1. Leaving Issue Patrick Murrey's Pat. 25 Octob. 10 Car. 1. King Charles the First by his Letters Patents dated the Five and twentieth of October the Tenth of his Reign under the Great Seal granted to William Murrey his Heirs and Assigns in Fee-farm All the said Mannors Lands and Rectory mentioned in the Declaration with the Reversion depending upon any life lives or years Patrick conveys to the Earl of Elkin 16 Febr. 1651. Patrick and Elizabeth his wife by Indenture dated the Sixteenth of February 1651. Covenant with the Earl of Elkin and Sir Edward Sydenham in consideration of Eleven hundred pounds and bargained and sold the Premisses in the Declaration to them and their Heirs and covenanted at the Earls charge to levy a Fine with proclamation Patrick Uxor levy a Fine à die Paschae in fifteen days to the use of the Earl and his Heirs of the Premisses before the end of Easter Term next and accordingly did levy it with warranty against them and the Heirs of Patrick by force whereof and of the Statute of Uses the said Earl and Sydenham were seiz'd c. The Earl and Sydenham convey to the Countess Dowager 10 Mar. 1652. The Earl of Elkin and Sydenham by Indenture of Lease dated the Tenth of March 1652. and by Deed of Release and Confirmation conveys the Premisses to Amabel Dowager of Kent and the Lady Jane Hart viz. the Eleventh of March 1652. by way of Bargain and Sale to them and their Heirs who entred by the Lease and were in quiet possession at the time of the Release The Dowager conveys to Pullayne and Neale The Dowager and Lady Hart by like Conveyance of Lease and Release bargained and sold to Pullayne and Simon Neale dated the First and Second of November 1655. who entred and were in possession as aforesaid John Ramsey the now Defendant entred in 15 Car. 2. and kept possession Dat. 25 Sept. 1656. Pullayne and Neale convey to Talmuch and Weld by Bargain and Sale 20 Jan. 16 Car. 2. John Pullayne and Symon Neale by Deed of Bargain and Sale duly inrolled convey'd the Premisses to Lionel Talmuch and Humphrey _____ their Heirs and Assigns Lionel and Humphrey demis'd to Philip _____ the Plaintiff having entred and being in possession by Indenture dated the Twentieth of January 16 Car. 2. John then in possession and John re-entred upon the Plaintiff and Ejected him The Questions upon this Record will be three 1. Whether a Naturalization in Ireland will naturalize the person in England If it will not all other Questions are out of the Case 2. If it will then whether by that Act for naturalizing the Antenati of Scotland any his brothers had title to inherit the Earl of Holdernes in the lands in question By reason of the Clause in the Act of Naturalization That nothing therein contained should extend to avoid any Estate or Interest in any Lands or Hereditaments which have already been found and accrewed to his Majesty or to King James for want of naturalization of any such person and which shall and doth appear by Office already found and return'd and remaining of Record or by any other matter of Record An Office was found as appears
than a local Subject ibid. 286 5. He must be otherwise a Subject than any Grant or Letters Patents can make him ibid. 6. The Natives of Jersey Garnsey Ireland and the English Plantations c. are not Aliens 268 in loco 278 279 7. Those which are born in the Kings Forreign Plantations are born his Natural Subjects and shall inherit in England 279 8. A Natural Subject is correlative to a Natural Prince and a man cannot have two natural Soveraigns no more than two Fathers or two Mothers 280 273 in loco 283 9. The several ways by which men born out of England may inherit in England 281 10. An Antenatus in Scotland shall not inherit without an Act of Parliament because he is an Alien 274 in loco 284 287 11. Who are the Antenati Postnati and the difference between them 273 in loco 283 12. An Act of Parliament in Ireland shall never Naturalize an Alien to England to make him inheritable there 274 in loco 284 13. No Tenure by Homage c. in any of the Kings Dominions acquired by Conquest or by Grant or Letters Patents can make a man inheritable in England 279 14. No Laws made in any Dominion acquired by Conquest or new Plantation by the Kings Governor or people there by virtue of the Kings Letters Patents can make an Alien inheritable in England 279 15. One Naturalized in Scotland since the Union cannot inherit in England 268 in loco 278 279 280 285 16. A man born a Subject to one that is King of another Country and who afterwards comes to be King of England is an Alien and shall not inherit in England ibid. 285 286 17. An act of Law making a man as if he had been born a Subject shall not work the same effect as his being born a Subject which is an effect of Law 280 18. An Alien hath issue a Son and afterwards is Denizen'd and he afterwards hath another Son here the youngest Son shall inherit 285 Allegiance 1. All Allegiance and Subjection are acts and obligations of Law the subjection begins with the birth of the Subject at which time the Kings protection of him likewise begins 279 Appendant 1. Whatsoever is appendant to the Land goes to the Occupier thereof naturally 190 2. An Advowson may be appendant to a Mannor 12 Apprentice 1. The Law permits not persons who have served Seven years to have a way of livelyhood to be hindred from the exercise of their Trades in any Town or part of the Kingdom 356 Arch-bishop See Ordinary Dispensation 1. The Arch-bishop may dispense for a Plurality 20 Assets 1. The manner of pleading Assets ultra 104 Assignee and Assignment 1. Offices or acts of personal Trust cannot be assigned for that Trust which any man may have is not personal 180 181 2. An Occupant becomes an Assignee in Law to the first Lessee 204 3. If a man Covenants against himself his Executors Administrators and Assigns yet if his Assigns do a tortious act it is no breach of the Covenant because he may have remedy by Action for the tort 118 to 128 Assise 1. An Assise will not lye for a Rent issuing out of Tythes barely 204 Attaint See Title Statutes 3 11. 1. An Attaint lies only in Civil not Criminal Causes 145 146 2. Jurors are not finable for a false Verdict an Attaint only lies against them 145 Attorney 1. An Attorney cannot bring Debt for Soliciting but Case only 99 2. The Defendant cannot wage his Law for Attorneys Fees ibid. Attornment 1. By the Common Law an Attornment was requisite to entitle the Lord the Reversioner the Grantee of a Remainder or of a Rent by Deed or Fine to distrain for Rent in arrear 39 2. By a Grant and Attornment the Grantee becomes actually seised of the Rent 40 3. Attornment and power to distrain follows the possession and not the use 43 4. An Attornment cannot be for a time 27 5. An Attornment of the Tenant doth not disclaim but affirm his possession For it is the act of the Tenant by reason of his being in possession 193 6. A mans Estate in a Rent-charge may be enlarged diminished or altered and no new attornment or privity requisite to such alteration 44 7. Attornment is requisite to the Grant of an Estate for life but to a Confirmation to enlarge an Estate it is not 44 45 46 8. A Rent-charge is granted to Commence Seven years after the death of the Grantor Remainder in Fee Attornment must be made in the life time of the Grantor 46 9. If a Fine is levied of the Reversion of Land or of a Rent to uses the Cestuy que use may distrain without Attornment 50 51 10. Where a Rent Reversion or Remainder is sold by Bargain and Sale the Bargainee may distrain without Attornment 51 11. Where a man is seised of a Rent-charge and grants it over to which the Tenant attorns and he afterwards retakes that Estate here must be a new Attornment for the former privity is wholly destroyed 44 12. Where an Attornment shall be good to a contingent use 52 Bargain and Sale See Intollment 1. WHere a Rent Reversion or Remainder is sold by Bargain and Sale the Bargainee may distrain for the Rent without Attornment 51 Baron and Feme 1. The man after the marriage hath the deduction of the woman ad Domum Thalamum and all the civil power over her and not she over him 306 2. The Interdicts of carnal knowledg in the Levitical Law were directed to the men not to the women who are interdicted but by a consequent for the woman being interdicted to the man the man must also be interdicted to the woman for a man cannot marry a woman and she not marry him 305 Bishop See Ordinary Archbishop 1. What Bishops were originally 22 2. A Parson is chosen Bishop his Benefices are all void and the King shall present 19 20 3. It is not at all inconsistent for a Bishop to be an Incumbent 22 4. A Bishop may be an Incumbent after Consecration 24 5. How many Benefices a Bishop may retain by a Dispensation 25 6. No Canon Ecclesiastical can be made and executed without the Kings Royal assent 329 7. Bishops in Wales were originally of the foundation of the Prince of Wales 411 Canons Ecclesiastical See Title Ecclesiastical Court 1. WHat Canons are good and binding and what not 327 328 Capias ad Satisfaciendum See Execution Certiorari 1. A Certior lies out of the Chancery to Ireland to certifie an Act of Parliament but it doth not lye to Scotland 287 2. A Certiorari doth not lye to Wales to certifie a Record to the Courts at Westminster to the intent that Execution may issue out here upon it 398 Certificate 1. There are many things whereof the Kings Courts sometimes ought to be certified which cannot be certified by Certiorari 288 Chancery 1. The Chancery may grant a Habeas Corpus and discharge a Prisoner thereupon as well
usually letten Lands which have been twice letten are within this proviso 33 2. Of Lands which have at any time before been usually letten that which was not in Lease at the time of the proviso nor twenty years before is out of the power 34 Possession 1. He that is out of possession if he brings his Action must make a good Title 8 2. Where one man would recover any thing from another it is not sufficient to destroy the Title of him in possession but you must prove your own to be better than his 58 60 3. When a man hath gotten the possession of Land that was void of a Proprietor the Law casts the Freehold upon him to make a sufficient Tenant to the Precipe 191 4. Prior possession is a good Title against him who hath no Title at all 299 5. A separate possession of one and the same Land can never be in two persons at one and the same time 42 47 6. By a Fine the Estate may be changed although the possession is not changed 42 43 7. The Conuzee of a Rent granted by Fine to Uses cannot have any actual Seisin nor be in possession since the 27 H. 8. 49 Quare Impedit 1. WHere in a Quare Impedit the Plaintiff and Defendant are both actors 6 7 8 58 2. The Plaintiff in his Count must alledge a presentation in himself or in those from whom he claims 7 8 17 57 3. So likewise must the Defendant because they are both Actors 7 8 57 60 4. The Plaintiff must recover by his own strength and not by the Defendants weakness 8 58 60 5. Where the King or a common person in a Quare Impedit sets forth a Title which is no more than a bare Suggestion he shall not then forsake his own and endeavour to destroy the Defendants Title 61 6. In all Quare Impedits the Defendants may traverse the presentation alledged by the Plaintiff if the matter of Fact will bear it 16 17 7. But the Defendant must not deny the presentation alledged where there was a presentation 17 8. Where the Presentation and not the Seisin in gross of the Advowson or Appendancy is traversable 10 11 12 13 9. When the Seisin in gross or appendancy is traversable 12 10. An Incumbent is elected Bishop and before Consecration he obtains a Dispensation in Commendam Retinere he is afterwards consecrated and dyes the Patron shall present and not the King 18 19 20 21 22 23 24 25 26 27 11. If a man who hath a Benefice with Cure accepts of another without Dispensation or Qualification the first Benefice is void and the Patron may present and his Clerk who is admitted instituted and inducted may bring his Action of Trespass or Ejectment 129 130 131 12. All Quare Impedits for disturbance to Churches within the Lordships Marchers of Wales shall be brought in England in the next adjoyning County 409 410 13. Judgment with a Cessat Executio upon the Bishops Disclaimer 6 14. Where the Parson Patron and Ordinary are sued in a Quare Impedit and the Ordinary disclaims and the Parson looseth by default the Plaintiff shall have Judgment to recover his presentation and a Writ to the Bishop to remove him with a Cessat Executio until the plea is determined between the Plaintiff and Patron ibid. Rebutter See Title Warranty 1. WWO may Rebut 384 2. The difference between a Rebutter and Voucher 385 386 387 3. Whether the Tenant in possession may Rebut without shewing how he came to the possession 385 4. Whether a Rebutter may be when the warranty is determined 387 5. How many several sorts of persons may Rebut and how those that come in ex institutione dispositione legis may Rebut 390 391 392 Recital 1. The Recital of one Lease in another is not a sufficient proof that there was such a Lease as is recited 74 75 Recognizance See Title Statutes 8. 1. The Chancery and all the Courts at Westminster had before the Statute of Acton Burnel and still have power to take Recognizances 102 2. So likewise may every Judge take a Recognizance in any part of England as well out of Term as in Term 103 3. Where a Recognizance taken before the Chief Justice of the Common Pleas is in the nature of a Statute Staple 102 4. Execution upon such Recognizances are not as upon Statutes but by Elegit ibid. Record 1. How a Record is to be pleaded 92 Recovery and Common Recovery See Title Statutes 13. See Voucher Warranty 1. Where a Recovery against its nature shall be a Forfeiture because it is taken as a common Conveyance 51 2. A Rent may arise out of the Estate of Cestuy que use upon a Recovery which was to have risen out of the Estate of the Recoverer 51 Release 1. Joyntenants may release and confirm to each other 45 Remainder See Title Warranty 1. A Remainder must depend upon some particular Estate and be created at the same time with the particular Estate 269 2. A Remainder cannot depend upon an absolute Fee simple 269 367 3. If Land is devised to A. and his Heirs as long as B. hath Heirs of his body the Remainder over this is good in a Devise not as a Remainder but as an Executory Devise 270 4. A Remainder in Fee upon a Lease for years 46 5. The Statute de Donis restrains not the warranty of Tenant in Tayl from barring him in the Remainder in Tayl by his warranty descending upon him 367 377 Rent 1. By the Common Law there ought to be an Attornment to enable the Distrainor to make a good Avowry upon a Distress for Rent 39 2. Where a Rent is well vested and there is an Attornment when ever the Rent is arrear a Distress is lawful unless the power is lost ibid. 3. An Estate in a Rent-charge may be enlarged diminished or altered and no new Attornment or privity requisite 44 45 46 4. The power to distrain may be lost by a perpetual Union Suspension pro tempore Dying without Heir Granting of it upon Condition and by a granting over 39 5. The several things that a Rent is subject to 40 6. Rent is granted pur auter vie the Grantee dies the Rent is thereby determined 200 201 7. Where Rent is arrear and afterwards it is granted over in Fee and an Attornment thereupon here the Grantor hath lost his arrears and cannot afterwards distrain 40 8. A Rent may arise out of the Estate of Cestuy que use upon a Recovery 52 9. There can be no Occupancy of a Rent 200 Reversion See Title Warranty 1. By the grant of a Reversion Lands in possession will not pass but by the grant of Lands a Reversion will pass 83 2. If Tenant for life alien with warranty which descends upon the Reversioner such alienation with warranty is not restrained by the Statute de Donis 370 3. An alienation with warranty which shall hinder the Land from reverting to the Donor or his
as much as to say wherein no man had right for that which is equally every mans right is no mans right Whence it follows for I shall not speak of the usage or extent of such a possession by natural Occupancy it being a subject too large and not necessary for my present purpose 1. That there can be no Occupancy natural of any thing wherein another than the Occupant hath right For by the definition made natural Occupancy is the first right 2. A Claim without actual possession cannot make a man a natural Occupant For 1. When a Claim is cannot be possibly known to all concern'd in the Occupancy of a natural thing and what cannot be known is as to all effect of right as if it had not been nor is there any Character of a natural Claim but the possession and use of the thing but civilly there may either by word or other sign agreed on 2. The end of a natural Right to any natural thing is the separate use of the thing to a part of Mankind which cannot be used by all Mankind but if Claim only would give a Right to the things of nature they might still remain as much without use after the Claim as before which agrees not with the end of Nature in giving a Right to natural things 3. If Claim could give a Natural Right one might claim all things in the Universe not already appropriated and might have done so in the beginning of time when nothing almost was appropriated 4. A natural Occupant hath no Estate of Fee Freehold or the like which are Estates formed and raised by municipal Laws but hath only a bare possession to keep or forsake 5. That Land possessed by a natural Occupant must be without any sort of Vassallage of Service Rent Condition or other Charge whatsoever for those servitudes upon the Land cannot be conceiv'd without a former right in him that laid them but natural Occupancy of things wherein none had any former right or having any have deserted it for naturally a man can have nothing against his own will 6. Two or more cannot at the same time have severally plenary possession that is Occupancy of the same thing therefore none can have right to that by reason of possession whereof another is already possess'd for then there would be two plenary Possessors severally of the same thing at the same time which is impossible And although every Nation hath by Consent and Agreement among the people of it its proper Laws to guide and determine mens Properties to all things capable of property and ownership yet the ancientest Nations of the World have no other right against each other to their own Countries and Territories than this original and natural occupancy and that Nation that will not admit a right by occupancy to another Nation in the Land so possess'd by it must at the same time confess they have no right to their own which they hold but in like manner They who would be further satisfied concerning this kind of occupancy may resort for exactness above other Books upon this Subject to Mr. Selden's Mare Clausum Seldeni Mare Clausum l. 1. Grotius de Jure Belli l. 1. c. 3 4. lib. 1. and to Hugo Grotius his first Book de Jure Belli Pacis c. 3. de acquisitione originaria rerum c. 4. de derelictione praesumpta eam secuta occupatione c. 1. By Civil Occupancy I mean such an occupancy either of things immoveable as Lands or of things moveable as is according to institution and the law of the place and particularly according to the Law of England as to the decision of the Question before us 2. By the Law of England there is no occupancy by any person of any thing which another hath a present right to possess wherein the Law of the Land agrees with that of natural occupancy Occupancy by the Law must be of things which have natural existence as of Land or of other natural things not of things which have their being and creation from Laws and Agreements of men for there is no direct and immediate occupancy of a Rent a Common an Advowson a Fair a Market a Remainder a Dignity and the like Cok. Litt. f. 41. b. Cr. 41 El. f. 721. Crauleys C. p. 50. no Occupancy of a Rent There can be no Occupant of any thing that lieth in grant and cannot pass without Deed because every Occupant must claim by a que estate and averr the life of Cestuy que vie And in this the Civil Occupancy with us of Land agrees with Natural Occupancy which must be of a thing that hath natural existence and not only legal But although the Occupancy be always of a natural thing yet the Occupant doth thereby by the Law enjoy several things many times that have their being by Law only as an Occupant of Land may thereby enjoy a Common Occupant of a House Estovers of the demesne Lands of a Mannor the Services and Advowsons appendant which are not themselves natural things but things created by Law nor are they immediately and by themselves capable of Occupancy but with reference to and as adjuncts of the Land and herein the civil Occupany differs from the natural And the reason is clear because the occupancy of the Land which ought not to lye void doth not sever or separate any thing from the Land which the Law hath joyned with it and if it doth not separate from it that which is joyn'd with it by Law though that be not capable of Occupancy in it self as an Advowson or Common it must follow that such things continue joyn'd or belonging to the Land as before notwithstanding the occupancy of the Land Cok. Litt. f. 41. b. In civil occupancy the Land in occupancy is charg'd with all the servitude impos'd by the first Lessor or by the Law As 1. to the payment of Rent 2. to be subject to waste 3. to forfeiture 4. to other Conditions wherein it differs from Land whereof a man is a natural occupant As to the civil occupancy of moveable things which are commonly termed personal things or goods there are few of those in our Law that have not a Proprietor and consequently no Occupant can be of them those which fall under occupancy of that kind are for the most part found in things ferae naturae whose acquisition is either per piscationem Bract. l. 2. c. 1. as in Fish or per aucupium as in Fowl or per venationem by hunting These do cedere occupanti communi Jure 1. Hence it follows by way of Inference and Corollary That there can be no primary and immediate Occupancy of a Tithe for it is not in its own nature capable of Occupancy more than a Rent or Common is and is in truth in its nature but a Rent it cannot pass by it self but by Deed and as other things which lye in grant A second thing that follows
out of the former Premisses is That the Freehold qua Freehold is not the thing whereof there is an Occupancy for the Freehold is not a natural thing but hath its essence by the positive Municipal Law of the Kingdome it cannot abstract from the Land in this matter of Occupancy he either entred into or possessed The Freehold is an immediate consequent of the possession for when a man hath gotten the possession of Land that was void of a Proprietor or other thing capable of Occupancy the Law forthwith doth cast the Freehold upon the Possessor to make a sufficient Tenant to the Precipe Therefore As to the first Question Whether Holden the Plaintiffs Entry Quest 1 upon the Lessee Taverner's possession into the House Glebe and Barn the First of March 1666. and openly saying I enter and take possession of this House Glebe and Barn and the Ground thereto belonging and the Tithes of Woolney in my own Name and Right as Occupant upon a Lease made to Giles Astly and his Assigns for three Lives by Dr. Mallory Prebend of Woolney did make him Occupant of the House Land and Tithe or either of them the Lessee Taverner not having made any Claim as Occupant to any of them I hold clearly this Entry and Claim did not make Holden Occupant of the House Land or Tithe or of any of them To every Occupant of Land or other thing capable of Occupancy two things are requisite 1. Possession of the Land which was void and without Owner 2. The having of the Freehold to avoid an obeyance which is had as well where the possession is not void as where it is The first that is the possession is acquired by the party and his Act but the Freehold is acquir'd by the Act of Law which casts it upon the possession assoon as there is a Possessor or where it finds a Possessor when the Freehold is in none 1. This Claim and Entry was in Order to gain the first possession of the Land which was void but that was impossible to be had for the Lessee Taverner had the possession before he held it then therefore the Claim was to no end 2. Secondly A man cannot be an Occupant but of a void Possession or of a Possession which himself hath but here was no void Possession when Holden enter'd and claimed as Occupant for the Lessee was in lawful possession of the House and Barn and Land at the time of the entry and claim 3. Thirdly If this Entry and Claim should make Holden a legal Occupant which cannot be without gaining the possession then there would be two plenary legal possessors of the same thing at the same time Holden by his Entry and Claim and Taverner the Lessee by virtue of his lease but that is impossible there should be two plenary possessors of the same thing at the same time Therefore Holden can be no Occupant by such Entry and Claim Skelton Hay 17 Jac. Cr. 554. b. 4. This very Case in every point hath been resolv'd in the Case of Skelton and Hay 17 Jac. where upon an Ejectment brought a Special Verdict found That the Bishop of Worcester made a lease to Sir William Whorehood of certain land for his own and the lives of two of his Sons Sir William did let the land to John Mallett at will rendring Rent and dyed Mallett continued the possession not claiming as Occupant one of Sir William's Sons entred as Occupant and made a lease to the Plaintiff in the Action It was adjudg'd that Mallett the Defendant being in possession the Law cast the Freehold upon him without Claim and had he disclaim'd to hold as Occupant Chamberlayn Ewes C. Rolls 2. part f. 151. Lett. E. keeping the possession he must have been the Occupant for where one entred to the use of another he that entred was adjudg'd the Occupant Which Case proves one may be an Occupant against and besides his own intention and therefore a Claim to denote his intention 5. To be an Occupant is not necessary and Tenant for years as well as at will is Occupant by that Case Besides claiming to be Occupant is to claim to be in possession or to claim the Freehold or both but the Law binds not a man to claim that which he hath already and therefore he that hath possession and doth occupy the land is not to claim possession or to be Occupant of it no more is he to claim a Freehold which he already hath for the Law hath cast it where it finds the possession so having both possession and Freehold the Law binds him not to claim what he hath 6. Claim is never to make a Right which a man hath not but to preserve that which he hath from being lost As Claim to avoid a Descent whereby a man had lost his right to enter so a man makes no Claim to be remitted when by act of law he is in his Remitter As to the second Question Whether Frances Astly the Relict Quest 2 of Giles entring the Five and twentieth of March 1667. upon the Lessee Taverner's possession and claiming the House Glebe and Tithe as Occupant and the Lessee Taverner attorning to her makes her an Occupant of the House Land or Tithe The Question hath nothing in it differing from the former but only the Attornment and it is clear the Attornment of Taverner the Lessee doth not disclaim his possession but affirms it for Attornment is the Act of a Tenant by reason of his being in possession Besides admitting the Tenant a perfect Occupant he might continuing so attorn to whom he pleased as well as Astly might have done in his life time yet still continue the Estate that was in him It follows then that Taverner was the undoubted Occupant after Astly's death of the House Land and Barn but whether he had the Tithe of Woolney by such his Occupancy whereof Astly died seis'd is the difficult Question Another Question will arise when Taverner the Lessee who had by lease the House Barn and Land and so found and was Occupant certainly of those when afterwards Taverner the Lessee 12 June 1667 concessit assignavit totum statum suum de in praemissis to Holden the Plaintiff and gave him Livery and Seifin thereupon what shall be understood to pass by the word praemissis if only what was leas'd and his Estate therein as Occupant and likewise the Tithe if the Tithe accrued to him by reason of being Occupant of the land For if he were Occupant of the Tithe by Act in Law by being Occupant of the land it follows not that if he past all his Estate to Holden in the House and Land and gave him Livery that therefore he past his Estate in the Tithe nor is such passing found to be by Deed. To clear the way then towards resolving the principal Question 1. At the time of Giles Astly's death the Tithes and the House and Lands were sever'd in
arrear and impounded them And Traverseth the Conversion and taking in other manner Vpon Demurrer to this Plea all the Court held the Plea to be bad and gave Iudgment for the Plaintiff 1. Because the Rent was determined by the death of the Grantee because no Occupant could be of it 2. Because the Feme was no Assignee by her taking of Administration 3. None can make title to a Rent to have it against the terr Tenant unless he be party to the Deed or make sufficient title under it Moore 664. p. 907. Salter vers Boteler The same Case is in Moore reported to be so adjudg'd because the Rent was determined by the death of the Grantee and Popham said That if a Rent be granted pur auter vie the Remainder over to another and the Grantee dies living Cestuy que vie the Remainder shall commence forthwith because the Rent for life determined by the death of the Grantee which last Case is good Law For the particular Estate in the Rent must determine when none could have it and when the particular Estate was determined the Remainder took place And as the Law is of a Rent so must it be of any thing which lies in Grant as a several Tithe doth whereof there can be no Occupant when it is granted pur auter vie and the Grantee dies in the life of Cestuy que vie 20 H. 6. f. 7 8. This is further cleared by a Case in 20 H. 6. A man purchas'd of an Abbot certain Land in Fee-farm rendring to the Abbot and his Successors Twenty pounds yearly Rent If all the Monks dye this Rent determined because there is none that can have it It lies not in Tenure and therefore cannot Escheat and though new Monks may be made it must be by a new Creation wholly In vacancy of a Parson or Vicar the Ordinary ex officio shall cite to pay the Tithes Fitz. N. Br. Consultation Lett. G. This Case agrees exactly with the Grant of a Rent or other thing which lies in Grant pur auter vie the Grantee dying the Rent determines though it were a good Grant and enjoyed at first yet when after none can have it it is determined So was the Rent to the Abbot and his Successors a good Rent and well enjoyed But when after all the Covent died so as none could have the Rent for the Body Politique was destroyed the Rent determined absolutely By this I hold it clear That if a man demise Land to another and his Heirs habendum pur auter vie or grant a Rent to a man and his Heirs pur auter vie though the Heir shall have this Land or Rent after the Grantees death yet he hath it not as a special Occupant as the common expression is for if so such Heir were an Occupant which he is not for a special Occupant must be an Occupant but he takes it as Heir not of a Fee but of a descendible Freehold and not by way of limitation as a Purchase to the Heir but by descent though some Opinions are that the Heir takes it by special limitation as when an Estate for life is made the Remainder to the right Heirs of J. S. the Heir takes it by special limitation if there be an Heir when the particular Estate ends But I see not how when Land or Rent is granted to a man and his Heirs pur auter vie the Heir should take by special limitation after the Grantees death when the whole Estate was so in the first Grantee that he might assign it to whom he pleas'd and so he who was intended to take by special limitation after the Grantees death should take nothing at all But to inherit as Heir a descendible Freehold when the Father or other Ancestor had not dispos'd it agrees with the ancient Law as appears by Bracton which obiter in Argument is denied in Walsinghams Case Si autem fiat donatio sic Bract. l. 2. de acquirendo rerum dominico c. 9. Ad vitam donatoris donatorio haeredibus suis si donatorius praemoriatur haeredes ei succedent tenendum ad vitam donatoris per Assisam mortis Antecessoris recuperabunt qui obiit ut de feodo Here it is evident That Land granted to a man and his Heirs for the life of the Grantor the Grantee dying in the life of the Grantor the Heirs of the Grantee were to succeed him and should recover by a Writ of Mordancester in case of Abatement which infallibly proves the Heir takes by descent who died seis'd as of a Fee but not died seis'd in Fee 1. Hence I conclude That if a man dye seis'd pur auter vie of a Rent a Tithe an Advowson in gross Common in gross or other thing whereof there can be no Occupancy either directly or by consequence as adjuncts of something else by the death of the Grantee in all these Cases the Grant is determined and the Interest stands as before any Grant made 2. If any man dye seis'd of Land pur auter vie as also of many of these things in gross pur auter vie by distinct Grant from the Land The Occupant of the Land shall have none of these things but they are in the same state and the Grants determine as if the Grantee had died seis'd of nothing whereof there could be any occupancy But I must remember you that in this last part of my Discourse where I said That if a Rent a Tithe a Common or Advowson in gross or the like lying in Grant were granted pur auter vie and the Grantee died living Cestuy que vie that these Grants were determin'd my meaning was and is where such Rent Tithe or other things are singly granted and not where they are granted together with Land or any other thing out of which Rent may issue with Reservation of a Rent out of the whole For although a Rent cannot issue out of things which lye in Grant as not distrainable in their nature yet being granted together with Land with reservation of a Rent though the Rent issue properly and only out of the Land and not out of those things lying in Grant as appears by Littleton yet those are part of the Consideration for payment of the Rent Cok. Litt. f. 142. a. 144. a. as well as the Land is In such case when the Rent remains still payable by the Occupant it is unreasonable that the Grant should determine as to the Tithe or as to any other thing lying in Grant which passed with the Land as part of the Consideration for which the Rent was payable and remain to the Lessor as before they were granted for so the Lessor gives a Consideration for paying a Rent which he enjoys and hath notwithstanding the Consideration given back again And this is the present Case being stript and singled from such things as intricate it That Doctor Mallory Prebend of the Prebendary of Woolney consisting of Glebe-land
the words of a Will are of ambiguous and doubtful construction they shall not be interpreted to the disinheriting of the right Heir as is already shew'd This being clear That there is no devise by this Will of the Land by implication in any kind to the Son and Daughters it follows that Katherine the surviving Daughter of the Testator and Lessor of the Plaintiff had no Title to enter and make the Lease to the Plaintiff Gardner and then as to the Case in question before us which is only Whether the Defendants be culpable of Ejecting the Plaintiff It will not be material whether The devise to the Nephew William Rose be void or not and if not void how and when he shall take by the devise which may come in question perhaps hereafter But to that point ex abundante and to make the Will not ineffectual in that point of the devise to the Nephew if no Estate for lives or other Estate be created by this Will by Implication to the Son and Daughters it follows That the Nephew can take nothing by way of Remainder for the Remainder must depend upon some particular Estate and be created the same time with the particular Estate Cok. Litt. f. 49. a. The Remainder is the residue of an Estate in Land depending upon a particular Estate and created together with the same and the Will creating no particular Estate the consequent must be That the Land was left to descend in Fee-simple to the heir at law without creating either particular Estate or Remainder upon it Sir Edward Coke hath a Case Cok. Litt. f. 18. a. but quotes no Authority for it If Land be given to H. and his heirs as long as B. hath heirs of his body the Remainder over in Fee the Remainder is void being a Remainder after a Fee-simple though that Fee-simple determines when no heirs are left of the body of B. whether that case be law or not I shall not now discuss in regard that when such a base Fee determines for want of Issue of the body of B. the Land returns to the Grantor and his heirs as a kind of Reversion and if there can be a Reversion of such Estate I know not why a Remainder may not be granted of it but for the former reason this can be no Remainder because no particular Estate is upon which it depends and if the Lord Coke's Case be law it is the stronger Cok. Litt. f. 18. a. Sect. 11. that no Remainder is in this Case But without question a Remainder cannot depend upon an absolute Fee-simple by necessary reason For when all a man hath of Estate or any thing else is given or gone away nothing remains but an absolute Fee-simple being given or gone out of a man that being all no other or further Estate can remain to be given or dispos'd and therefore no Remainder can be of a pure Fee-simple To this purpose is the Case of Hearne and Allen in this Court 2 Car. 1. Cr. f. 57. Richard Keen seis'd of a Messuage and Lands in Cheping-Norton having Issue Thomas his Son and Anne a Daughter by the same Venter devis'd his Land to Thomas his Son and his heirs for ever and for want of heirs of Thomas to Anne and her heirs and died It became a Question Whether Thomas had an Estate in Fee or in Tayl by this Will for he could not dye without heir if his Sister outlived him who was to take according to the intent of the Devisor Two Judges held it and with reason to be an Estate tayl in Thomas and the Remainder to the Daughter who might be his heir shew'd That the Devise to him and his heirs could be intended only to be to him and the heirs of his body But three other Judges held it to be a devise in Fee but all agreed if the Remainder had been to a Stranger it had been void for then Thomas which is only to my purpose had had an absolute Estate in Fee after which there could be no Remainder which is undoubted law The Case out of Coke's Littleton and this Case are the same to this purpose That a Remainder cannot depend upon a Fee-simple yet in another respect they much differ For in this last Case after an Estate in Fee devis'd to Thomas and if he died without heir the Remainder to a Stranger or Sister of the half blood not only the Remainder was void as a Remainder but no future devise could have been made of the land by the Devisor for if Thomas died without heir the land escheated and the Lords Title would precede any future devise But in that Case of Sir Edward Coke which he puts by way of Grant if it be put by way of devise That if land be devised to H. and his heirs as long as B. hath heirs of his body the Remainder over such later devise will be good though not as a Remainder yet as an Executory devise because somewhat remain'd to be devis'd when the Estate in Fee determin'd upon B. his having no Issue of his Body And as an Executory Devise and not as a Remainder I conceive the Nephew shall well take in the present Case And the intention of the Testator by his Will will run as if he had said I leave my Land to descend to my Son and his Heirs according to the Common Law until he and both my Daughters shall happen to dye without Issue And then I devise my Land to my Nephew William Rose and his Heirs Or as if he had said my Son shall have all my Land To have and to hold to him and his Heirs in Fee-simple as long as any Heirs of the bodies of A.B. and c. shall be living and for want of such Heirs I devise my Land to my Nephew William Rose and his Heirs The Nephew shall take as by a future and Executory Devise And there is no difference whether such devise be limited upon the contingent of three Strangers dying without Heirs of their bodies or upon the contingent of three of the Devisors own Children dying without Heirs of their Bodies for if a future devise may be upon any contingent after a Fee-simple it may as well be upon any other contingent if it appear by the Will the Testator intended his Son and Heir should have his Land in Fee-simple This way of Executory devise after a Fee-simple of any nature was in former Ages unknown as appears by a Case in the Lord Dyer 29 H. 8. f. 33. concerning a Devise to the Prior of St. Bartholomew in West-Smithfield by the clear Opinion of Baldwin and Fitz herbert the greatest Lawyers of the Age. But now nothing more ordinary The Cases are for the most part remembred in Pell and Browns Case that is Dyer f. 124. Ed. Clatch his Case f. 330. b. 354. Wellock Hamonds Case cited in Borastons Case 3. Rep. Fulmerston Stewards Case c. I shall instance two Cases
no such Case in 38 E. 3. f. 26. but the Case intended is 38 E. 3. f. 21. and he quotes the folio truly in his Littleton But the Case is not That an Assignee may rebutt or have benefit of a warranty made to a man and his Heirs only but that a warranty being made to a man his Heirs and Assigns the Assignee of the Heir or the Assignee of the Assignee though neither be Assignee of the first Grantee of the warranty shall have like benefit of the warranty as if he were Assignee of the first Grantee which hath been often resolv'd in the old Books To the same purpose he cites a Case out of 7 E. 3. f. 34. 46 E. 3. f. 4. which doth but remember that of 7. as adjudg'd That the Assignee of Tenant in tayl might rebutt the Donor whence he infers as before that the Tenant in possession might rebutt without any right to the warranty But the Inference holds not from that Case The Case of 7 E. 3. was That Land was given in tayl and the Donor warranted the Land generally to the Donee his Heirs and Assigns the Donee made a Feoffment in Fee and died without Issue and the Donor impleading the Feoffee was rebutted because he had warranted the Land to the Donee his Heirs and Assigns and the Feoffee claimed as Assignee of the Donee and therefore rebutted not because he had a bare possession But this Judgment of 7 E. 3. Sir Edward Coke denies and perhaps justly to be Law now because the Estate tayl being determin'd to which the warranty was first annex'd the whole warranty determin'd with it But however the Case no way proves what it is alledg'd for in Lincoln Colledge Case That a man may rebutt without ever shewing the warranty extended to him for the Feoffee did in that Case shew it So in the Case 45 E. 3. f. 18. the Feme who rebutted shew'd she was Grantee of the warranty To this may be added That what is delivered as before in Lincoln Colledge Case is neither conducing to the Judgment given in that Case nor is it any Opinion of the Judges but is Sir Edward Coke's single Opinion emergently given as appears most clearly in the Case To conclude When the Feoffees were seis'd to the use of William Vescy for his life and after to the use of the Defendant his wife for her life and after to the use of the right Heirs of William Vescy And when by Operation of the Statute of 27 H. 8. the possession is brought to these uses the warranty made by William Vescy to the Feoffees and their Heirs is wholly destroy'd For if before the Statute the Feoffees had executed an Estate to William for life the Remainder to his wife for life the Remainder to his right Heirs The warranty had been extinguish'd by such Execution of Estate and releas'd in Law for it could be in none but in William and his Heirs who could not warrant to himself or themselves By Littleton Sect. 743. for his Heirs in such Case take not by Purchase but Limitation because the Freehold was in him with a Remainder over to his right Heirs and so hath as great an Estate in the Land as the Feoffees had and then the warranty is gone by Littleton Litt. Sect. 744. And now the Statute executes the possession in the same manner and the warranty is in none for the time present or future but extinct If the warranty had been to the Feoffees their Heirs and Assigns it might have been more colourably question'd Whether the mean Remainder were not an Assignee of the Feoffees and so to have benefit of the warranty but the warranty being to the Feoffees and their Heirs only no Estate remaining in them no Assignee can pretend to the warranty 2. William Vescy could by no possibility ever warrant this Estate to the Defendant during his life and where the warranty cannot possibly attach the Ancestor it shall never attach the Heir as by Littleton's Case If a man deviseth Lands in Fee to another with warranty for him and his Heirs his Heirs shall not be bound to the warranty because himself could never be And though in that Case the Estate to be warranted commenc'd after the death of the Warranter and here the Remainder to the wife is in being before his death yet the reason differs not for himself could no more warrant this by any possibility than that and his Heir might as equally warrant the Estate devis'd as this Next Justice Jones in Spirt and Bences Case cites a Case 7 Eliz. the same with this Resolution resolved in the Common Pleas That the mediate Remainder could not be warranted In this Case if the Feoffees before the Statute had either voluntarily or by coercion of the Chancery after the death of the first Cestuy que use for life executed the Estate of the mean Remainder such person in Remainder could have no benefit of the warranty being but an Assignee of the Feoffees because the warranty was only to them and their Heirs No more can the person in Remainder here whose Estate is executed by the Statute be warranted more than if such Estate had been executed by the Common Law There are another sort of persons who may rebutt and perhaps vouch who are neither Heirs nor formally Assignees to the Garrantee but have the Estate warranted dispositione instituto Legis which I conceive not to differ materially whether they have such Estate warranted by the Common Law or by Act of Parliament The first of this kind I shall name Ass p. 9. 35 is Tenant by the Courtesie who as was adjudg'd 35 Ass might rebutt the warranty made to his wives Ancestor yet was neither Heir nor formal Assignee to any to whom the warranty was granted nothing is said in the Book concerning his vouching but certainly the wives Heir may be receiv'd to defend his estate if impleaded by a stranger who may vouch according to the warranty or may rebutt as the Case of 45 E. 3. f. 18. is But this difference is observable also where such a Tenant rebutts it appears what claim he makes to the warranty and so the Inconveniences avoided which follow a Rebutter made upon no other reason than because he who rebutts is in possession of the Land warranted A second Tenant of this kind is the Lord of a Villain 22 Ass p. 37. and therefore the Case is 22 Ass That Tenant in Dower made a Lease for life to a Villain which in truth was a forfeiture for making a greater Estate of Freehold than she had power to make and bound her and her Heirs to warranty the Lord of the Villain entred upon the Land in her life time and before the warranty attach'd the Heir who had right to enter for the forfeiture the Mother died and the Heir entred upon the L. of the Villain who re-entred and the Heir brought an Assise The L. of the Villain
pleaded the warranty and that the Heir if a stranger had impleaded him was bound to warrant the Estate and therefore demanded Judgment if the Heir himself should implead him 1. It is there agreed if the warranty had attach'd the Heir before the Lords entry the Heir had been bound but quaere 2. By that Book it seems the Lord impleaded by a Stranger might have vouch'd the Heir if the warranty had attach'd him before the Lords entry But in this Case it appears the Lord was no formal Assignee of the Villains for this warranty must be as to an Assignee for the Estate warranted was but for life and the Lords Estate was only by order of the Law A third Case of this nature is Where the Ancestor granted Lands to a Bastard with warranty but how far the warranty extended as to the Heirs or Heirs and Assigns of the Bastard appears not in the Case the Bastard died without Issue and consequently without Heir the L. by Escheat entred upon whom the Heir entred the warranty of his Ancestor having not attach'd him before the Bastards death for it seems this was in a Case where the Heir might have entred in his Ancestors life time so avoided his warranty as in the former case of the L. of a Villain by the Book the warranty having not attach'd him during the Bastards life the Lord by Escheat could have no benefit of it but if it had attach'd him he might ut videtur In this Case if the warranty were to the Bastard and his Heirs only it determined he dying without Issue and then there could be no Rebutter or Voucher by the Lord by Escheat if the warranty had attach'd the Heir but if it were to him his Heirs and Assigns then the Lord whose title is by the Act and Disposition of the Law and not as Assignee in the per had notwithstanding the benefit of this warranty quod nota These Cases are mentioned in Lincoln Colledge Case and in Spirt and Bences Case in Cr. 1. and in both places admitted for Law Nor seems this very unreasonable That the warranty being an incident to the Estate warranted should accompany it where the Law dispos'd the Estate and Land warranted to all intents 2. In many Cases the Law disposing the Estate if the warranty attended it not the disposition made by the Law were in vain for without the warranty the Estate may be necessarily avoided Such persons who come to the Estate dispositione Legis are not properly in in the post but they modally have the Estate by consent both of the Warranter and Garrantee because they have it by the Act of Law Statute or Common to whose dispose every man is as much consenting and more solemnly than he is to his own private Deed. And after this way if the two last Cases be Law the Cestuy que use having his Estate by operation and appointment of the Statute of Uses of 27 H. 8. may have the benefit of the warranty attending the Estate though he be no formal Assignee or Heir to the Feoffees to use Many other Estates are of this kind as Tenant in Dower if endowed of all the Land warranted An Occupant Tenants by the Statute of 6 R. 2. c. 6. where the Feme consents to the Ravisher Tenant by 4 5 P. M. because the ward consented to her taking away without the Guardians consent Lands warranted which after become forfeited to the King or other Lords c. Quaere in the Cases of 22 Ass p. 37. 29 Ass p. 34. Whether notwithstanding the warranty had descended upon the Heir while the Lands were in the possession of the Villain in the first Case and of the Bastard in the second Case before any entry made by either Lord the Lands could have rebutted or vouched by reason of those warranties being in truth strangers to the warranty and not able to derive it to themselves any way But if after the warranty descended upon the Villain or Bastard the Villain or Bastard had been impleaded by the Heir and had pleaded the warranty against the Heir and had Judgment thereupon by way of Rebutter then the Lords might have pleaded this Judgment as conclusive and making the Villains Title or Bastard good against the Heir and the Heir should never have recover'd against the Lords And this seems the meaning of the Book 22 Ass p. 37. if well consider'd Though in Spirt and Bences Case no such difference is observ'd Caetera desiderantur The Court was in this Case divided viz. The Chief Justice and Justice Archer for the Demandant and Justice Wylde and Justice Atkins for the Tenant CONCERNING PROCESS Out of the COURTS at WESTMINSTER INTO WALES Of late times and how anciently Memorandum These Notes following were all wrote with the proper hand of the Chief Justice Sir John Vaughan and intended to be methodised by him in order to be delivered in Court A Man taken upon a Latitat in England 10 Jac. Bolstrode part 2. f. 54 55. Hall and Rotherams Case puts in two Welch men for his Bayl Judgment passing against him it was a Question Whether after a Capias ad Satisfaciendum issued against the Principal who was not to be found Process might issue into Wales which must be by Scire Facias first against the Bayl whereupon Mann the Secondary of the Kings Bench informed the Court that it had been so done in like Cases many times But the Court was likewise informed that Brownloe Chief Pronotary of the Common Pleas affirmed they did not then use to send such Process into Wales but only Process of Outlawry But Mann affirming that their Course was otherwise in the Kings Bench the Court awarded Process into Wales against the Bayl and said If the parties were grieved they might bring their Writ of Error 1. This Award of the Kings Bench hath no other Foundation to justifie it than Mann 's the Secondaries Information That the like had been often done which was his own doing possibly and never fell under the Consideration of the Court. 2. The Court weighed it no more than to say The parties grieved might have a Writ of Error which by the way must be into the Parliament for it concerned the Jurisdiction of the Court which the Act of 27 Eliz. for Errors in the Exchequer Chamber excepts and upon that ground any injustice might be done because the party wronged may have a Writ of Error 3. Brownloe the Chief Pronotary of the Common Pleas and a most knowing man affirm'd no such Process issued thence into Wales and but only Process of Outlawry So as this awarding of Process into Wales upon the usage of that Court affirmed by Mann is counter'd by the contrary usage of the Common Pleas affirmed by Brownloe Therefore that Book and Authority is of no moment to justifie the issuing of a Scire facias into Wales 11 Jac. Bolstrode part 2. f. 156 157. Bedo v. Piper The next Case
Proviso namely Such as at any time before were not usually let and set to Farm For where a mans power is limited to lease Lands so specially qualified that is let and set usually at any time before when he could not lease at all without such special power given him he is absolutely barr'd from leasing Land which is not so qualified 2. It must be presumed Sir Arthur Throgmorton knew he had such Lands as according to his Intention were not at any time before usually set and let and had reason not to suffer them to be demiseable within that Proviso to the prejudice of those in Reversion As for example his Mansion-house Gardens Curtilages and Lands occupied in Demesne For it had been vain to provide against the leasing of Land in such manner condition'd whereof he had none so condition'd But if notwithstanding it shall be taken that any his Lands which at any time past how long soever since one two or three hundred years were demised as perhaps the scite of his House and all his Demesne were though he knew not of it shall therefore now be demiseable within this Proviso Then is the Proviso inconsistent with it self and repugnant to his meaning for he intended thereby to hinder the demising of some of his Lands But by that construction of the Proviso every part of his Land might be demised for doubtless at some time or other every part of it was demised and probably by Records or other ancient Evidence might appear so to be 3. If this were the meaning of the Proviso the word usually in it was to no purpose for it had been much clearer to say That any Lands at any time heretofore demis'd should be demiseable for 21 years by Sir Peter Temple which doubtless was not Sir Arthur's meaning and consequently this Lease of Looffield not according to his meaning 1. Now for the literal sense of the Proviso Rolls Title Power f. 261. n. 11. 2 Jac. in Banâ—o If power be to make Leases for 3 lives or 21 years of Lands usually letten Land which hath been twice letten is within the Proviso but not Land which hath been but once letten Therefore this Land of Looffield letten but once 12 Eliz. is not within the Proviso But I insist not much upon this case for the words usually demis'd may be taken in two senses The one for the often farming or repeated Acts of leasing Lands to which sense this Case doth reasonably extend But the other sense of Land usually demis'd is for the common continuance of Land in lease for that is usually demis'd and so Land leas'd for 500 years long since is Land usually demis'd that is in lease though it have not been more than once demis'd which is the more receiv'd sense of the words Land usually demis'd 2. The meaning of the words at any time is various and of contrary meaning If it be asked by way of Question Were you at any time at York It is the same as Were you ever or sometime at York So in the Question Was this Land at any time in Lease is the same as Was it ever or some time in Lease But when the words at any time are not part of a Question but of an Answer they have a different and contrary meaning As if it be asked Where may I see or speak with John Stiles and it be answered You may speak with him or see him at any time at his House There the words at any time signifie at all times and not as in the question at some time So when the words are used by way of a plain enunciation and not as part of a Question or Answer As You shall be welcome to my House at any time signifie You shall be welcome at all times So in the present Case if it-be made a Question Was such Land heretofore at any time usually letten and set to Farm imports in the Question Was this Land ever or at some time heretofore how long ago soever usually let to Farm But by way of enunciation if it be said This Land was usually let to Farm at any time heretofore it means This Land was commonly at all times heretofore let to Farm So this Land was usually in Pasture at any time heretofore signifies this Land was always or commonly in Pasture heretofore So you may lease any Land heretofore letten to Farm at any time usually is the same with heretofore letten to Farm commonly at all times And this Construction of the Proviso agrees both with the words and intention of Sir Arthur But what was not farmed at the time of this Proviso made nor 20 years before could not be said to be at any time before commonly Farmed for those 20 years was a time before in which it was not farmed But to come closer The Proviso is that Leases may be made for 21 years of any the Lands in the Deed reserving the Rents thereupon reserved at the time of the Deed made viz. 12 Jac. Which necessarily implies that the Land demiseable by that Proviso must be Land which then was under Rent for where no Rent then was the Rent then thereupon reserv'd could not be reserv'd But Looffield had then no Rent upon it for it was not let of 20 years before nor then and therefore was not demiseable by that Proviso The words or more will not at all help the Plaintiff for the words more or less are words of relation the one of addition to what was before the other of diminution for more or less must relate to something positive in the kind before and can never be a relation to nothing So more wages necessarily implies some before more meat more drink more company and in all expressions more denotes a relation to somewhat before of the kind and in the present Case reserving more Rent must imply some before reserved And therefore where none was at the time of the Deed made 12 Jac. there cannot in any congruity of speech more be reserved or intended to be reserved Quaere If the Record be mended in the point of finding the death of Sir Peter Temple and when he died In this the Chief Justice delivered the Resolution of the whole Court Hill 21 22 Car. II. Rot. 2259. C. B. Ralph Dixon Plaintiff Harts ss versus Dean Harrison Defendant In a Replevin Quare cepit Averia ipsius Radulphi ea detinuit contra vadios plegios c. Distress 21 Maii 21 Car. 2. THe Plaintiff declares That the Defendant 21 die Maii 21 Regis nunc at Sandridge in a place called Fregmorfield took three Cows of the Plaintiffs and detain'd them against Pledges quousque to his damage 40 l. The Defendant as Bailiff of Elizabeth Rooper Widow Samuel Hildersham Gent. and Mary his Wife Michael Biddulph Esq and Frances his Wife Humphrey Holden Esq and Theodosia his Wife avows and justifies the Caption for that the place in quo c. contains a Rood of
in two at the same time not out of the one and yet in the other more than the same Body can be in two several places at the same time 3. If a Feoffee to use of me and my Heirs make a Feoffment to another without consideration to the use of me and my Heirs notwithstanding there is a new Feoffment the words of a use to me and my Heirs Dyer 28 H. 8. f. 12. 6. per Baldwin Chief Justice yet the use being the former use viz. to me and my Heirs this latter is no new use given to me for I cannot have that use given which I had before for to give what I had before is no gift as is well press'd by that Book And by the same necessity where I have the possession before a new possession cannot be really given me by the Statute of 27 H. 8. whose operation is properly to give to him which had not the possession but only an use the possession which he wanted before to the use which he had before in such manner as he hath the use But here the Statute cannot give the possession to the Conizors which they never wanted nor the Conizee never had ad aliquem Juris effectum though perhaps fictitiously and in order only to a form of Conveyance which was not the end or intention of the Statute of Vses but an use invented after that might be made of the Statute in order to a general form of Conveyance by which the parties might execute their Intentions wherein the Conizee is but an Instrument or Property to execute their purpose as in Cromwells Case is said L. Cromwells c. 2. Rep. but the Statute brings the new uses rais'd out of a feign'd possession and for no time in the Conizee to the real possession and for all times in the Conizors which operates according to their intent to change their Estate but not their possession Besides it hath been admitted at the Bar that if the Fine had been levied without consideration and no uses express'd the Conizors might then have distrained for the Arrear because the uses were the same as before which if granted it resolves the Question for the Attornment and power to distrain follows the possession and not the use And if after the supposed possession of the Conisee and his being seis'd to the old uses when the Statute gives the possession back to the old uses the Conizors might distrain for the Arrears before the Fine as well as for those after what hinders their distraining for them still For the possession which the Statute gives to the old uses is as new a possession as that it gives to the new uses and the privity is the same in both Cases in regard of the Tenant And it is common experience that a Fine levied without consideration or use expressed Sir Moyle Finch's Case 6th Rep. f. 68. b. is to the use of the Conizor and his Heirs who may have an action of waste after the Fine for waste committed before as well as he could before the Fine The instant possession of the Conizee notwithstanding which differs not from this Case The next enquiry is What affinity this Case hath with the second Case propos'd viz. That if one seiz'd of a Rent in Fee grants it over to a Stranger and his Heirs and the Tenant attorns if such Grantee regrants the Rent back to the Grantor and his Heirs there must be a new Attorment of the Tenant to the Regrant for the privity by the first Attornment was totally destroyed and all Arrears of Rent lost when the Tenant attorn'd to the Grantee which Case I take to be clear Law for by the Regrant a total new Estate is gain'd in the Rent and thereby he who hath the Rent as if he never had any former Estate in it And in the present Case the Estates after the Fine are wholly new and other Estates in the Conizors to which the Tenant never attorn'd than the Conizors had before the Fine in these Respects 1. Before the Fine the Husbands had but Estates in right of their Wives and now they are Jointenants with their Wives 2. The Wives before the Fine had Estates of Inheritance absolute and now they are Iointenants with their Husbands and among themselves where Survivorship obtains 3. The Women were Coparceners before and the Husbands in right of their Wives and they are now all Jointenants 4. Two of the Coparceners had the Inheritance of entire third parts and the two other of one intire third part and now the four Women and three Husbands are equally Iointenants which are Estates much differing from the Estates they had before the Fine I must agree That where persons seiz'd of a Rent-charge by granting it over with Attornment of the Tenant have totally departed from their Estate and after retake either such an Estate as they had before or a differing Estate in the Rent they must have a new Attornment and the former privity is wholly destroyed and consequently no Arrears can be distrain'd for by reason of the first privity which is not But in this Case the Conizors never were for any moment of time out of possession of their first Estate nor destroyed the first privity by any new Attornment which either was or possibly could be but only some have enlarg'd their Estate some diminish't it others alter'd it without destroying the old privity which may stand well with the Rules of Law and consequently they may distrain for Rent arrears and avow lawfully by reason of the first privity still continuing And I must observe in this Cases that the Avowants after the Fine are the same persons avowing as before 2. That after the Fine there is but one common Avowry as before 3. That there is no new person after the Fine between whom and the Tenant there was not a privity before the Fine That a mans Estate in a Rent-charge may be enlarg'd diminish'd or otherwise alter'd and no new Attornment or privity requisite to such alteration of Estate Litt. Sect. 549. A man seiz'd of a Rent-service or Rent-charge in Fee grants the Rent to another for life and the Tenant attorns after the Grantor confirms the Estate of the Grantee in Fee-tail or Fee-simple this Confirmation is good to enlarge his Estate according to the words of the Confirmation Here no new Attornment to this new Estate which now is Fee-tail or Fee-simple in the Rent which was before but an Estate for life is requisite else the Confirmation were not good but by Littleton it is good to enlarge the Estate 2. Sir Edward Cook in his Comment upon this Case saith It is to be observ'd that to the grant of the Estate for life Littleton doth put an Attornment because it is requisite but to the Confirmation to enlarge the Grantees Estate there is none necessary and therefore he puts none No man can doubt in this Case that if Rent had been in Arrear to
Arrears in strictness of Law when the Fine is levied are not due at all but remitted and so no absurdity to have no remedy for a thing not due 1. By this reason a Law should be equally good that provides no remedy for performance of Contracts as that which doth because all Contracts for performance of which the Law gives no remedy shall in Iudgment of Law be dispens'd with releas'd discharg'd 2. By this reason a Rent-seck before seisin had of it shall be no duty because the Law gives no Remedy before seisin And consequently such Rent or such Arrears as in the present Case being paid by the Tenant may be recover'd again as the proper mony of the Tenant deliver'd to the Grantee of the Rent without any consideration upon an indebitatus Assumpsit the Law creating a promise So might a Debt paid after six years elaps'd for which by the Statute of Limitations there was no remedy yet that doth not cease to be a Debt as if it had been released By like reason if a man hath by accident had his Bonds burn'd or destroy'd whereby he had no remedy to recover the Debt by Law it should cease to be a Debt at all 32 H. 8. c. 37. To this the words of the Statute of 32 H. 8. c. 37. may be added which gives remedy for recovery of such Debts by Executors as were due to the Testators and for which there was no remedy before viz. That the Tenants did retain in their hands such Arrearages of Rents whereby the Executors could not therewith pay the Debts and perform the will of the Testator c. and surely no Arrearages could be of Rent if they were remitted in Law nor was it fit the Executors should pay the Debts or perform the Testators Will with that which was no part of the Testators Estate either in possession or as a credit If a common Recovery had been to uses of Lordships and Mannors before the Statute of 27. the Recoverors had no remedy to make the Tenants attorn for a quid Juris clamat would not lye upon a Recovery before the Statute of 7 H. 8. 7 H. 8. c. 4. c. 4. which did give remedy and which saith That such refusal of Attornment was to the great offence of their Conscience refusing and not only to the disinheritance of the Recoverors but often to the breaking of the last Wills of the Recoverees and also to the disinheritance of Husbands Wives and others to whose use the Recovery was had By which it is plain that duties for which there is no remedy often in Law are not therefore dispenced with and discharged by the party as is superficially said in Ognell's Case That the Conizee of a Rent granted by Fine to uses cannot have any actual seisin or be in possession of such Rent since the Statute of 27 H. 8. cap. 10. Before the Statute of 27 H. 8 If a Feoffment had been to uses and no Livery given or given by one Attorney when it ought to have been by two the uses in such Deed of Feoffment could never rise so if a Reversion had been granted to uses and no Attornment to the Grantee no use could rise because there was no sufficient Estate in possession And when the Statute of Vses came it could have no operation when the Estates in possession were not sufficient So if an Estate for life had been granted to the use of a man and his Heirs an Estate in Fee could not rise out of it by the Statute of 27 H. 8. c. 10. And if before the Statute a Reversion had been granted by Fine to Vses and no quid Juris clamat brought though the Land pass'd by the Fine yet the Tenant could not be distrain'd nor a Writ of Waste brought against him until he attorn'd and when the Statute came to transferr the use into the possession it could be but into such a possession as the Conizee had by the Fine without power to distrain or bring Waste for the words of the Statute are That the Estate Title Right and Possession that was in such person or persons that were or hereafter shall be seis'd of any Lands or Hereditaments to the use confidence or trust of any person or persons be from henceforth adjudged to be in him or them that have or hereafter shall have such use confidence or trust c. And therefore if before the Statute of 27. a Fine had been levied of a Rent-charge to uses as this Case is if before Attornment to or seisin had by the Conizee the Statute had come and brought the possession of the Rent to the use the Cestuy que use could have had the Rent but as a Rent-seck for which he could not distrain for want of Attornment nor have an Assise for want of seisin for the Conizee had no other possession of the Rent but after Attornment and seisin to or by Cestuy que use his possession perhaps became perfected But since the Statute if a Fine be levied of a Reversion of Lands to uses or of a Rent because the use and possession by the Statute come instantly together and the Conizee of the Fine hath no time possible to bring either a quid Juris clamat or a quem redditum reddit Sir Moyl Finch's Case Coke 6. f. 68. a for or to receive an Attornment to perfect his possession It was resolv'd in Sir Moyl Finch's Case that the Cestuy use should notwithstanding distrain and have the same advantage as if the Conizees possession had been perfected by Attornment and seisin The intent of the Statute of 27. which was to bring together the possession and the use when the use was to one or more persons and the possession in one or more other separate persons was soon after the Statute wholly declined upon what good construction or inference I know not For now the use by the name of trust which were one and the same before the Statute remains separately in some persons and the possession separately in others as it did before the Statute and are not brought together but by Decree in Chancery or the voluntary Conveyance of the possessor of the Land to Cestuy que trust So as now the principal use of the Statute of 27. especially upon Fines levied to uses is not to bring together a possession and use which at no time were separate the one from the other but to introduce a general form of Conveyance by which the Conizors of the Fine who are as Donors in the Case may execute their intents and purposes at pleasure either by transferring their Estates to Strangers by enlarging diminishing or altering them to and among themselves at their pleasure without observing that rigour and strictness of Law for the possession of the Conizee as was requisite before the Statute Which I have sufficiently evidenc'd by shewing that the Attornment of the Lessee to the Conizee or Reversioner or of the Tenant to him as
all Lands Tenements Meadows Tithe Corn and Grain Hay and Wool and all Profits to the said Parsonage belonging And also the Vicaridge of Hooknorton aforesaid with the Appurtenances And all Lands Tithes Profits to the said Vicaridge belonging And also a Pasture called Prestfield with the Appurtenances in Hooknorton aforesaid And all Commons of Sheep call'd by the name of their Founders Flock And the Hay of a Meadow call'd Brown-mead with the customary works thereto pertaining And the Tithe and Duty of a Mead call'd Hay-mead in Hooknorton aforesaid Except and reserved to the said Abbot and Covent and their Successors All Tenants and Tenantries then or after to be set by Copy of Court-Roll All Fines Reliefs Escheats Herriots Amerciaments Pains Forfeits and all Perquisites of Courts Barons and Leets To have and to hold the said Farm or Mannor and all other the Premisses with the Appurtenances Except before excepted to the said Croker his Executors and Assigns from the Feast of the Annunciation of our Lady last past before the Date of the said Deed Indented for the term of Eighty years rendring to the said Abbot Covent and their Successors yearly during the said term For the said Mannor and Farm 9 l. For the said Parsonage 22 l. 2 s. For the Common of Sheep Hay and Custom-works of Brown-Mead 5 l. For the Wool 12 l. For Prest-field 6 l. 13 s. 4 d. For the Vicaridge 6 l. 13 s. 4 d. of lawful mony c. at the Feasts of St. Michael the Arch-angel the Annunciation of our Lady by equal portions As by the same Deed Indented amongst divers other Covenants and Grants more plainly appeareth And where also as the said Bishop by his other Deed Indented Dated 8. October 1 Edw. 6. hath demis'd and to farm lett unto the said John Croker all that his Mannor of Hooknorton aforesaid with all Messuages Tofts Cottages Orchards Curtilages Lands Tenements Meadows Leasowes Pastures Feedings Commons waste Grounds Woods Underwoods Waters Mills Courts-Leets Fines Herriots Amerciaments Franchises Liberties Rents Reversions Services and all other Hereditaments whatsoever they be set lying and being in Hooknorton aforesaid in the said County with the Appurtenances Except certain Lands and Tenements in the said Town in the Tenure of the said John Croker for certain years then enduring To have and to hold All the said Mannor of Hooknorton and all other the Premisses with the Appurtenances Except before excepted to the said John Croker and his Assigns from the Feast of St. Michael the Arch-angel last past before the Date of the said latter Deed Indented to the full end of the term of Ninety years from thence next ensuing Rendring to the said Bishop and his Successors yearly during the said term Eleven pounds four shillings and nine pence at the Feasts of the Annunciation and St. Michael the Arch-angel by equal portions as by the said latter Deed among other Covenants and Grants more plainly appears The Reversion of all which Premisses are in the said Bishop and to him and his Successors do belong as in Right of his Church Now witnesseth That the said Bishop hath demis'd Ind. 1 Mar. and to Farm lett and by these Presents doth demise c. to the said John Croker All the said Mannor and Farm of Hooknorton together with all Messuages c. And all and singular other the Premisses with the Appurtenances in the said several Indentures specified and contain'd To have and to hold the said Premisses contain'd in the said first Indenture to the said John Croker his Executors and Assigns from the end expiration and determination of the said term specified in the said first Indenture unto the end and term of Ninety years next ensuing yielding therefore yearly to the said Bishop and his Successors for the said Premisses specified in the said first Indenture such and like Rents as in the said first Indenture are reserv'd at the same daies and times and To have and to hold All the Premisses specified in the said latter Indenture from the end expiration and determination of the said term specified in the said latter Indenture until the end and term of Ninety years then next ensuing Rendring yearly for the Premisses in the said latter Indenture specified such and like Rent as is reserv'd by the said latter Indenture and at the same days and times Then follows a Clause of Distress if the Rent be behind for a Month. And if the said several yearly Rents reserved by these Indentures or any of them be unpaid in part or in all by the space of one quarter of a year after any the said Feasts at which the same ought to be paid and be lawfully demanded and no sufficient Distress upon the Premisses whereupon the same is reserved to be found Then to be lawful for the said Bishop and his Successors into such of the Premisses whereupon such Rents being behind is or are reserved to re-enter and to have as in their former estate And the said Jurors further say That the aforesaid Indenture of Demise afterwards the Tenth of May Anno 1 Mar. aforesaid by the then Dean and Chapter of Oxford under their Common Seal was confirm'd and find the tenor of the Confirmation in haec verba They further find That the said Two hundred Acres of Pasture at the time of making the said Indenture and at the time of the Trespass and Ejectment were and yet are parcel of the said Mannor of Hooknorton They further find That the Rent for all the said demis'd Premisses reserv'd by the said Indenture for one whole half year ended at the Feast of Saint Michael the Arch-angel 1643. was behind and unpaid and that Robert late Bishop of Oxford the Nine and twentieth and Thirtieth Day of December 1643. into the Parsonage House then and by the Space of Forty or Fifty years before reputed and call'd the Mannor-house And that he then at the said Parsonage-house by the space of One hour next before the Sun-setting of both the said two daies remain'd and continued until and by the space of One hour after Sun-setting of both daies demanding and then did demand the Rent for the half of the year aforesaid They further say That there was no sufficient Distress upon the Premisses at the time of the demand of the said Rent thereupon And that the said Bishop the said Thirtieth Day of December 1643. aforesaid into the said Premisses enter'd They further say That all the Right State and Title term of Years and Interest of and in the Mannor Tenements Rectory and other the said Premisses by virtue of the said Indenture of Demise by the said late Bishop as aforesaid granted to the said John Croker by mean Assignments came to the said Thomas Wise That by virtue of the said several Assignments the said Thomas Wise afterwards the Fourth of January 1667. into the Premisses enter'd and was possessed for the Residue of the term of years prout Lex postulat That he so possessed
of that made in 27 H. 8. Therefore it is manifest That the sole Reason why no such lease was admitted to be in 28 H. 8. is no other than because the Jury find no such to have been made but find a suggestion of it only in Rochester's lease And it is the same exactly in our present Case The third thing deducible from the Case is That a Demise by Indenture for a term Habendum from the Expiration of another recited or mentioned term therein 35 H. 6. 34 Br. Tit. Faits p. 4. 12 H. 4. 23 Br. Faits 21. which is not or not found to be which is the same thing is no Estoppel or Conclusion to the Lessee or Lessor but that the Lessee may enter immediately and the Lessor demise or grant in Reversion after such immediate lease There is another Case resolv'd at the same time between the same Persons and concerning the same Land and published in the same Report and specially found by the same Jury Edward Earl of Oxford Son of John the Son of John Earl of Oxford by Indenture between him and Geoffry Morley Dated the Fourteenth of July 15 Elizabethae reciting That John his Father by Indenture the Thirtieth of July 35 H. 8. had demised to Robert Rochester the said Farm or Mannor of Blacon Habendum for Thirty years from the end or determination of the lease made to Anne Seaton the Tenth of February 27 H. 8. which is a false recital for the lease to Rochester was to commence from the end or determination of a lease made to Anne Seaton that is recited to be made the Tenth of February 28 H. 8. and that afterwards the said John Earl of Oxford had granted by Indenture Dated the Six and twentieth of March 35 H. 8. reciting the lease to Anne Seaton the Tenth of February 27 H. 8. to Hamlett Freer the Reversion of the said Mannor of Blacon Habendum the said Mannor and Premisses from such time as the same shall revert or come to the possession of the said Earl or his Heirs by Surrender Forfeiture or otherwise for Sixty years for so is the Case put in one part of the Report but in another part of it it seems to be That the Demise to Freer was when it should revert after the Expiration Surrender or Forfeiture omitting the words or otherwise of the Lease made to Anne Seaton which will nothing vary the Case The said Edward Earl of Oxford 〈…〉 demised the said Mannor or Farm of Blacon to the said Geoffry Morley Habendum from the end of the said Leases for Fifty years The Question was Whether any of these leases made either to Hamlett Freer or Morley be good or were in esse at the time of the lease made by Sir Randolph Crew to the Plaintiff Sir Randolph Crew claiming the Inheritance from the Earl of Oxford and Sir William Norris the Leases from Freer and Morley and under him the Defendant And Iudgment was given in Chester for the Plaintiff And upon a Writ of Error of this Iudgment brought in the Kings Bench wherein the Error assign'd was The giving of Iudgment for the Plaintiff After several Arguments at Barr and at the Bench Seriatim by the Iustices it was unanimously agreed The Iudgment in Chester for the Plaintiff should be affirmed And that neither the Lease to Freer nor that to Morley was good to avoid the Plaintiffs Title As for the lease to Freer it being a grant of a Reversion nominally and by Agreement of Parties there being no Reversion because no lease at the time of the Grant was in esse either of Seatons or Rochesters upon a point of Rasure in Rochester's Demise found in the Case and for that Land in possession could not pass by the name of a Reversion though by the name of Land a Reversion may pass for he who will grant Land in possession cannot be thought not to grant the same if only in Reversion L. Chandoes Case 6. Rep. according to the doctrine of Throgmorton's Case in the Commentaries And for that Morley's lease was to commence after the lease granted to Rochester which was to commence after that granted to Seaton the Tenth of February 27 H. 8. whereas no such lease was granted to Rochester but a lease to commence after one granted to Seaton in 28 H. 8. It was resolv'd None of those leases were in esse and that Morley's lease commenced therefore presently The words of the Resolution are these as to Morley's Lease It was Resolv'd that Morley's Lease was not in esse for that misrecites the former Leases and so hath the same Rule as the former where it recites Leases and there be none such Therefore it shall begin from the Date which being in the Fifteenth of the Queen for Fifty years ended 1623. which was before the Lease made to the Plaintiff for these Reasons Judgment was affirmed The same Conclusions are deducible from this lease to Morley as from the former to Rochester and therefore I will not repeat them But here are two Judgments in the very point of our Case and affirmed in a Writ of Error unanimously in the Kings Bench. And where it is thought material that the Jury have found a half years Rent to have been behind at Michaelmas 1643. and thence inferr'd the Jury have found the leases by which that Rent was ascertain'd namely the leases of 29 H. 8. and 1 E. 6. Surely if a lease be for a term of years to commence from the end of a former term and for such Rent as is reserv'd upon such former Demise that never was as no term can commence from the end of another which never was so no Rent can be behind which cannot appear but by a Demise which was never made that is which is never found to be made Add further That if the Iury had found the Leases of 29 H. 8. and 1 E. 6. to have been made as is mentioned in the lease of 1 Mar. that had not been a sufficient finding of them For a Deed is not found at all nor a last Will when only the Jury find but part of the Deed or Will for the Court cannot Iudge but upon the whole and not upon part It it be found in Assise the Defendant was Tenant and disseis'd the Plaintiff nisi verba contenta in ultima voluntate W. M. give a lawful Estate from W. M. to R. M. and find the words contain'd in the Will but not the Will at large the Court cannot judge upon this Verdict 38. 39 El. B.R. West and Mounsons C. Rolls 696. Tit. Tryal whose Office it is to judge upon the whole Will which is not found 38 39 El. B. R. West and Mounsons Case Rolls 696. Title Tryal So for the same reason finding but part of a recited Deed and not the whole is as if no part were found and it appears by the Deed of 1 Mariae that both Deeds of 29 H. 8. and 1 E. 6. are
it is said The Rent was granted out of the Twenty Acres being the Locus in quo by the Name of all the Grantors Lands and Hereditaments in King's Norton and that a per nomen in that Case is not good The Case of Grey and Chapman was urg'd 43 Eliz. Cro. f. 822. where by Indenture S. one Prudence Cousin let a House and Twenty Acres of Land by the Name of all her Tenements in S. But it was not alledg'd in what Vill the Acres were The Court was of Opinion in Arrest of Judgment that the naming of the Vill in the per nomen was not material Another Case to the same purpose was urg'd of Gay against Cay where a Grant in possession was pleaded 41 Eliz. Cro. f. 662. pl. 10. and not as in Reversion And upon view of the Record the Grantor had granted Tenementa praedicta per nomen of a Mesuage which A. P. held for life where the per nomen was adjudg'd not to make good the Grant The Court is of Opinion notwithstanding these Cases That in the present Case the per nomen is well enough because it is alledg'd the Grantor was seis'd of Two hundred Acres of Land in Kings Norton whereof the locus in quo being Twenty Acres is parcel By reason whereof the Rent being granted out of every parcel of the Two hundred Acres it is well enough to say it was granted out of the Twenty Acres per nomen of all his Lands in Kings Norton because the Twenty Acres are alledg'd to be parcel of all his Lands there being Two hundred Acres But in Chapman's Case It is not alledg'd that the Twenty Acres of Land demis'd were parcel of all the Tenements in S. per nomen of which the Twenty Acres were to pass As for the second Case of Gay it was not possible that Lands granted as in possession should pass per nomen of Land that was in Reversion The second Exception is Because the Clause of Entry and Distress in the Deed upon Oyer of it differs from the Clause of Entry and Distress alledg'd in the Conizance For in the Conizance it is said It should be lawful to Enter and Distrain if the rent were unpaid and behind after any of the Feasts whereon it was due that is at any Feast that should first happen after the death of Anne or Thomas Greaves for the Rent did not commence before But by the Deed If the Rent were behind at any the Feasts the Entry and Distress is made to be lawful for it during the joynt Lives of Anne and Thomas Greaves the Uncle and during their joynt lives it could not be behind for it commenc'd not till one of them were dead Scarplus Handkinson 37 El. Cro. f. 420. words repugnant and sensless to be rejected So as the sense must run That if the Rent were behind it should be lawful to distrain during the joint Lives of Anne and Thomas Greaves which was before it could be behind for it could not be behind till the death of one of them Therefore those words during their joynt natural lives being insensible ought to be rejected For words of known signification but so placed in the Context of a Deed that they make it repugnant and sensless are to be rejected equally with words of no known signification Judgment pro Defendent The Chief Justice delivered the Opinion of the Court. Trin. 16 Car. II. C. B. Rot. 2487. But Adjudg'd Mich. 20 Car. II. Bedell versus Constable BY the Act of 12 Car. 2. cap. 24. It is among other things Enacted That where any person hath or shall have any Child or Children under the Age of One and twenty years and not married at the time of his death It shall and may be lawful to and for the Father of such Child or Children whether born at the time of the decease of the Father or at that time in ventre sa mere or whether such Father be within the Age of One and twenty years or of full Age by his Deed executed in his life time or by his last Will and Testament in writing in the presence of two or more credible Witnesses to dispose of the custody and tuition of such Child or Children for and during such time as he or they shall respectively remain under the Age of One and twenty years or any lesser time to any person or persons in possession or remainder other than Popish Recusants And such disposition of the Custody of such Child or Children made since the Four and twentieth of February 1645. or hereafter to be made shall be good and effectual against all and every person or persons claiming the custody or tuition of such Child or Children as Guardian in Soccage or otherwise And such person or persons to whom the custody of such Child or Children hath been or shall be so disposed or devised as aforesaid shall and may maintain an Action of Ravishment of Ward or Trespass against any person or persons which shall wrongfully take away or detain such Child or Children for the Recovery of such Child or Children and shall and may recover Damages for the same in the said Action for the use and benefit of such Child or Children And such person or persons to whom the custody of such Child or Children hath been or shall be so disposed or devised shall and may take into his or their custody to the use of such Child or Children the profits of all Lands Tenements and Hereditaments of such Child or Children and also the custody tuition and management of the Goods Chattels and personal Estate of such Child or Children till their respective Age of One and twenty years or any lesser time according to such Disposition aforesaid and may bring such Action or Actions in relation thereto as by Law a Guardian in Common Soccage might do By the Will is devised in these words I do bequeath my son Thomas to my Brother Robert Towray of Rickhall to be his Tutor during his Minority Before this Act Tenant in Soccage of Age might have dispos'd his Land by Deed or last Will in trust for his Heir but not the Custody and Tuition of his Heir for the Law gave that to the next of Kinn to whom the Land could not descend But Tenant in Soccage under Age could not dispose the Custody of his Heir nor devise or demise his Land in trust for him in any manner Now by this Statute he may grant the Custody of his Heir but cannot devise or demise his Land in trust for him for any time directly for if he should the devise or demise were as before the Statute as I conceive which is most observable in this Case I say directly he cannot but by a mean and obliquely he may for nominating who shall have the Custody and for what time by a consequent the Land follows as an incident given by the Law to attend the custody not as an Interest devis'd or demis'd
therefore he shall not assign it A Guardian in Soccage cannot transferr his Custody because it is a personal Trust but the Trust of this special Guardian is more personal therefore that he shall transferr it concludes strangely The Office of a Philizer is an Office of personal Trust to do the business of the Court and not assignable 28 H. 8. f. 7. Dyer no Execution can be upon it Sir George Reynels Case an Office of Trust and Confidence cannot be granted for years because then it might go to persons that is to Executors or Administrators never trusted or confided in So is Littleton expresly That all Offices of Trust Sect. 379. as Steward Constable Bedlary Bailiffwick must be personally occupied unless they be granted to be occupied by a Deputy and are not assignable And a more near or tenderer Trust cannot be than the Custody and Education of a mans Child and Heir and preservation of his Estate It may be said That in these Cases the Law doth particularly appoint the Guardians and therefore no others can be But in the Case at Barr the Father appoints the person not the Law It is true there is a difference in the Cases but not to make the Trust more assignable in the one Case than the other Where the Law appoints who shall be trusted the Trust cannot be refused as in the several Guardians before mentioned But where the Person names the Trustee the Trust may be refused but once accepted it cannot be transfer'd to others more than where the Law names the Trustee An Executor hath a private office of Trust for we speak not of publique and is named by the Testator not by the Law therefore he may refuse but cannot assign his Executorship But it is true an Executor may make an Executor due Circumstances observed who shall discharge the first Testators Trust but the reason is that after Debts paid and Legacies the Surplus of the Goods belongs to the Executor proprio jure An Administrator hath a private Office of Trust he cannot assign nor leave it to his Executor he is not named by the Intestate but by the Law in part for him but not peremptorily he may not claim it if he will because it must pass through the Ordinary A mans Bailiff or Receiver are Offices of personal Trust and not assignable so is the Office of every Servant An Arbitrator or one authorized to sell a mans Land to give Livery or receive it cannot assign it is a personal Confidence 1. A Custody is not in its nature Testamentary it cannot pay Debts nor Legacies nor be distributed as Alms. 2. It is not accomptable for to the Ordinary as Intestates Goods are 3. The Heir ought to have a Guardian without interruption but an Executor may be long before he proves the Will and may at length refuse An Administration long before it be granted and after may be suspended by Appeal and in these times the Ward hath no certain Guardian responsal for his Estate or Person Shopland's C. 3 Jac. Cr. f. 99. And where it may be said That these are naked Authorities and the persons have no Interest but a Guardian hath Interest he may lett and sett the Wards Land during minority Avow in his own name Grant Copy-hold Estates and the like It is an Interest conjoyned with his trust for the Ward I speak not here of equitable trusts without which Interest he could not discharge the trust but it must be an Interest for himself which is transferrable or shall go to his Executor All Executors and Administrators have Interest and Property necessary to their Trusts for they may sell the Goods or Leases of the Testator or Intestate without which they could not execute the Trust A Monk made an Executor might do the like who in his own right could have no Interest or Property But such Interest proves not that the Executors or Administrators may assign their Trust Guardian in Soccage may demise his Guardianship and grant over his Estate N. Br. f. 145. b. Letter H. quod nota or that it shall go to their Executors for it is agreed in that Case of Shopland That such Interest as a Guardian in Soccage hath shall not go to his Executor but is annexed to his Person and therefore not transferrable So as I take the sense of the Act collected in short to be Whereas all Tenures are now Soccage and the next of kinn to whom the Land cannot descend is Guardian until the Heirs Age of Fourteen yet the Father if he will may henceforth nominate the Guardian to his Heir and for any time until the Heirs Age of One and twenty and such Guardian shall have like remedy for the Ward as the Guardian in Soccage by the Common Law hath Another Exposition of this Act hath been offer'd as if the Father did devise his Land by way of Lease during the minority of the Heir to him to whom he gave the Custody in Trust for the Heir and so the Land was assignable over and went to the Executors but follow'd with the Trust 1. This is a forc'd Exposition to carry the Custody to any Stranger to the Father or to the Child or to any that may inherit the Land contrary to the ancient and excellent policy of the Law 2. By such an Exposition the Heir should have no Accompt of such a Lessee as he may against a Guardian but must sue in equity for this Statute gives Actions such as Guardians might have to him who hath the Custody but gives none against him 3. If such Lessee should give the Heirs marriage Coke Litt. f. 896. the Heir hath no Remedy but the Guardian in Soccage shall accompt for what the marriage was worth Stat. Malbridge c. 17. The Statute only saith That such person nominated by the Father may take to his Custody the Profits of all Lands Tenements and Hereditaments of such Child and Children and also the Custody Tuition and Management of the Goods Chattels and personal Estate of such Child or Children And may bring such Action in relation thereto as a Guardian in Soccage might do None of which words will charge him with the value of the Marriage if he had nothing for it Na. Br. f. 139. b Lett. H. 4. If the Heir be in custody of such a Lessee and be Guardian by nearness of kinn to another Infant The Guardian of the Heir by Law is Guardian to both but such a Lessee hath no pretence to be Guardian of the second Infant by any word of the Act For he is neither an Hereditament or Goods or Chattels of the first Infant As to the second part If the Father being of Age should devise his Land to J. S. during the Minority of his Son and Heir in trust for his Heir and for his Maintenance and Education until he be of Age. This is no devising of the Custody within this Statute for he might have done this before
not the Land devis'd to him when the son and the two daughters dye without Issue of their respective bodies by way of Remainder which cannot be but by way of Executory devise which well may be 5. That by such Executory devise no perpetuity is consequent to it or if it were such a perpetuity is no way repugnant or contrary to Law To manifest the difference taken between an implication in a Will that is necessary and implication that is only possible the first Case I shall cite is that known Case 13 H. 7. which I shall exactly put as it is in the Book at large 13 H. 7. f. 17. Br. Devise pl. 52. A man devis'd his Goods to his wife and that after the decease of his wife his son and heir shall have the House where his Goods are The son shall not have the House during the wives life for though it be not expresly devis'd to the wife yet his intent appears the son shall not have it during her life and therefore it is a good devise to the wife for life by implication and the Devisors intent Quod omnes Justitiarii concesserunt Here I observe 1. That this was a devise of the House to the wife by necessary implication for it appears by the Will that the Testators son and heir was not to have it until after the death of the wife and then it must either be devis'd to the wife for life by necessary implication or none was to have it during the wives life which could not be 2. I observe upon this Case That though the Goods were by particular devise given to the wife and expresly that was no hindrance to the wives having the House devis'd to her also by her husband by implication necessary which I the rather note because men of great name have conceiv'd That where the devisee takes any thing by express devise of the Testator such devisee shall not have any other thing by that Will devis'd only by implication Which difference if it were according to Law it makes clearly against the Plaintiff because his Lessor being one of the Daughters of the Testator had devis'd to her expresly for a Portion and therefore she should not have any Estate in the Land by the same Will by a Devise by Implication as is pretended But the truth is that is a vain difference that hath been taken by many as I shall anon evince and therefore I shall not insist upon any Aid from it to my conclusion 3. I note that this Devise being before the Statute of 32 H. 8. of Wills the House devis'd must be conceiv'd devisable by Custome at the Common Law Before I proceed further I must take notice that Brook in abridging the Case of 13 H. 7. in the same numero saith Devise Br. n. 52. It was agreed tempore H. 8. per omnes That if a man will that J. S. shall have his Land in Dale after the death of his wife the wife shall have the House for her life by his apparent intent I note first That this Case is imperfectly put in Brook for it mentions a devise of the Land in Dale to J. S. after the death of his wife and then concludes that the wife shall have the House for her life by his apparent intent whereas no mention is made of a House but of the Land in Dale in the devise And this Case seems to be only a memory of another Case Br. Devise 29 H. 8. n. 48. not abridg'd by Brook out of any other Year-book but reported in his Abridgment in the Title Devise as a Case happened in 29 H. 8. which is That if a man will that J. S. shall have his Land after the death of his wife and dies the wife of the Devisor shall have those Lands for term of her life by those words ratione intentionis voluntatis Which Cases being in truth but one and the same Case seem to go further than the Case of 13 H. 7. for there as I observ'd before the wife was to take by necessary implication because the Heir was excluded expresly by the Will during the life of the wife But by this Case in Br. Title Devise n. 48. 52. there is no excluding of the Heir and yet it is said the wife shall have the Land during her life by implication which is no necessary implication as in the Case of 13 H. 7. but only a possible implication and seems to cross that difference I have taken before But this Case of Br. hath many times been denied to be Law and several Iudgments have been given against it I shall give you some of them to justifie the difference I have taken exactly as I shall press the Cases Trinity 3 E. 6. A man seis'd of a Mannor part in Demesne 3 E. 6. Moore Rep. f. 7. n. 24. and part in Services devis'd all the demesne Lands expresly to his wife during her life and devis'd to her also all the Services and chief Rents for Fifteen years and then devis'd the whole Mannor to a stranger after the death of his wife It was resolved by all the Justices That the last devise should not take effect for any part of the Mannor but after the wives death but yet the wife should not have the whole Mannor by implication during her life but should have only the demesnes for her life and the Rent and Services for Fifteen years and that after the Fifteen years ended the Heir should have the Rents and Services as long as the wife liv'd Here being no necessary Implication that the wife should have all the Mannor during her life with an exclusion of the Heir she had no more than was explicity given her by the Will viz. the Demesnes for life and the Rents and Services for Fifteen years but after the Fifteen years the Heir had the Rents and Services for it could be no more at most but a possible Implication that the wife should have the whole Mannor during her life But with a small variance of this Case if the demesnes had been devis'd to the wife for life and the Services and Rents for Fifteen years and the whole Mannor after the wives life to J. S. and that after the wives life and the life of J. S. his Heir should have had the Demesnes and Services and Rents in that Case it had been exactly the same with the Case of 13 H. 7. because the Devisors intent had been then apparent that the Son was not to have the Mannor or any part until the wife and stranger were both dead and as it was adjudg'd the stranger had nothing in the Mannor until the wifes death therefore in that case by necessary implication the wife must have had both Demesnes and Services during her life notwithstanding the explicit devise to her of the Rents and Services for Fifteen years otherwise none should have had the Rents and Services after the Fifteen years
The first is Haynsworths and Prettyes Case Where a man seis'd of Land in Soccage having Issue two Sons and a Daughter devis'd to his youngest Son and Daughter Twenty pounds apiece to be paid by his eldest Son and devis'd his Lands to his eldest Son and his Heirs upon Condition if he paid not those Legacies that his Land should be to his second Son and Daughter and their Heirs The eldest Son fail'd of payment After Argument upon a Special Verdict It was resolv'd by the Court clearly That the second Son and Daughter should have the Land 1. For that the devise to his Son and his Heir in Fee Hill 41. El. Cr. 833. a. being no other then what the Law gave him was void 2. That it was a future devise to the second Son and Daughter upon the contingent of the eldest Sons default of payment 3. That it was no more in effect than if he had devis'd That if his eldest Son did not pay all Legacies that his land should be to the Legatories and there was no doubt in that Case but the land in default of payment should vest in them Which Case in the reason of law differs not from the present Case where the land is devis'd by devise future and executory to the Nephew upon a contingent to happen by the Testators Son and Daughters having no issue 18 Jac. Pell Browns C. Cro. f. 590. The second Case is that of Pell and Brown the Father being seis'd of certain land having Issue William his eldest Son Thomas and Richard Brown devis'd the land to Thomas and his Heirs for ever and if Thomas died without Issue living William then William should have the lands to him his Heirs and Assigns 1. This was adjudg'd an Estate in Fee-simple in Thomas 2. That William by way of Executory devise had an Estate in Fee-simple in possibility if Thomas died without Issue before him And it being once clear That the Estate of Thomas was a Fee-simple determinable upon a contingent and not an Estate tayl and so in the present case it being clear'd that George the Testators Son had the land descended to him in Fee from the Testator and took no Estate tayl expresly or by implication from the Will it will not be material whether the Contingent which shall determine that Fee-simple proceeds from the person which hath such determinable Fee or from another or partly from him and partly from another as in Haynsworth's Case the Son determined his Fee-simple by not paying the Legacies in Pell and Brown's Case Thomas his Fee-simple determined by his dying without Issue living William the Fee-simple vested in George the Son by descent determines when he and his two Sisters dye without Issue and upon such determination in every of these Cases the future and executory devise must take effect But the great Objection is That if this should be an executory devise to the Nephew upon the contingent of George the Son and both his Sisters dying without Issue It will be dangerous to introduce a new way of perpetuity for if a man have several Children and shall permit his Estate to descend or by his Will devise it to his Heir so as he may therein have an unquestionable Fee-simple which is the same with permitting it to descend he may then devise it futurely when all his Children shall dye without Issue of their bodies to J. S. and his Heirs as long as A. B. and C. strangers shall have any Heirs of their bodies living and then to a third person by like future devise For if he should devise it futurely to J. S. and his Heirs as long as J. S. had any Heirs of his body it were a clear Estate tayl in J. S. upon which no future devise could be but it would be a Remainder to be docked This Objection was in some measure made by Doderidge in Pell and Browns Case and the Iudges said there was no danger Vid. Stiles Rep. Gay Gaps Case 258 275. because the Estate in Fee of Thomas did not determine by his dying without Heir of his body generally but by dying without Issue living William for if the land had been given to Thomas and his Heirs for ever and if he died without Heirs of his body then to William and his Heirs Thomas his Estate had been judg'd an Estate tayl with the Remainder to William and not a Fee upon which no future or executory devise can be So was it adjudg'd in Foy and Hinds Case 22 Jac. Cr. f. 695. 6. and anciently 37 Ass p. 18. 5. H. 5. f. 6. and to be within the reason of Mildmay and Corbets Case of Perpetuities But in Pell and Browns Case the Iudges said it was more dangerous to destroy future devises than to admit of such Perpetuities as could follow from them any way by determinable Fee-simples which is true for a Fee simple determinable upon a contingent is a Fee-simple to all intents but not so durable as absolute Fee-simples And all Fee-simples are unequally durable for one will escheat sooner than another by the failer of Heirs An Estate of Fee-simple will determine in a Bastard with his life if he want Issue An Estate to a man and his Heirs as long as John Stiles hath any Heir which is no absolute Fee-simple is doubtless as durable as the Estate in Fee which John Stiles hath to him and his Heirs which is an absolute Fee-simple Nor do I know any Law simply against a Perpetuity but against Intails of Perpetuity for every Fee-simple is a perpetuity but in the accident of Alienation and Alienation is an incident to a Fee-simple determinable upon a contingent as to any more absolute or more perdurable Fee-simple The Chief Justice Justice Archer and Justice Wylde for the Defendant Justice Tyrrell for the Plaintiff Judgment for the Defendant Hill 21 22 Car. II. C. B. Craw versus Ramsey Philip Craw is Plaintiff and John Ramsey Defendant In an Action of Trespass and Ejectment THE Plaintiff declares That Lionel Tolmach Baronet and Humphrey Weld Esquire January the Twentieth the Sixteenth of the King demis'd to the Plaintiff the Mannor of Kingston with the appurtenances in the County of Surrey one Messuage two Barns one Dove-house two Gardens eighty Acres of Land and ten Acres of Meadow with the appurtenances in Kingston aforesaid and other places and also the Rectory of Kingston aforesaid To have and to hold to the said Philip and his Assignes from the Feast of the Nativity last past for five years next ensuing By virtue whereof he entred into the Premisses and was possessed until the Defendant the said Twentieth of January in the Sixteenth year of the King entred upon him and Ejected him with force to his Damage of Forty pounds To this the Defendant pleads he is not Culpable Vpon a Special Verdict it appear'd That Robert Ramsey Alien Antenatus had Issue 1. Robert 2. Nicholas 3. John 4. George Antenatos
the first Cestuy que use nor his Heir the last Cestuy que use in the Case could nor can have any benefit of this warranty because William the first Cestuy que use nor his Heir could not nor can warrant to himself but as to William and his Heirs the warranty is clearly extinct The Argument And as to the first Question I conceive the Law to be that the warranty of William the Tenant in tayl descending upon Elizabeth and Sarah the Demandants his Heirs at Law is no barr in the Formedon in Reverter brought by them as Heirs to William their Grandfather the Donor though it be a Collateral warranty I know it is the perswasion of many professing the Law That by the Statute of Westminster the second De donis conditionalibus the Lineal warranty of Tenant in tayl shall be no barr in a Formedon in the Descender but that the Collateral warranty of Tenant in tayl is at large as at the Common Law unrestrain'd by that Statute Sir Edward Coke in his Comment upon Section 712. Sect. 712. of Littleton A lineal warranty doth not bind the right of an Estate tayl for that it is restrain'd by the Statute de donis Conditionalibus And immediately follows A lineal warranty and assets is a barr of the right in tayl and is not restrain'd But the reason why the warranty of Tenant in tayl with Assets binds the right of the Estate tayl is in no respect from the Statute de donis but is by the Equity of the Statute of Glocester by which the warranty of Tenant by the Courtesie barrs not the Heir for the Lands of his Mother if the Father leave not Assets to descend in recompence And therefore it was conceived after the Statute de donis was made That if Tenant in tayl left Assets to descend in Fee-simple his warranty should bind the right of the Issue in tayl by the equity of that preceding Statute of Glocester Whereas if the Statute of Glocester had not been the Lineal warranty of Tenant in tayl had no more bound the right of the Estate tayl by the Statute de donis with Assets descending than it doth without Assets For the better clearing therefore of the Law in the Case in question I shall preparatorily assert some few things and clear what I so assert without which the truth of the Conclusion I hold will not appear so naked to the Hearers as it should Ass 1. The first is That at the Common Law the distinction of a lineal and collateral warranty was useless and unknown For though what we now call a Collateral and a lineal warranty might be in speculation and notionable at the Common Law as at this day a Male warranty or a Female warranty may be yet as to any effect in Law there was no difference between a Lineal warranty and a Collateral but the warranty of the Ancestor descending upon the Heir be it the one or the other did equally bind And this as it is evident in it self so is it by Littleton whose words are Litt. Sect. 697. Before the Statute of Glocester all warranties which descended to them who are Heirs to those who made the warranties were barrs to the same Heirs to demand any Lands or Tenements against the warranties except the warranties which commence by disseisin Therefore if a Question had been at the Common Law only Whether in some particular Case the Ancestors warranty had bound the Heir It had been a sensless Answer to say it did or did not because the warranty was Lineal or Collateral for those warranties were not defined at the Common Law nor of use to be defined But the proper Answer had been That the warranty did bind the Heir because it commenc'd not by disseisin for every warranty of the Ancestor but such descending upon the Heir did bind him So if after the Statute of Glocester Tenant by the Courtesie had aliened with warranty had it been demanded if the Heir were barr'd by that warranty it had been an absurd Answer That he was not because it was a Collateral warranty of his Father without Assets For all Collateral warranties of the Father were not restrained but his warranty in that Case which could be no other than Collateral was restrained by the Statute Therefore The adequate Answer had been That the Fathers warranty bound not in that Case without Assets because the Statute of Glocester had so restrained it My second Assertion is Ass 2. That the Statute de Donis restrains not the warranty of Tenant in tayl from barring him in the Remainder in tayl by his warranty descending upon him 1. For that the mischief complained of and remedied by the Statute is That in omnibus praedictis casibus therein recited post prolem suscitatam habuerunt illi quibus Tenementum sic conditionaliter datum fuit hucusque potestatem alienandi Tenementum sic datum exhaeredandi exitum eorum contra voluntatem Donatoris But the warranty of the Donee in tayl descending upon him in the Remainder who regularly claims by purchase from the Donor and not by descent from the Donee in tayl could be no disinheriting of the Issue of the Donee claiming by descent from him against which disinheriting only the Statute provides which is evident by the Writ of Formedon in the Descender framed by the Statute in behalf of such Issue of the Donee whom the Statute intends 2. The Statute did not provide against Inconveniences or Mischiefs which were not at the time of making the Statute but against those which were But at the making of it there could be no Remainder in tayl because all Estates which are Estates tayl since the Statute were Fee-simples Conditional before the Statute upon which a Remainder could not be limited So is Sir Edward Coke in his Comment upon the Statute de Donis The Formedon in Reverter did lye at Common Law Cok. part 2. f. 336. but not a Formedon in Remainder upon an Estate tayl because it was a Fee-simple Conditional whereupon no Remainder could be limited at Common Law but after the Statute it may be limited upon an Estate tayl in respect of the Division of the Estates 3. The Statute formed a Writ of Formedon in the Descender for the new Estate tayl created by the Statute and mentions a Formedon in the Reverter as already known in the Chancery for the Donor for whom the Statute likewise intended to provide but formed or mentioned none for the Remainder in tayl And the Cases are common in Littleton Litt. Sect. 716 718 719. and in many other Books that the warranty of Donee in tayl is Collateral to him in the Remainder in tayl and binds as at the Common Law But thence to conclude That therefore the warranty of the Donee in tayl shall barr the Donor of his Reversion because it is a Collateral warranty also is a gross Non sequitur for the Donees warranty doth not therefore barr
then Vous saves bien que de ley cestuy que demand per Formedon in Reverter ne serra barr per le garranty cestuy à que les Tenements fuerunt done in tayl sil ne eyt per descent tout soit il heire à luy le quel Roy ad per descent ou non ne poiomus enquire And on this Case Sir Edward Coke makes an Observation That the King was not bound by a Collateral warranty for the Reversion of an Estate in tayl no more is any other Donor by that Case So as Sir William Herle's Iudgment who was then Chief Justice of the Common Pleas in three several years and several Cases was directly contrary to what Finchden 41 E. 3. said it was upon Report Besides the contrary of what my Brother Ellis urg'd from this Case may be thus inferr'd out of it This Case admits that the Statute restrains the warranty of the Donee from barring some Donor viz. a Donor stranger in blood as was said for it restrains Alienation without warranty against all Donors but the Statute did not restrain the Donees warranty from barring such a Donor for his warranty could never descend upon a stranger and the Statute did not restrain a thing which could not be Therefore ex concesso the Statute restrained the Donees warranty from barring the Donor of blood to the Donee 7 E. 3. 34. p. 44. 5. The fifth Objection was a Case 7 E. 3. that Tenant in tayl made a Feoffment in Fee and died issuless and the Feoffee rebutted the Donor by the warranty This Case rightly understood is not to the purpose for the Donor was not rebutted by the warranty of Tenant in tayl which is the present question but by the Donors own warranty The Case was That A. gave Land to W. and E. his wife Habendum praedictis W. E. haeredibus inter se legitime procreatis and warranted those Tenements to the said W. E. haeredibus eorum seu assignatis The Heir in tayl made a Feoffment in Fee and died leaving no Issue inheritable and the Donor was rebutted in his Formedon in Reverter by his own warranty having warranted to the Donee his Heirs and Assigns and the Feoffee claimed as Assignee And it was adjudg'd against the Donor after in the same year as appears 46 E. 3. f. 4. b. and there admitted good Law 46 E. 3. f. 4. b. But Sir Edward Coke denies this Case to be Law now saying That the warranty determined with the Estate tayl to which it was first annexed and doubtless it did so as to Voucher but whether as to Rebutter of the Donor the party rebutting having the Land though another Estate in it and deriving the warranty to himself as Assignee is not clear 6. A sixt Objection was made from a Case 27 E. 3. f. 83. of a Formedon in Reverter brought 27 E. 3. f. 83. pl. 42. and the Deed of Tenant in tayl Ancestor to the Demandant shewed forth but the Book mentions no warranty but it is like it was a Deed with warranty and the Plaintiff durst not demurr but traversed the Deed as any would avoid demurring upon the validity of an Ancestor's Deed when he was secure there was no such Deed of the Ancestor 7. 4 E. 3. f. 56. pl. 58. The last Objection was a Case 4 E. 3. f. 56. p. 58. where Tenant in tayl made a Feoffment with warranty and the warranty descended upon him in the Remainder in tayl which barr'd him which is a Case agreed as before For the Statute of Westminster the second provides not at all for hâ—m in Remainder but as to him Tenant in tayls warranty is left as at Common Law In 4 E. 3. a Formedon in the Descender was brought by the Issue in tayl and the Release of his elder Brother 4 E. 3. f. 28. pl. 57. with warranty was pleaded by the Tenant Stoner who gave the Rule in the Case Le statute restraynes le power del Issue in tayl to alien in prejudice of him in the Reversion by express words and à Fortiori the power of the Issue in tayl is restrain'd to alien in prejudice of the Issue in tayl Whereupon the Tenant was rul'd to answer and pleaded Assets descended Here it was admitted 10 E. 3. f. 14 pl. 53. the Issue in tayl could not alien with warranty in prejudice of the Reversioner And in 10 E. 3. soon after a Formedon in Reverter being brought and the warranty of Tenant in tayl pleaded in barr Scot alledg'd the restraint of the Statute as well for the Reversioner as for those claiming by descent in tayl The same Stoner demanding if the Ancestor's Deed was acknowledg'd and answered it was His Rule was That the Iudgment must be the same for the Reversioner as for the Issue in these words Ore est tout sur un Judgment which can have no other meaning considering Scot's words immediately before that the Law was the same for the Reversioner as for the Issue in tayl and Stoner's Opinion in the Case before to the same effect 4 E. 3. Objections from Modern Reports Moore f. 96. pl. 239. In Moore 's Reports this Case is A man seis'd of Land having Issue two Sons devis'd it to his youngest Son in tayl and the eldest Son died leaving Issue a Son the youngest aliened in Fee with warranty and died without Issue the Son of the eldest being within age If this Collateral warranty shall bind the Son within age without Assets notwithstanding the Statute of Westminster the second was the question And the Opinions of Plowden Bromley Solicitor Manwood and Lovelace Serjeants and of the Lord Dyer and Catlin Chief Iustice were clear That it is a Collateral warranty and without Assets did barr notwithstanding his Nonage for that his Entry was taken away And this was the Case of one Evans 12 13 of the Queen as it was reported to me This Opinion makes against me I confess but give it this Answer 1. This Case is not reported by Sir Francis Moore but reported to him non constat in what manner nor by whom 2. It was no Judicial Opinion for Plowden Bromley Solicitor two Serjeants Manwood and Lovelace are named for it as well as Dyer and Catlin who were then Chief Iustices of the several Courts which proves the Opinion not only extra-judicial but not given in any Court 3. The motive of their Opinion was because the warranty was Collateral which is no true reason of the binding or not of any warranty 4. An extra-judicial Opinion given in or out of Court is no more than the Prolatum or saying of him who gives it nor can be taken for his Opinion unless every thing spoken at pleasure must pass as the speakers Opinion 5. An Opinion given in Court if not necessary to the Judgment given of Record but that it might have been as well given if no such or a contrary Opinion had
been breach'd is no Judicial Opinion nor more than a gratis dictum But an Opinion though Erroneous concluding to the Iudgment is a Judicial Opinion because delivered under the Sanction of the Judges Oath upon deliberation which assures it is or was when delivered the Opinion of the Deliverer Yet if a Court give Judgment judicially another Court is not bound to give like Judgment unless it think that Judgment first given was according to Law For any Court may err else Errors in Judgment would not be admitted nor a Reversal of them Therefore if a Judge conceives a Judgment given in another Court to be erroneous he being sworn to judge according to Law that is in his own conscience ought not to give the like Judgment for that were to wrong every man having a like cause because another was wrong'd before much less to follow extra-judicial Opinions unless he believes those Opinions are right The other Case is in Coke 5 Car. Salvin versus Clerk in Ejectment upon a special Verdict Alexander Sidenham Tenant in tayl to him and the Heirs males of his body the Reversion to John his eldest Brother made a Lease for three Lives warranted by the Statute of 32 H. 8. c. 28. with warranty And after 16 Eliz. levies a Fine with warranty and proclamations to Taylor and dies without Issue male leaving Issue Elizabeth his Daughter Mother to the Plaintiffs Lessor In 18 Eliz. the Lease for Lives expir'd In 30 Eliz. John the elder Brother died without Issue the said Elizabeth being his Neece and Heir The Defendant entred claiming by a Lease from Taylor and Points entred upon him as Heir to Elizabeth A question was mov'd upon a suppos'd Case and not in fact within the Case Whether if the Fine had not been with proclamation as it was and no Non-claim had been in the Case as there was this warranty should make a discontinuance in Fee and barr Elizabeth it not descending upon John after Alexanders death but upon Elizabeth who is now also John's Heir or determined by Alexander's death The Judges were of opinion as the Reporter saith That the warranty did barr Elizabeth and consequently her Heir because the Reversion was discontinued by the Estate for Lives and a new Fee thereby gain'd and the Reversion displac'd thereby and the warranty was annex'd to that new Fee But this Case is all false and mis-reported 1. For that it saith the Lease for Lives was a discontinuance of the Reversion thereby a new Fee gain'd to Tenant in tayl which he passed away by the Fine with warranty which could not be for in the Case it appears the Lease was warranted by the Stat. of 32 H. 8 and then it could make no discontinuance nor no new Fee of a Reversion could be gain'd 40 Eliz. Keen Copes C. 602. pl. 13. and then no Estate to which the warranty was annex'd and so was it resolv'd 40 El. Keen Copes Case 2. That Opinion was extra-judicial it being concerning a point not in the Case but suppos'd 3. That Case was resolv'd upon the point of Non-claim and not upon this of the warranty which was not a point in the Case 4. Some of the Judges therefore spoke not to that point as appears in the Case As to the second Question Admitting the warranty of Tenant in tayl doth bind the Donor and his Heirs yet in regard the Defendant Tenant in possession cannot derive the warranty to her self from the Feoffees as Assignee or otherwise Whether she may rebutt the Demandants or not by her possession only is the question and I conceive she may not as this Case is I shall begin with those Authorities that make and are most press'd against me which is the Authority of Sir Edward Coke in Lincoln Colledge Case in the third Report and from thence brought over to his Littleton f. 385. a. His words in Lincoln Colledge Case f. 63. a. are He which hath the possession of the Land shall rebutt the Demandant himself without shewing how he came to the possession of it for it sufficeth him to defend his possession and barr the Demandant and the Demandant cannot recover the Land against his own warranty And there he cites several Cases as making good this his Assertion In the same place he saith it is adjudg'd 38 E. 3. f. 26. That an Assignee shall rebutt by force of a warranty made to one and his Heirs only This Doctrine is transferred to his Littleton in these words If the warranty be made to a man and his heirs without this word Assignes yet the Assignee or any Tenant of the Land may rebutt And albeit no man shall vouch or have a Warrantia Chartae either as party Heir or Assignee but in privity of Estate yet any one that is in of another Estate be it by disseisin abatement intrusion usurpation or otherwise shall rebutt by force of the warranty as a thing annex'd to the Land which sometimes was doubted in our Books when as in the Cases aforesaid he that rebutteth claimeth under and not above the warranty I shall clearly agree no man shall vouch or have a warrantia Chartae who is not in in privity of Estate that is who hath not the same Estate as well as the same Land to which the warranty was annexed And the reason is evident because the Tenant must recover if the Land be not defended to him by the warranter such Estate as was first warranted and no other unless a Fee be granted with warranty only for the life of the Grantee or Grantor in which Case the Grantee upon voucher recovers a Fee though the warranty were but for life I shall likewise agree the Law to be as Sir Edward Coke saith in both places if his meaning be that the Tenant in possession when he is impleaded may rebutt the Demandant without shewing how he came to the possession which he then hath when impleaded be it by dissism abatement intrusion or any other tortious way And for the reason given in Lincoln Colledge Case That it sufficeth that the Tenant defend his possession But if his meaning be that the Tenant in possession need not shew that the warranty ever extended to him or that he hath any right to it then I must deny his Doctrine in Lincoln Colledge Case or in Littleton which is but the former there repeated to be Law For as it is not reasonable a man should recover that Land which he hath once warranted to me from me what title soever I have in it at the time when he impleads me So on the other side it is against reason I should warrant Land to one who never had any right in my warranty And the same reason is if a man will be warranted by Rebutter he should make it appear how the warranty extends to him as if he will be warranted by Voucher for the difference is no other than that in the case of Voucher a stranger impleads him in
case of Rebutter the Warranter himself impleads him and in a Voucher he must make his title appear to be warranted Ergo in a Rebutter But he needs not have like Estate in the Land upon a Rebutter as upon Voucher which is for the reason given of recovering in value And the only reason why the person who is to warrant impleading the Tenant of the Land shall not recover but be rebutted by the warranty is because if he should recover the Land the Tenant who is intitled to the warranty must recover in value from him again and therefore to avoid Circuit of Action he shall not recover but be rebutted and barr'd as is most reasonable I shall therefore first make it appear by all ancient Authorities That the Tenant in possession shall not rebutt the Demandant by the warranty without he first make it appear that the warranty did extend to him as Heir or Assignee To prove this are full in the point Hill 8 E. 3. f. 10. tit garranty pl. 48. New Edit f. 283. b. num 28 The Book of 8 E. 3. f. 10. of the Old Edition Hillary Term tit Garranty pl. 48. where upon a great Debate it was rul'd That the Tenant must shew how he was entitled to the warranty and how it extended to him and accordingly did so before his Plea was admitted by way of Rebutter 10. E. 3. f. 42. b. New Edit f. 391. b. num 42 Another Book full in the point is 10 E. 3. f. 42. b. of the Old Edition where in like manner the Tenant was forc'd to shew how the warranty extended to him upon Debate and it is remarkable in that Case That his shewing the Deed of warranty to him whose Assignee he was and the Deed of Assignment to himself was not enough but he was compell'd to plead orally as the manner then was That William who had the warranty assign'd to him by his Deed there shew'd forth and the reason given that the Deed of Assignment could not speak and make his Plea and was but Evidence of the truth of his Plea But in that very Case when it was replyed That he was not Tenant by the Assignment of William but by disseisin of the Plaintiff it was not permitted without traversing the Assignment of William For if he were once intitled to the warranty what Estate soever he had when impleaded he might rebutt though he could not vouch Which Case proves fully both my Positions That a man cannot rebutt without shewing how the warranty extends to him 2. That so doing he may whatever Seisin he hath at that time be it by Disseisin or Abatement c. or otherwise 22 Ass pl. 88. A third Case is when the Tenant being impleaded pleaded the warranty of the Demandants Father to one A. and bound him and his Heirs to warrant to A. his Heirs and Assigns and that he was Assignee of A. and demanded Judgment In that Case because he did not plead that he was Assignee of A. by Deed the Plea was disallow'd which since hath been thought not necessary but à fortiori if he had pleaded no Assignment at all from A. by Deed or without Deed to intitle him to the warranty his Plea had been necessarily disallowed My next Assertion is That the Tenant in possession setting forth how the warranty extends to him needs not set forth by what Estate or Title he is in possession To this I shall cite three Books full in the point 6 E. 3. f. 7. old Edit new Edit 6 E. 3. f. 187 Num. 16. 10 F. 3. f. 42. cited before old Book 45 E. 3. But in all these Cases it is to be noted That the Tenant rebutting though he was in possession of another Estate than that to which the warranty was annex'd yet constantly shew'd how the warranty was deriv'd to him which Sir Edward Coke observ'd not either in Lincoln Colledge Case or his Littleton but cites in Lincoln Colledge Case the Case of 45 E. 3. 45 E. 3. f. 18. and some others I shall mention after to shew a man may rebutt being in of another Estate than that which was warranted which is true but not without intitling himself to the warranty That the Law of rebutting stands upon the difference I have taken besides the Authorities urg'd will be evident for these Reasons As a warranty may be created so may it be determin'd or extinguish'd various ways 1. It may be releas'd as Littleton himself is Sect. 748. 2. It may be defeasanc'd as Sir Edward Coke upon that Sect. 748. 3. It may be lost by Attainder Sect. 745. 4. It may be extinguish'd by Re-feoffment of the warranter or his Heirs by the Garrantee or his Heir In all these Cases if the warranty be destroy'd it cannot be rebutted for there cannot be an accident to a thing which is not and rebutting is an accident incident to a warranty And therefore if the warranty have no being there can be no rebutter Why then admit A. warrants Land to B. and his Assigns during the life of B. after B. releases this warranty to A. and then Assigns to C. C. is impleaded by A. and pleads generally that A. warranted to B. for his life and that B. is still living if C. could rebutt A. by this manner of pleading without shewing when B. assigned to him so to derive the benefit of the warranty to himself A. could never have benefit of the Release of the warranty because it could not appear whether the warranty were releas'd before or after the assignment if before then the warranty is gone and cannot be rebutted but if after it may So if A. binds him and his Heirs to warrant to B. his Heirs and Assigns B. dyes his Heir releases the warranty and dies and then the Heir of the Heir assigns The Tenant is impleaded by A. If he may rebutt by his bare possession without shewing how the warranty extended to him A. can have no benefit of his Release before any assignment was made for the Demandant cannot be suppos'd to know the time of the assignment and consequently cannot know how to plead the Release until the time of the assignment appear which is most consonant in reason with the Authorities before urg'd Another reason is That constantly in elder times when the Tenant pleaded a warranty to rebutt he concluded his Plea that if he were impleaded by a stranger the Demandant was to warrant him which could not be without shewing how the warranty extended to him for he was not to warrant him if impleaded by a stranger because he had possession of the Land only Sir Edward Coke in Lincoln Colledge Case cites the Book of 38 E. 3. f. 26. as adjudg'd to prove that the bare possession of the Land is sufficient for the Tenant to rebutt for that the Assignee may rebutt a warranty made only to a man and his Heirs If that were so it were to his purpose but there is
recovered in Damages 101 Debt 1. Debts by simple contracts were the first Debts that ever were and are more noble than Actions on the Case upon which only damages are recoverable 101 2. Actions in the debet detinet are actions of property which is not in an action on the Case ibid. 3. Actions upon Bond or Deed made in Wales Ireland Normandy c. where to be tryed 413 4. Wheresoever the Debt grew due yet the Debtor is indebted to the Creditor in any place where he is as long as the Debt is unsatisfied 92 5. It lies not for a Solicitor for his soliciting Fees but for an Attorney it well lies and there shall be no ley Gager in it 99 Declaration See Pleading 1. The Plaintiff must recover by his own strength and not by the Defendants weakness 8 58 60 2. When the Plaintiff makes it appear to the Court that the Defendants Title is not good yet if the Plaintiff do not make out a good Title for himself he shall never have Judgment 60 3. The form of a Declaration in London according to their custome 93 4. The King may vary his Declaration but it must be done the first Term 65 5. In a Quare Impedit the Plaintiff must in his Declaration alledge a presentation in himself or those from whom he claims 7 57 Demand See Request 1. A Demand of Rent is not requisite upon a Limitation because Non-payment avoids it 32 2. But where there is a condition there must be a demand before entry ibid. 3. Where there are several Rents the demands must be several 72 4. If more Rent is demanded than is payable the demand is void ibid. Devastavit See Executors  Devise Devisor Devisee 1. The Law doth not in Conveyances of Estates admit Estates to pass by Implication regularly but in Devises they are allowed with due restrictions 261 262 c. 2. If an Estate given by Implication in a Will be to the disinheriting of the Heir at Law it is not good if such Implication be only constructive and possible but not a necessary Implication 262 263 267 268 3. The necessary Implication is that the Devisee must have the thing Devised or none else can have it 262 263 4. A. deviseth his Goods to his wife and after her decease his Son and Heir shall have the House where they are this is a good Devise of the House to the wife by Implication because the Heir at Law is excluded by it and then no person can claim it but the wife by Implication of the Devise 263 264. 5. A. having issue Thomas and Mary devises to Thomas and his Heirs for ever and for want of Heirs of Thomas to Mary and her Heirs This is an Estate tayl in Thomas 269 270 6. My will is if it happen my Son George Mary and Katherine my Daughters to dye without issue of their bodies lawfully begotten then all the Freehold Lands I am now seized of shall remain and be to my Nephew A. B. The construction and meaning of these words quid operatur by them 260 261 262 263 264 c. 7. If Land is devised to H. and his heirs as long as B. hath heirs of his body the remainder over such latter Devise will be good not as a Remainder but as an Executory Devise 270 8. My son shall have my Land to him and his heirs so long as any heirs of the body of A. shall be living and for want of such heirs I devise it to B. here B. shall take by future and Executory Devise 270 9. A Devise to the son and heir in Fee being no other than what the Law gave him is void 271 10. A Devise that if the son and heir pay not all the Legacies then the Land shall go to the Legatories upon default of payment this shall vest in the Legatories by Executory Devise 271 11. A. had issue W. T. and R. and devises to T. and his heirs for ever and if T. died without issue living W. that then R. should have the Land this is a good Fee in T. and R had a good Estate in possibility by Executory Devise upon the dying of T. without issue 272 12. An Executory Devise cannot be upon an Estate tayl 273 13. I bequeath my son Thomas to my Brother R to be his Tutor during his minority here the Land follows the custody and the Trust is not assignable over to any person 178 179 c. 14. A Devise of the Land during the minority of the Son and for his maintenance and education until he come of age is no devising of the Guardianship 184 Discent 1. Children inherit their Ancestors Estates without limit in the right ascending Line and are not inherited by them 244 2. In the collateral Lines of Uncle and Nephew the Uncle as well inherits the Nephew as the Nephew the Uncle 244 3. In the case of Aliens nothing interrupts the common course of Discents but Defectus Nationis 268 Disclaimer 1. In a Quare Impedit upon the Bishops Disclaimer there is a Judgment with a Cessat Executio quousque c. Dismes See Tythes  Disseisor 1. A Disseisor Tenant in possession may Rebut the Demandant without shewing how he came to the possession which he then hath but he must shew how the warranty extended to him 385 386 Dispensation See Title Statutes 14. 1. The Pope could formerly and the Arch-bishop now can dispense for a plurality 20 23 2. How many Benefices a Bishop may retain by Dispensation 25 3. A Dispensation for years and good 24 4. A Dispensation after the Consecration of a Bishop comes too late to prevent the Voidance 20 5. If a man hath a Benefice with cure and accepts another without a Dispensation or Qualification the first becomes void and the Patron may present 131 132 6. No Dispensation can be had for marrying within the Levitical Degrees 214 216 239 7. A Dispensation obtained doth jus dare and makes the thing prohibited lawful to be done by him who hath it 333 336 8. Freedom from punishment is a consequent of a Dispensation but not its effect 333 9. What penal Laws the King may dispense with and what not 334 335 336 c. 10. Where the Suit is only the Kings for the breach of a penal Law and which is not to the damage of a third person the King may dispense 334 336 339 340 11. Where the Offence wrongs none but the King he may dispense with it 344 12. Where the Suit is the Kings only for the benefit of a third person there he cannot dispense 334 336 339 340 13. Offences not to be dispensed with 342 14. A Dispensation to make lawful the taking from a man any thing which he may lawfully defend from being taken or lawfully punish it if it is taken must be void 341 15. Dispensations void against Acts of Parliament for maintaining Native Artificers 344 16. Where the exercise of a Trade is generally prohibited
108 Stagnum ibid. Appertaining 108 109 Reputation 109 Without any lett 121 Quiete pacifice ibid. Lawfully enjoy 124 Dedi Concessi 126 Wreck 168 Derelict ibid. Imported or brought 171 172 Per Nomen 174 175 Claim 188 193 Una cum 197 Nature what it is 221 224 Unnatural 221 222 224 Uncle 241 Communia 255 Remainder 269 in loco 279 Naturalization 280 Antenati Postnati 273 Neer of kin 306 307 308 309 310 Malum prohibitum malum in se 332 333 334 c. 358 359 Dispensation 333 336 349 Exemption 349 Commot 405 Exposition of Sentences 1. Words which are insensible ought to be rejected so also words of known signification so placed in the Deed that they make it repugnant and sensless are to be rejected equally with words of no signification 176 2. In things necessary there are no degrees of more or less necessary 344 3. What appears not to be must be taken in Law to be as if it were not 169 4. Lands usually letten shall be intended Lands twice letten 33 5. Lands which have at any time before been usually letten how expounded 34 6. How long time will gain a Reputation to pass a thing as appertaining 109 Extinguishment 1. Extinguishment of a Rent is when it is absolutely conveyed to him who hath the Land out of which it issues or the Land is conveyed to him to whom the Rent is granted 199 2. A perpetual union of the Tenancy to the Rent or Rent to the Tenancy is an extinguishment of the Rent 39 3. Where Rent is arrear and afterwards it is granted over in Fee and an Attornment thereunto here the Grantor hath absolutely lost his arrears and cannot after distrain 40 Extent 1. An Extent is sueable into Wales but a Ca. Sa. or Fi. Fa. is not 397 Fee-simple 1. A Fee-simple determinable upon a Contingent is a Fee to all intents but not so durable as an absolute Fee-simple 273 2. A. had issue W. T. and R. and devised to T. and his heirs for ever and if T. died without issue living W. then W. should have the Land this is a good Fee in T. And W. hath a Fee in possibility by Executory Devise if T. dyed without issue before him 272 Fieri Facias See Execution  Fine Fines 1. A Fine levied without consideration or use expressed is to the use of the Conizor 43 2. The Seisin of the Conizee of a Fine is but a meer fiction and an invented form of Conveyance only 41 42 3. The wife in that case shall not be endowed neither shall it descend to his Heir 41 Formedon 1. The Statute de Donis formed a Writ of Formedon in the Descender for the new Estate Tayl created by that Statute but makes no mention of a Formedon in the Reverter as already known in the Chancery 367 Franchise 1. Franchises Inferiour and Counties Palatine are derived out of the Counties by the Kings Grants where the Kings Writ did run 418 Fraud 1. Wheresoever an Action of Debt upon Bond or Contract is brought against an Executor he may confess the Action if there be no fraud in the case although he have notice of a former Suit depending 95 Gardian in Soccage See Title Statutes 26. 1. WHO is Gardian in Soccage at the Common Law 178 244 2. What a Gardian may do in his own name 182 3. Who were Legitimi tutores or Gardians by the Civil Law 244 4. The Exposition of the Statute made 12 Car. 2. 183 184 5. The Gardian by the Statute of 12 Car. 2. doth not derive his authority from the Father but from the Law 186 6. The Lands follow the Gardianship and not the Gardianship the Lands 178 7. The Gardianship now by the Statute may be till One and twenty years 179 8. Such a special Gardian cannot transfer the custody of the Ward by Deed or Will to any other 179 181 9. The trust is only personal and not assignable neither shall it go to the Executors or Administrators 180 181 10. If the father appoint the custody until One and twenty and the Gardian dies it determines with the death of the Gardian and is a Condition in Law if he live so long 185 Grants Grantor Grantee 1. The Law doth not in the Conveyances of Estates admit Estates regularly to pass by implication But in Devises they are allowed with due restrictions 261 262 c. 2. A thing so granted as none can take by the Grant is a void Grant 199 3. In Grants words which are insensible ought to be rejected so likewise words of known signification when they are so placed in the Deed that they are Repugnant are to be rejected equally with words of no known signification 176 4. The meaning of the word appertaining in a Grant and how far it will extend and what it will pass 108 109 5. Land in possession cannot pass by the Grant of a Reversion but by the grant of Land a Reversion will pass 83 6. By the Grant of Stagnum Gurgitem aquarum the Soyl of the Pond passes 107 108 109 7. Where by the Deuise of the Farm of H. the Mannor of H. will well pass 71 8. To a Grant of a Rent by the Common Law an Attornment is requisite 39 9. A Lease is made habendum for 40 years after the expiration of a Lease made to another person whereas in truth there is no such Lease this Lease for 40 years shall commence presently 73 74 80 81 83 84 10. To give or grant that to a man which he had before is no gift at all 42 Grants by the King See Non Obstante Pardon Prerogative 1. Where the Kings Grant is void although there be a saving in an Act of Parliament of all the Right of such Grantee yet that shall not aid it 332 2. If a Patent is not void in its creation it remains good after the death of the King that granted it 332 Habendum 1. A Lease is made habendum for Forty years after the expiration of a Lease made to another person whereas in truth there is no such Lease this Lease for Forty years shall commence presently 73 74 80 81 2. A Rent is granted habendum for Seven years after the death of the Grantor Remainder in Fee 46 Habeas Corpus 1. The Writ of Habeas Corpus is now the most usual Remedy by which a man is restored again to his liberty if against Law he hath been deprived of it 136 2. The Cause of the imprisonment ought as specifically and certainly appear to the Judges upon the Return as it did appear to the Court or person authorized to commit 137 138 139 140 3. A prisoner committed per mandatum of the Lord Chancellor by vertue of a Contempt in Chancery was presently bailed because the Return was generally for Contempts to the Court but no particular Contempt exprest 139 140 4. The Court of Common Pleas or Exchequer upon Habeas Corpus may discharge Prisoners imprisoned by other
license Ex speciali gratia is good to dispense with a penal Law without a Non obstante 356 Nusance 1. Publique Nusances are not Mala in se but Mala politica introducta 358 2. The King may pardon a transient Nusance 333 3. An Action will not lye for a Nusance for which no man hath a particular damage 335 341 4. If a man have a particular damage by a foundrous way he is generally without remedy because it ought to be repaired by some Township or Vill against whom an Action will not lye but an Indictment only 340 Oath 1. Upon granting of Administration the Administrator is to take an Oath duly to administer the Estate of the deceased 96 Occupant and Occupancy 1. What Natural Occupancy is 188 2. What Civil Occupancy is 189 3. An Occupant shall enjoy whatsoever is belonging to that which he occupies 196 4. No Occupancy begins with the Freehold but begins by possessing the Land and the Law casts the Freehold upon him 195 5. A Claim without actual possession cannot make a man a Natural Occupant 188 6. There can be no Occupancy of any thing wherein another hath a Right 188 189 7. Two cannot have severally possession of the same thing at one time 189 192 8. Of what things there may be an Occupancy and of what not 190 194 198 9. A man cannot be an Occupant but of a void possession or of a possession which he himself hath 192 10. What it is that makes an Occupant 191 11. Tenant for years or at will may be an Occupant 192 12. An Occupant becomes an Assignee in Law to the first Lessee 204 13. The Occupant is lyable to pay the Rent 202 203 14. He hath power to pass over his interest 205 15. If a man die seised pur auter vie of a Rent Tythe c. or other thing whereof there can be no Occupancy either directly or by consequence as adjuncts of something else by the death of the Grantee In all these cases the Grant is determined as if there never had been any 201 202 16. But when those things are granted in the same Deed together with other things of which there may be an Occupancy then they shall be subject to the Occupancy 202 Office before Escheators See Inquisition 1. Principally an Office for the King is as necessary as an Entry for a common person 153 2. It neither determines any mans Right neither doth any party put any Tryal upon them 153 3. An Inquest of Office is not subject to an Attaint they are only to find naked matter of Fact 153 4. Where an Office is found if the Defendant hath no Title then the King hath one by his Office 62 5. No person shall Traverse the Office unless he makes to himself a good Title 64 Office and Officer See Title Statutes 24. 1. All Offices of Trust must be personally occupied unless granted to be occupied by a Deputy 181 2. Offices of personal Trust cannot be assigned for the Trust is not personal which any man may have 180 3. An Office of Trust and Confidence cannot be granted for years 181 4. All Actions brought against the Officers mentioned in 21 Jacobi must be laid in the proper County and if the Plaintiff is Non-suited or Discontinue or a Verdict against him they shall have their double costs 111 112 113 114 115 116 117 Ordinary See Administration Arch-bishop Lapse 1. The Ordinary may enforce the Executors to pay Debts upon Contracts as well as Legacies or Marriage mony 97 2. Where the Ordinary is to supply the Cure until the Patron present 132 3. Where the Ordinary disclaims in a Quare Impedit there is a Judgment with a Cessat Executio quousque c. 6 Pardon See Dispensation King 1. A Pardon frees a man from the punishment due for a thing unlawfully done 333 2. What Offences committed against Statutes the King may pardon and what he cannot 333 334 335 c. 3. The King may pardon a transient Nusance but a continued Nusance cannot be pardoned so as to acquit the Nusance-maker for committing them but the fine or punishment imposed for the doing thereof may be pardoned 333 4. Forestalling the Market Ingrossing or the like which continue not but are over as soon as done until done de novo again may be pardoned like other Offences so as the persons shall not be impleaded otherwise than by the persons who have received particular damage which the King cannot remit ibid. Parliament See Statute  Parson and Patron 1. A Parson is chosen Bishop his Benefices are all void and thereupon the King shall present 19 20 21 2. Where a Benefice becomes void by accepting another without a Dispensation the Patron is bound to present without Notice and where not 131 3. Where the Parson doth not read the Articles according to the Statute he stands deprived ipso facto ibid. 4. Where the Parson doth not subscribe the Articles there he is not Incumbent although he keeps in possession 133 5. A Church-man cannot make a Lease of the possessions of his Church without Deed 197 Perpetuity 1. Every Fee-simple is a perpetuity but in the accident of Alienation and alienation is an incident to a Fee determinable upon a Contingent 273 2. There is no Law simply against perpetuities but against an Entail of perpetuities ibid. Pleading See Traverse 1. If the Falshood in the Defendants plea is neither hurtful to the Plaintiff nor beneficial to the Defendant there it shall not hurt the Defendant 104 2. Where the Defendant pleads a false plea which falshood is detrimental to the Plaintiff and beneficial to the Defendant as by pleading several Judgments and concluding that he hath not Assets ultra there the Plaintiff may Reply That one of the Judgments are satisfied which Replication shall be fatal to the Defendant 103 3. But to plead That he hath not bona catalla praeterquam bona quae non sufficient to satisfie the Judgments is void for the Uncertainty for no Sum being mentioned no good Issue can be taken upon it 104 4. So likewise to say That he hath not Assets ultra what will satisfie c. is void for Uncertainty ibid. 5. But it is good pleading to say That he hath not Assets praeterquam bona catalla ad Valentiam separal denar per ipsum in satisfactione separal indic solut And also besides Assets to the value of Ten shillings which are liable to satisfie the Statutes ibid. 6. It is a good plea for an Executor to plead several Judgment c. and conclude quod non habet nec ad aliquod tempus habuit any Assets of the Testators praeterquam bona catalla sufficient to satisfie those Judgments c. 103 7. To this the Plaintiff must Reply Assets ultra or that any one of the Judgments are satisfied ibid. 8. The pleading of a special plene Administravit 91 9. In pleading of a Judgment it is not necessary to set forth the
Heirs is expresly forbidden by the Statute de Donis 374 Right See Title Action 1. Where there can be presumed to be no remedy there is no right 38 Seisin 1. THe profits of all and every part of the Land are the Esplees of the Land and prove the Seisin of the whole Land 255 2. In an Entry sur Disseisin or other Action where Esplees are to be alledged the profits of a Mine will not serve 254 Spoliation 1. The Writ of Spoliation lyes for one Incumbent against the other where the Patrons right comes in question 24 Statute See Recognizance 1. A Recognizance taken before the Chief Justice of the Common Pleas in the nature of a Statute Staple 102 Statutes in general 1. Where an Act of Parliament is dubious long usage is a just medium to expound it by and the meaning of things spoken and written must be as hath been constantly received by common acceptation 169 2. But where usage is against the obvious meaning of an Act by the vulgar and common acceptation of words then it is rather an oppression then exposition of the Act 170 3. When an Act of Parliament alters the Common Law the meaning shall not be strained beyond the words except in cases of publick utility when the end of the Act appears to be larger than the words themselves 179 4. Secular Judges are most conizant in Acts of Parliament 213 5. When the words of a Statute extend not to an inconvenience rarely happening but doth to those which often happen it is good reason not to strain the words further than they will reach by saying it is casus omissus and that the Law intended quae frequentius accidunt 373 6. But where the words of a Law do extend to an inconvenience seldom happening there it shall extend to it as well as if it happens more frequently 373 7. An Act of Parliament which generally prohibits a thing upon a penalty which is popular or only given to the King may be inconvenient to diverse particular persons in respect of person place time c. For this cause the Law hath given power to the King to dispense with particular persons 347 8. Whatsoever is declared by an Act of Parliament to be against Law we must admit it so for by a Law viz. by Act of Parliament it is so declared 327 9. Where the Kings Grant is void in its creation a saving of that Grant in an Act of Parliament shall not aid it 332 10. How an Act of Parliament may be proved there hath been such an Act where the Roll is lost 162 163 404 405 407 11. An Act of Parliament in Ireland cannot effect a thing which could not be done without an Act of Parliament in England 289 12. Distinct Kingdoms cannot be united but by mutual Acts of Parliament 300 13. A repealed Act of Parliament is of no more effect than if it had never been made 325 Statutes 1. Merton cap. 4. The Statute of Merton which gave the owner of the Soyl power to approve Common did not consider whether the Lord was equally bound to pasture with his Tenants or not but it considered that the Lord should approve his own Ground so as the Commoners had sufficient 256 257 2. The inconveniences before the making of the Statute and the several remedies that were provided by it 257 1. Westm 1. 3 E. 1. The Antiquae Custumae upon Woolls Woolfells and Leather were granted to E. 1. by Parliament and therefore they are not by the Common Law 162 163 1. Westm 1. cap. 38. Attaints in Pleas real were granted by this Statute 146 1. Westm 2. cap. 24. The Quare Ejecit infra terminum is given by this Statute for the recovery of the Term against the Feoffee for an Ejectment lay not against him he coming to the Land by Feoffment 127 Statute of Glocester 1. Restrained warranties from binding as at Common Law 366 377 2. Before this Statute all Warranties which descended to the Heirs of the Warrantors were barrs to them except they were Warranties which commenced by Disseisin 366 3. The reason why the warranty of Tenant in Tayl with assets binds the right of the Estate Tayl is in no respect from the Statute de Donis but by the equity of the Statute of Glocester by which the Warranty of the Tenant per Curtesie barrs not the Heir for his Mothers Land if his Father leaves not assets to descend 365 4. If this Statute had not been made the lineal Warranty of Tenant in Tayl had no more bound the right of the Estate Tayl by the Statute de Donis with assets descending than it doth without assets ibid. Westm 2. De Donis 1. All Issues in Tayl within this Statute are to claim by the Writ purposely formed there for them which is a Formedon in the Descender 369 2. it intended not to restrain the alienation of any Estates but such as were Fee-simples at the Common Law 370 3. This Statute intended not to preserve the Estate for the Issue or the Reversion for the Donor absolutely against all Warranties but against the alienation with or without Warranty of the Donee and Tenant in Tayl only 369 4. Therefore if Tenant for life alien with Warranty which descended upon the Reversioner that was not restrained by the Statute but left at the Common Law 370 5. By this Statute the Warranty of Tenant in Tayl will not barr the Donor or his Heir of the Reversion ibid. 6. The Donee in Tayl is hereby expresly restrained from all power of alienation whereby the Lands entayled may not revert to the Donor for want of issue in Tayl 371 7. See a further Exposition upon this Statute from fol. 371 to 393 1. Wales Statute de Rutland 12 E. 1. after the Conquest of it by Edward the First was annext to England Jure proprietatis and received Laws from England as Ireland did Vide postea 9 17 18. and had a Chancery of their own and was not bound by the Law of England until 27 H. 8. 300 301 399 400 2. Although Wales became of the Dominion of England from that time yet the Courts of England had nothing to do with the Administration of Justice there in other manner than now they have with the Barbadoes Jersey c. all which are of the Dominions of England and may be bound by Laws made respectively for them by an English Parliament 400 See for a further Exposition 401 402 c. Acton Burnell 13 E. 1. 1. Recognizances for Debt were taken before this Statute by the Chancellor two Chief Justices and Justices Itinerants neither are they hindred by this Statute from taking them as they did before 102 28 E. 3. c. 2. concerning Wales 1. Tryals and Writs in England for Lands in Wales were only for Lordships Marchers and not for Lands within the Principality of Wales Vide ante 7. pòstea 17 18. for the Lordships and Marchers were of the Dominion of England and held of
recover any thing from me it is not sufficient for you to destroy my Title but you must prove your own to be better than mine 58 60 2. In a Quare Impedit if the Defendant will leave the general Issue and controvert the Plaintiffs Title he must do it by his own Title 58 3. The Plaintiff must recover by his own strength and not by the Defendants weakness 8 58 4. Priority of possession is a good Title against him who hath no Title at all 299 5. No man can Traverse an Office except he can make himself a good Title 64 Trade 1. The Law permits not persons who have served Seven years to have a way of livelyhood to be hindred in the Exercise of their Trades in any Town or part of the Kingdom 356 Traverse 1. No person shall Traverse an Office unless he can make himself a good Title 64 2. When in a Quare Impedit the Defendant Traverseth any part of the Plaintiffs Count it ought to be such part as is inconsistent with his Title and being found against the Plaintiff destroys his Title 8 9 10 3. Where the presentation and not the seisin of the Advowson is to be traversed 9 10 11 12 4. Where the Presentation and not the Appendancy is traversable 10 11 15 5. Where the Seisin in Gross or Appendancy is Traversable 12 13 6. The Appendancy is well Traversed when it is all the Plaintiffs Title to present and inconsistent with the Defendants 13 15 7. Where either the Appendancy or Presentation may be Traversed 15 8. Where neither the Seisin in Gross nor Appendancy shall be Traversed but only the Vacancy 16 9. Where the King may take a Traverse upon a Traverse which regularly a common person cannot do but where the first Traverse tendred by the Defendant is not material to the Action brought 62 10. Where the King may refuse to maintain his own Title which is Traversed by the Defendant and take a Traverse to the Title made by the Defendant 62 64 Trespass 1. By the ancient Law it was adjudged in Parliament no man ought to be condemned in a Trespass de praecepto or auxilio if no man were convicted of the Fact done 115 116 2. Action of Trespass against Officers within the Statute as Constables c. and their Assistants must be laid in the proper County 111 112 113 114 115 116 117 Tryal 1. Actions upon Bond or Deed made in Wales Ireland Normandy c. where to be brought 413 2. How Dominions Leagues and Truces are to be tryed 288 3. An Issue arising out of the Jurisdiction of the Courts of England although it arise within the Dominions of England out of the Realm shall not be tryed in England 404 4. If a Signiory in Wales that is not part of the Principality be to be tryed it must be tryed by the Common Law but if Land within the Signiory is to be tryed it must be tryed within the Mannor there 407 5. A person naturalized in Ireland commits Treason beyond the Seas where no local Allegiance is due to the King how and where he shall be tryed 291 292 Tythes 1. Though Tythes pass by Deed only yet where a Rectory and the Tythes de D. are granted if there is not Livery neither the Rectory nor Tythes will pass because they were intended to be granted together 197 2. There can be no primary and immediate Occupancy of Tythes 191 194 3. A Rent cannot be reserved out of a bare Tythe only to make the Lease good within the 13 Eliz. cap. 10. because neither a Distress nor Assise can be brought thereof 204 Verdict See Evidence Issue 1. THE Jury may find a Deed or a Will the Contents thereof being proved by witnesses 77 2. But if they will collect the Contents of the Deed and by the same Verdict find the Deed in haec Verba the Court is not to adjudge upon their Collection but the Deed it self ibid. 3. A Deed or Will must not be found in part because the Court cannot but adjudge upon the whole matter and not upon part only 84 4. The legal Verdict of the Jury is finding for the Plaintiff or the Defendant and what they answer if asked concerning some particular Fact is no part of their Verdict 150 5. In a general Verdict finding the point in Issue by way of Argument although never so concluding is not good 75 187 6. In a Special Verdict the Case in Fact must be found clear to a common intent without Equivocation 75 78 87 7. The Issue was Whether a Copyhold was grantable to three for the lives of two The Jury find that it is grantable for Three Lives this was argumentative only and therefore a void Verdict 87 8. Where a man by Lease reciting a former Lease to have been made doth Demise for Forty years after the Expiration of that Lease paying the same Rent as is mentioned in the recited Lease and only the Lease for Forty years and not the recited Lease is found in the Verdict This Verdict is a void Verdict and findeth neither the one or other Lease 74 75 76 81 82 Vintners See Title Statute 21. 1. The King could not better answer the end of the Act of 7 E. 6. than to restrain the Sellers of Wine to Freemen of London 2. To the Corporation of Vintners men bred up in that Trade and serving Apprenticeships to it 355 3. And that such should be licensed without restraint is most agreeable to the Law of the Kingdom which permits not persons who have served Seven years to have a way of livelyhood to be hindred in the Exercise of their Trades 356 Voucher Vouchee 1. No man shall Vouch who is not privy to the Estate that is who hath not the same Estate as well as the Land to which the warranty was annexed 384 2. When a man will be warranted by Voucher he must make it appear how the warranty extends to him 385 Vse See Title Statutes 19. 1. The Statute brings the new Uses raised out of a feigned possession and for no time in the Conizee to the real possession and for all times in the Conizors which operates according to their Intents to change their Estates but not possessions 42 2. By the Statue of 27 H. 8. the Use and Possession come instantly together 50 3. The principal use of the Statute of Uses is to introduce a general form of Conveyance by which the Conizors of the Fine may execute their purposes at pleasure 50 4. An old Use may be revoked and a new Use raised at the same time 42 5. Uses declared by Indenture made a year after the Recovery 51 6. If a Fine be levied of the Reversion of Land or of a Rent to Uses the Cestuy que use may Distrain without Attornment 50 51 7. A Rent may arise out of the Estate of Cestuy que use upon a Recovery which was to arise out of the Recoverers Estate 52 Vsurpation 1. A void
presentation makes no Usurpation when the Kings Presentation gains a Title by Usurpation 14 2. If a man in time of Vacancy present his Clerk who is admitted instituted and inducted he gains a good Title to present by Usurpation when the Church becomes next void 10 11 12 15 57 Wager of Law 1. A Man can never wage his Law for a Demand which is uncertain because he cannot swear he paid that which consisted of Damages only 101 2. Debt lies against an Executor for Attorneys Fees because there the Testator could not wage his Law 99 Wales See Title Statute 7 9 15. 1. Wales after the Conquest of it by Edward the First was annexed to England Jure Proprietatis 300 2. It received Laws from England as Ireland did and differs nothing from it but only in Irelands having a Parliament 300 301 3. Wales before the Conquest of it by England was governed by its own Laws 399 4. When Wales came to be of the Dominion of the Crown of England and what Laws they were then obliged to 399 400 402 415 5. Process in Wales differs from Process in England 400 412 6. That the Summons of Inhabitants in Wales and the Tryal of an Issue arising there should be by the Sheriff of the next adjoyning County was first ordained by Parliament and not at the Common Law 404 408 412 7. This Ordinance extended not to all Wales but only to the Lordships Marchers there neither did it extend to the Body of the Principal ty of Wales to which the Statute of Rutland only extended 405 408 411 412 8. Where the Land is part of the Principality of Wales it was subject to the Laws of Wales but when it is held of the King then there was no remedy but in the Kings Courts 405 406 408 9. If a Signiory in Wales was to be tryed it should be tryed by the Common Law but if Lands were held of the Signiory it should be tryed within the Mannor 407 10. All Quare Impedits for disturbance to Churches in Wales within the Lordships Marchers only were tryable in England and not in Wales 409 410 11. The Bishops of Wales were originally of the Foundation of the Prince of Wales 411 12. By the 26 H. 8. Power is given to Indict Outlaw and Proceed against Traytors and Felons c. within the Lordships Marchers of Wales and to be indicted in the adjoyning County but not against Offenders within the Principality 413 13. What alterations have since been made by the 27 H. 8. and 1 E. 6. cap. 10. 414 415 416 c. 14. The uniting and incorporating of Wales to England doth not thereby make the Laws used in England extend to Wales without more express words 415 15. Since the Act of 27 Hen. 8. the Courts at Westminster have less Jurisdiction in Wales than they had for as they before had Jurisdiction in all the Lordships Marchers they now have only in these four Counties therein particularly mentioned but none over the rest 417 16. No Fieri Facias Capias ad satisfaciendum or other Judicial Process did run into Wales but only an Outlawry and an Extent had gone 397 412 414 17. A Judgment given in Wales shall not be executed in England 398 18. The Lordships Marchers did lye betwixt the Shires of England and the Shires of Wales 415 19. To what Counties and Places the Lordships Marchers in Wales are now annext by the 27 H. 8. 415 Warrantia Chartae 1. No man shall have a Warrantia Chartae who is not privy to the Estate that is who hath not the same Estate as well as the Land to which the warranty was annexed 384 Warranty See Title Statutes 5 6. 1. Dedi Concessi is a warranty in Law 126 2. Where there is a warranty in Law and an express warranty it is at the election of the party to take advantage of either 126 127 3. At the Common Law the distinction of a lineal and collateral warranty was useless and unknown and as to any effect of Law there was no difference between a lineal and collateral warranty but the warranty of the Ancestor descending upon the Heir be it the one or the other did equally bind 366 4. The warranty of Tenant Tayl descending upon the Donor or his Heirs is no barr in a Formedon in Reverter brought by them although it be a collateral warranty 364 365 368 5. The warranty of Tenant by the Courtesie barrs not the Heir if the Father leave not Assets to descend in Recompence 365 6. The lineal warranty of Tenant in Tayl shall not bind the right of the Estate Tayl by the Statute de Donis neither with or without Assets descending 365 366 7. The Statute de Donis restrains not the warranty of Tenant in Tayl from barring him in the Remainder in Tayl by his warranty descending upon him 367 As to him in Remainder in Tayl the warranty of the Donee is collateral and binds as at the Common Law 367 377 379 381 8. No Issue in Tayl is defended from the warranty of the Donee or Tenant in Tayl but such as are inheritable to the Estates intended within that Statute and no Estates are so intended but such only as had been Fee-simples conditional 369 9. The Statute de Donis preserves the Estate Tayl for the Issue or the Reversion for the Donor against the alienations of the Donee or Tenant in Tayl with or without warranty but not absolutely against all warranties that might barr them for it hath not restrained the collateral warranty of any other Ancestor 369 370 377 379 381 10. An alienation with warranty which shall hinder the Land from reverting to the Donor or his Heirs is expresly forbidden by the Statute de Donis 374 11. No mans warranty doth bind directly à priori because it is lineal or collateral for no Statute restrains any warranty under those terms from binding nor no Law institutes any warranty in those terms but those are restraints by consequent only from the restraints of warranties made by Statute 375 12 The Statute de Donis makes no difference between a Donor stranger and a Donor privy in blood to the Donee but the warranties are the same in both Cases 378 13. The Tenant in possession may Rebutt the Demandant without shewing how he came to the possession which he then hath when impleaded be it by disseisin or any other tortious way but he must shew how the warranty extended to him 385 386 14. If a man will be warranted by a Rebutter he must make it appear how the warranty extends to him but he need not have the like estate in the Land upon a Rebutter as upon a Voucher 385 15. The Tenant in possession shall not rebut the Demandant by the warranty without he first make it appear that the warranty did extend to him as Heir or Assignee 385 386 387 388 16. Where a man is once entituled to the warranty whatsoever Estate he had when
impleaded he might rebut though he could not vouch 386 17. Tenant in possession setting forth how the warranty extends to him needs not set forth by what Estate or Title he is in possession 387 18. A warranty may be extinguished several ways by Release by Defeazance by Attainder by Re-feoffment of the Warrantor or his Heirs 387 And where the Estate to which it is annexed is determined 389 19. If the warranty be destroyed the Rebutter which is the incident to it is likewise destroyed 387 392 20. Feoffees are seised to the use of A. for his life afterwards to the use of his wife for her life and after to the use of the right heirs of A and when by the Statute of Uses the possession is brought to these Uses the warranty by A. to the Feoffees and their heirs is wholly destroy'd 389 21. But if it had been made to them and their Assignees it were more colourable than to them and their Heirs only 390 22. Where the warranty cannot attach the Ancestor it shall never attach the Heir ibid. 23. Where a warranty is made to a man and his heirs his Assignee can take no advantage of it ibid. 24. The Warranty being an incident to the Estate warranted shall accompany it where the Law disposeth the Estate and Lands warranted to all intents 392 25. Such persons who come to the Estate dispositione legis are not properly in the post ibid. 26. There are some persons who may rebutt and perhaps vouch who are neither Heirs nor formally Assignees but have the Estate warranted dispositione legis as Tenant pur le Curtesie Tenant in Dower c. 390 391 392 Wife See Baron Feme Will See Devise  Witnesses 1. A Witness swears but to what he hath seen or heard generally or more largely to what hath fallen under his Senses 142 Writ See Abatement of Writs 1. Brevia Mandatoria Non Remedialia are Writs that concern not the Rights or Properties of the Subject but the Government and Superintendency of the King 401 2. No person shall have a Writ to the Bishop except his Title appears plainly 60 3. In a Quare Impedit the Plaintiff and Defendant are both Actors and may each of them have a Writ to the Bishop 6 7 4. In a Quare Impedit if all the Defendants plead Ne disturba pas the Plaintiff may pray a Writ to the Bishop or maintain the disturbance for damages 58 5. A Writ to the Bishop Non obstante Reclamatione 6 6. Judges ought not ex Officio to abate Writs 95 Wreck See Title Statutes 25. 1. By the Common Law all wreckt Goods were the Kings and therefore are not chargeable with any Custome 164 2. Wrecks are such Goods as are cast on Land and have no other owner or proprietor but who the Law makes viz. the King or Lord of the Mannor but they have not an absolute property until after a year and a day 168 3. Goods which are wreck are not liable to pay any Custome by 12 Car. 2. nor any other Law 165 166 171 172 4. A man may have wreck by prescription 164 5. Goods derelicted may be wreck 168 FINIS ERRATA Page 10. in marg r. 269. p. 45. l. 21. r. Case p. 107. l. 3. r. March p. 157. in marg r. Magna Chart. p. 161. l. 35. r. resolved ibid. l. 35. r. searches p. 183. in marg r. 89. p. 208. l. 23. r. knowledge l. 36. r. 23. p. 210. l. 22. r. fourth p. 337. l. 11. r. poyar p. 359. l. penult r. by the. p. 383. l. 12. r. Croke p. 390. l. 38. r. Institutione p. 410. l. 26. r. unque p. 420. l. 3. r. of A TABLE of the Names of the Principal CASES contained in this BOOK B. BEdle vers Constable 177 Bole alii vers Horton 360 Bushels Case 135 C. CRawe vers Ramsey 274 Crawley vers Swindley alios 173 D. DIxon vers Harrison 36 E. EDes vers the Bishop of Exon 18 Edgcombe vers Dee 89 G. GArdner vers Sheldon 259 H. HAyes vers Bickerstaff 118 Harrison vers Dr. Burrell 206 Hill vers Good 302 Holden vers Smallbrook 187 K. THe King vers Bishop of Worcester 53 N. SIr Henry North vers Coe 251 P. PRice vers Braham alios 106 R. ROwe vers Huntington 66 S. SHephard vers Gosnold alios 159 Shute vers Higden 129 Stiles vers Coxe alios 111 T. SIr John Tufton vers Sir Richard Temple 1 Tristram vers Viscountess Baltinglasse 28 Thomas vers Sorrell 330 W. COncerning Process out of the Courts of Westminster into Wales 395