Construction can be made of them but that an Estate in possession was thereby intended to pass 4. Object That this Fine and Grant must be construed to enure according to the intent of the Parties ut res magis valeat and they never intended to make a Forfeiture Answ Certainly no Man ever intended to make a Forfeiture of his own Estate those are generally the effects of Ignorance and not of the Will as the Case of Gimlet and Sands Cro. Car. * 1 Roll. Abr. 856. 391. where Tenant in Fee makes a Feoffment to two to the use of himself for Life then to the use of his Wife for Life Remainder in Tail to his Son and Heir Remainder to his own right Heirs and afterwards he made another Feoffment to Smith with Warranty the Mother and Son join in another Feoffment adjudged that this was a Forfeiture of her Estate for life though she had no notice of the Warranty made by her Husband for the Feoffment made by him was a publick Act upon the Land and she ought to have taken notice of it and though by her joining in the Feoffment with her Son she did not intend to forfeit her Estate yet the Law adjudges according to what is done But in the Case at Barr the intention of the Parties may be collected by the Act done and there is great reason to presume that the Parties thereby intended to displace the Reversion for the Husband joyning in the Fine and in the Warranty if it was no divesting the Warranty is of no use Another Objection has been only mentioned which is that admitting this should amount to a displacing if the Estate had been in possession yet in this Case it would not because it was prevented by the Lease for years in being But that cannot hinder the execution of this Fine 't is a Fine sur concessit which is executory in its nature and doth not pass any Estate or take any effect 'till executed and so is the Book 41 5. 3. 14. b. But in this Case the Fine was executed which may be by matter in pais as well as by Scire facias and as to this purpose may be executed by the entry of the Conusor 1 Rep. 106. Dyer 376. b. without suing out any Execution 38 Ed. 3. Brook tit Scire facias 199. If there had been a Fine executed there would have beén little doubt left in this Case and by the Attornment of the Lessee for years it must be admitted that this Fine was executed as 8 Ed. 3. f. 44. For a Fine of a Reversion may be executed to all purposes by the Attornment of the Lessee for years and if so when a Fine executory is once executed 't is as good as a Fine sur Conusance de droit come ceo to make a forfeiture of the particular Estate Where a Feoffment is made and a Lease for years is in being the Feoffment is not good because in such case there must be a present transposition of the Estate Postea Moor and Pitt which is hindred by the Lease But in case of a Fine which is a Feoffment upon Record a Lease for years is no impediment or displacing of the Reversion for if Tenant in Tayl expectant upon a Lease for years levy a Fine 't is a discontinuance of the Tayl and notwithstanding this Lease the Fine has such an operation upon the Free-hold that it displaces the Reversion in Fee Co. Lit. 332. And therefore if a Lease for years prevents not a Discontinuance it will much less hinder a displacing in this case But no Iudgment was given now in this Case another matter being debated whether the Plaintiff could have Iudgment because he was barred by the Statute of Limitations for it did not appear that he had been in possession for twenty years past and the Verdict hath not found any Claim or that the Plaintiff was within the Proviso of the Act. Waterfield versus the Bishop of Chichester Oath Ex Officio not to be administred A Prohibition was granted last Easter-Term to the Bishop of Chichester upon a Suggestion made by Waterfield that he being chosen Churchwarden of the Parish Church of Arundel in the County of Sussex the Bishop tendered him an Oath ex officio which was that he should Present every Parishioner who had done any Offence or neglected any Duty mentioned in certain Articles contained in a printed Book delivered to him some of which Articles concern the Church-warden himself and so in effect he was to swear against himself in case of any default which is expressly against the Statute of 13 Car. 2. Sid. 232 cap. 12. which prohibits any person having Ecclesiastical Iurisdiction to administer the Oath ex officio or any other Oath whereby the person to whom 't is administred may be charged to accuse himself of any criminal matter whereby he may be lyable to any Censure or punishment and because the Bishop had Excommunicated him for refusing such Oath he prayed a Prohibition which was granted quoad the compelling him to make any answer to the said Articles concerning himself and the Excommunication was discharged But now upon the motion of Serjeant Brampston a Consultation was awarded because it appeared by the Affidavit of the Commissary who tendred this Oath and likewise by the act of the Court that he was Excommunicated for refusing to take the Oath of a Church warden according to Law which was the only Oath tendred and therefore the ground of the Prohibition being false a Consultation was awarded In this Prohibition it was recited That the Bishop cannot give an Oath but in two cases viz. in matters Testamentary and Matrimonial whereas they have authority in many cases more 't is true also that until his Iurisdiction was increased by Act of Parliament he could hold Plea in none but those two causes 2 Inst 487 537. but by the Statute De circumspecte agatis and of Articuli Cleri he may now hold Plea in many other cases The Bishop informed the Lord Chief Iustice that the Plaintiff Waterfeild had caused 2000 of the Prohibitions to be printed in English and had dispersed them all over the Kingdom intituling them a true translated Copy of a Writ of Prohibition granted by the Lord Chief Iustice and other the Iustices of the Court of Common Pleas in Easter-Term 1676. against the Bishop of Chichester who had proceeded against and Excommunicated one Thomas Waterfield a Churchwarden for refusing to take the Oath usually tendred to persons in such Office by which Writ the Illegality of all such Oaths is declared and the said Bishop commanded to take off his Excommunication And this was declared by the Court to be a most seditious Libel and gave order to enquire after the Printer that he might be prosecuted Eleanor Plummer versus Sir Jeremy Whitchot Intr. Trin. 27 or 28 Car. 2. Rot. 301. in B. R. IN an Action of Debt for an Escape Vpon Nil debet
Statuti if there be any other Statute which prohibits and punishes a Riot this Information is as well grounded upon such as upon this Statute of Philip and Mary for 't is expresly said that the Defendant and others did unlawfully assemble themselves together and riotose routose made an Assault upon her so that it shall be intended to be grounded upon such a Law as shall be best for punishing the Offence The Court were of Opinion Curia That notwithstanding these Exceptions the Information was good and was not like the Case of an Indictment upon the Statute for a forceable Entry That such a day by force and arms the Defendant did Enter into such a House 2 Cro. 14610 639. existen ' liberum tenementum of J. N. and if he doth not say tunc existen ' the Indictment is naught because the Iury may enquire of a thing before it is done but here the existen being added to the person carries the sense to the time of the Offence committed The Statute of 1 R. 3. saith that all Grants made by Cestui que use being of full Age shall be good against him and his Heirs and 't is adjudged 16 H. 7. that he need not shew when and where but generally existen ' of full Age and upon the Evidence it must be so proved Where a thing relates to the Condition of a Man it shall be tryed in the County where the Action is laid and 't is not necessary to say in what County he is a Knight or an Esquire any Citizen and Freeman may devise his Land in Mortmain by the Custom of London 't is enough to say in Pleading existen ' a Citizen and Freeman without setting forth when and where If a Man be Indicted for not coming to Church 't is enough to say existen ' of the Age of 16 years he did not come to Church This is an Offence punishable at Common Law 't is malum in se But admitting 't was an Offence created by the Statute there being no Negative words to prohibit this Court hath a Iurisdiction to punish this Offence if the Star Chamber had not been taken away for the Party had his election to proceed in this Court upon the prohibitory Clause and the Iustices of Assise must be intended the Iustices of Oyer and Terminer Moor 564. Whereupon the Defendant was Fined 500 l. and bound to his good Behaviour for a Year Brown versus Waite Entailed Lands forfeited for Treason Jones 57. 1 Ventr 299. UPon a Special Verdict in Ejectment The Case was viz. Sir John Danvers the Father of the Lessor of the Plaintiff was in Anno Domini 1646. Tenant in Tail of the Lands now in Question and was afterwards instrumental in bringing the late King Charles to death and so was guilty of High Treason and dyed Afterwards the Act of Pains and Penalties made 13 Car. 2. cap. 15. Enacts That all the Lands Tenements and Hereditaments which Sir John Danvers had the 25th day of March in the year 1646. or at any time since shall be forfeited to the King And whether these entailed Lands shall be forfeited to the King by force of this Act was the Question Wallop who argued for the Plaintiff said that the entailed Lands were not forfeited his Reasons were 1. These Lands entailed are not expressly named in that Act. 2. Tenant in Tail hath but an Estate for Life in his Lands and therefore by these words All his Lands those which are entailed cannot be intended for if he grant totum statum suum only an Estate for Life passeth 3. These Lands are not forfeited by the Statute of 26 H. 8. cap. 13. which gives the forfeiture of entailed Lands in case of Treason hecause Sir John Danvers was not convicted of it by Process Presentment Confession Verdict or Outlawry which that Statute doth require for he dyed before any such Conviction Sir Francis Winnington the Kings Solicitor argued contra that entailed Lands are forfeited by the Act of Pains and Penalties and in speaking to this matter he considered 1. The words of that Act. 2. How Estates Tail were created and how forfeitable for Treason 1. This Act recites the Act of general Pardon which did not intend to discharge the Lands of Sir John Danvers and others from a Forfeiture 2. It recites that he was Guilty of High Treason 3. Then comes the enacting Clause Viz. That all the Lands Tenements Rights Interests Offices Annuities and all other Hereditaments Leases Chattels and other things of what nature soever of him the said Sir John Danvers and others which they had on the 25th of March 1646. or at any time since shall be forfeited to the King his Heirs and Successors 2. As to the creation of Intails there were no such Estates at the Common Law they were all Fee-simple Conditional and post prolem suscitatam the Condition was performed for three purposes Viz. To Alien Co. Lit. 19. a. 2 Inst 334. To Forfeit Or to charge with a Rent and thus the Law continued till 13 E. 1. and there having been frequent Warrs between King John and the Barons the great Men then obtained the Statute De donis to preserve their Estates lest the like occasion should happen again in which 't is only mentioned that the Tenant in Tail should not have power to alien but it was well known that if he could not alien he could not forfeit for before that Statute as he might alien post prolem suscitatam so the Iudges always construed that he might forfeit 5 Edw. 3.14 for forfeiture and alienation did always go hand in hand 1 Co. 175. Mildmay's Case And from the making of that Statute it always continued a setled and received Opinion That Tenant in Tail could not alien until by the 12th of Ed. 4. a Recovery came in by which the Estate Tail may be docked and which is now become a Common Assurance Then by the Statute of 4 H. 7. cap. 24. Tenant in Tail might bar his Issue by Fine and Proclamation and all this while it was not thought that such Lands could be forfeited for Treason which Opinion continued during all the Reign of H. 7. for though by his Marriage the Houses of York and Lancaster were united yet the Great Men in those days thought there might be some doubt about the Succession after the death of H. 7. if he should dye without Issue and thereby those differences might be again revived and therefore no endeavours were used to make any alteration in the Law till after the death of H. 7. And after his Son H. 8. had Issue those doubts were removed and being never likely to arise again then the Act of 26 H. 8. was made which gives a Forfeiture of entailed Lands in cases of Treason The inference from this will be that all the Cases put before the 26th year of H. 8. and so before entailed Lands were made forfeitable for Treason and where by the general Words
of Lands Tenements and Hereditaments 't was adjudged entailed Lands did not pass do not concern this Case but now since they are made forfeitable by that Statute such general words are sufficient to serve the turn By the Statute of 16 R. 2. cap. 5. entailed Lands are not forfeited in a Praemunire but during the Life of Tenant in Tail because they were not then to be forfeited for Treason 2 Inst 334. 1 Inst 3. Co. Lit. 130. If then it appears that the Crime of which Sir John Danvers was guilty was Treason and if entailed Lands are forfeited for Treason then when the Act saith That he shall forfeit all his Lands by those general Words his entailed Lands shall be forfeited And though by the Common Law there can be no Attainder in this Case the Party being dead yet by Act of Parliament that may be done and the words in this Act amount to an Attainder The intent of it was to forfeit Estates Tail which may be collected from the general Words for if a Fee-simple is forfeited though not named why not an Estate Tail especially since the word Hereditaments is very comprehensive and may take in both those Estates Spelman's Glossary 227. 2 Roll. Rep. 503. In the very Act of 26 H. 8. cap. 13. Estates Tail are not named for the Words are Every Offender convict of Treason c. shall forfeit all such Lands Tenements and Hereditaments which he shall have of any Estate of Inheritance in use possession or by any Right Title or Means c. and yet a Construction hath been made thereupon in favour of the Crown so a Dignity of an Earldom intailed is forfeitable by this Statute by the Word Hereditament 7 Co. 34. Afterwards in Hillary Term Rainsford Chief Iustice delivered the Opinion of the Court Judgment That upon Construction of the Act of Pains and Penalties this Estate Tail was forfeited to the King He agreed the Series and progress of Estates Tail to have been as argued by the Solicitor and that the Question now was whether by the Act of Pains c. Estates Tail can be forfeited unless there are express Words to take away the force of the Statute de donis conditionalibus Preface to 3 Co. for by that Statute there was a settled perpetuity Tenant in Tail could neither forfeit or alien his Estate no not in Case of Treason and Forfeiture is a kind of Alienation but afterwards by the Resolution in Ed. 4. an Alienation by a Common Recovery was construed to be out of the said Statute and by the Statute of Fines 4 H. 7. which is expounded by a subsequent Statute of 32 H. 8. cap. 36. Tenant in Tail notwithstanding his former restraint had power to alien the Estate Tail and barr his Issue but all this while his Estate was not to be forfeited for Treason till the Statute of 33 H. 8. cap. 20. which gives Uses Rights Entries Conditions as well as Possessions Reversions Remainders and all other things of a person attainted of Treason by the Common or Statute Law of the Realm to the King as if such Attainder had been by Act of Parliament Then by the Statute of 5 6 Ed. cap. 11. 't is Enacted That an Offender being guilty of High Treason and lawfully convict shall forfeit to the King all such Lands Tenements and Hereditaments which he shall have of any Estate of Inheritance in his own Right in Use or Possession by which Statutes that de donis conditionalibus was taken off in Cases of Treason as it had been before by the resolution in 12 E. 4. and by the Statute of Fines as to the Alienation of an Estate Tail by Fine and Recovery If therefore this Act of Pains c. will admit of such a construction as to make Estates Tail forfeit here is a Crime great enough to deserve such a great punishment a Crime for which the Parliament hath ordered an Anniversary to be kept for ever with Fasting and Humiliation to implore that the Guilt of that innocent Blood then shed may not be required of our Posterity this they esteemed as another kind of Original Sin which unless thus expiated might extend not only ad Natos sed qui nascantur ab illis And that this Act will admit of such a Construction these Reasons were given 1. From the general comprehensive Words mentioning those things which are to be forfeited viz. Messuages Lands Tenements Reversions and Interests which last Word signifies the Estate in the Land as well as the Land it self or otherwise the Word must be construed to have no effect 2. Estates Tail are not now protected by the Clause in the Statute de donis * Inst 334. Non habet potestatem alienandi but are subject to the forfeiture by the Act of H. 8. which though it extends to Attainders only yet 't is a good Rule for the Iudges to make a Construction of an Act of Parliament by especially in such a Case as this wherein 't is plain that the Law did look upon these Offenders if not attainted yet in pari gradu with such persons and therefore may be a good Warrant to make the like Construction as in Cases of Attainder 3. Because the Offenders are dead for had they béen living there might have been better reason to have construed this Act not to extend to Estates Tail because then something might be forfeited viz. an Estate for Life and therefore the Act would signifie very little if such Construction could not be made of it to reach Estates Tail of such persons who were dead at the time of the making the Law especially since 't is well known that when Men engage in such Crimes they give what Protection they can to their Estates and place them as far as they can out of danger 4. It appears by the Act that the Law-makers did not intend that the Children of such Offenders should have any benefit of their Estates because in the Proviso there is a saving of all Estates of Purchasers for Mony bona fide paid and therein also a particular Exception of the Wife and Children and Heirs of the Offenders and if the Act would not protect the Estate of the Children though they should be Purchasers for a valuable consideration it will never protect their Estate under a voluntary Conveyance made by the Ancestor especially in this Case because the Entail carries a suspicion with it that it was designed with a prospect to commit this Crime for Sir John Danvers was Tenant in Tail before and in the year 1647. levies a Fine to barr that Entail and then limits a new Estate Tail to himself in which there is a Provision to make Leases for any number of years upon what Lives soever in Possession or Reversion with Rent or without it and this was but the year before the Crime committed 5. The Proviso in the Act for saving the Estates of Purchasers doth protect all Conveyances and
Assurances c. of Land not being the Lands of the late King Queen Prince c. and not being Land sold for any pretended Delinquency since the first of June 1641. and all Statutes and Judgments suffered by the Offenders from being impeached from which it appears that the Parliament lookt upon entailed Lands as forfeited for if Estates made to others upon a valuable consideration had need of a Proviso to save them from Forfeiture à fortiori the Estates out of which those are derived have need of such a saving and therefore must be forfeit by the Act for which Reasons these Lands are forfeited As to the great Objection which hath been made and insisted on the other side and which is Trudgeons Case 22 Eliz. 1 Inst 130. Where Tenant in Tail was attainted in a Praemunire and it was adjudged that he should forfeit his Land but during his Life for though the Statue of 16 R. 2. cap. cap. 5. Enacts That in such Case their Lands Tenements Goods and Chattels shall be forfeited to the King yet that must be understood of such an Estate as he may lawfully forfeit and that is during his own life and therefore being general Words they do not take away the force of the Statute de donis so that his Lands in Fee-simple for life c. shall be forfeited but the Land entailed shall not during his life But the Answer is plain For in the Reign of R. 2. when the Statute of Praemunire was made Estates Tail were under a Perpetuity by the said Statute de donis which Statute is now much weakened in the Point of Alienation and the Law is quite altered since that time and 't is apparent by multitude of Presidents that such strict Constructions have not been made since that time to preserve Estates Tail from Forfeitures without special and particular Words 4 Co. 164. and therefore in the Case of Adams and Lambert which is a Case in Point the Iudges there construed Estates Tail to be forfeit for want of special Words in the Statute of 1 E. 6. cap. 14. to save it and that was only a Law made for suppressing of superstitious Vses upon a politick consideration but this is a much greater Offence intended to be punished by this Act in which there are demonstrations both from the Words and intent of the Law-makers to make this Estate forfeited to the Crown than in that Case so much relied on And Iudgment was given accordingly Wyld died before Iudgment was given but Iustice Twisden said he was of that Opinion and Jones Iustice concurred Basset versus Salter After an Escape the Plaintiff may have a Ca. Sa. or Sci. Fa. against the Sheriff IN an Action for an Escape the Question was whether the Plaintiff may take out a Ca. Sa. or have a Fi. Fa. against the Defendant after the Sheriff or Gaoler voluntarily suffer him to escape but the Court would not suffer it to be argued because it had been lately settled that it was at the Election of the Plaintiff to do either and upon a Writ of Error brought in the Exchequer-Chamber the Iudges there were of the same Opinion But in the Lord Chief Iustice Vaughan's time the Court of Common Pleas were divided but 't is since settled 1 Roll. Abridg. 901 902. If there be an Escape by the Plaintiffs consent though he did not intend it the Law is hard that the Debt should be thereby discharged as where one was in execution in the Kings Bench and some Proposals were made to the Plaintiff in behalf of the Prisoner who seeing there was some likelyhood of an Accomodation consented to a Meeting in London and desired the Prisoner might be there who came accordingly and this was held to be an Escape with the * If it had been by the consent of the Sheriff he could never take him again but the Plaintiff might Sid. 330. consent of the Plaintiff and he could never after be in Execution at his Suit for the same Matter Peck versus Hill In Communi Banco Bond good given in discharge of another Mod. Rep. 221. DEBT upon a Bond brought against the Defendant as Administrator who pleads that he gave another Bond in his own Name in discharge of the first Bond and upon Issue joined it was found for the Defendant and it was moved that Iudgment might not be entred hereupon because it was a bad Plea But North Chief Iustice and Wyndham and Scroggs Iustices were of Opinion that it was a good Plea because there was other Security given than what the Plaintiff had before for upon the first Bond he was only lyable de bonis Intestatoris but now he might be charged in his own Right Co. Lit. 122. b. which may be well said to be in full satisfaction of the first Obligation for where the Condition is for payment of Mony to the Party himself there if he accept any collateral thing in satisfaction 't is good If a Security be given by a Stranger it may discharge a former Bond and this in effect is given by such And 't is not like the Case in Hobert where a Bond was given by the same Party upon that very day a former Bond was payable and adjudged not a good discharge for the Obligee was in no better condition than he was before Iustice Atkins doubted but inclined that one Bond cannot be discharged by giving another though the Discharge be applied to the Condition of the Bond and for this he cited Cro. Car. 85. Cro. Eliz. 716 727. which was a Case adjudged so in Point and therefore this Plea upon Demurrer should have been over-ruled yet since Issue was taken upon it and a Verdict for the Defendant the Plea is helped by the Statute of Jeofails 32 H. 8. here being a direct Affirmative and Negative But as to that the Chief Iustice and Scroggs Iustice replied that an immaterial Issue no ways arising from the Matter is not helped as an Action of Debt upon a Bond laid to be made in London and the Defendant saith that it was made in Middlesex and this is tried 't is not aided by the Statute but there must be a Repleader But because it was sworn that the Obligor who was the intestate was alive four years after the time that the second Bond was given and for that reason it could not be given upon the accompt of the Defendants being liable as Administrator but must be intended a Bond to secure a Debt of his own therefore a new Trial was granted Cook and others versus Herle Covenant will lie in the personalty tho' the Grant be executed by the Statute of Uses which makes a Distress the proper remedy Mod. Rep. 223. IN Covenant the Case was this Charles Cook made a Iointure to Mary his Wife for life and died without Issue the Land descended to Thomas Cook his Brother and Heir who grants an Annuity or Rent Charge of 200 l. per
Heir Male of the Body of the Devisor had by this Limitation an Estate Tayl as by Purchase and that the Inheritance in Fee simple did not vest in Francis 2. If Thomas the Covenantor had no Estate executed in him yet William his Son in this Case may take by way of future springing use because the Limitation of an Estate upon a Covenant to stand seised may be made to commence after the Ancestors Death for the old Seisin of the Covenantor is enough to support it There is a great difference between a Feoffment to Vses and a Covenant to stand seised for by the Feoffment the Estate is executed presently 1 Co. 154. Rector of Cheddington's Case So if there be a Feoffment to A. for Life Remainder to B. in Fee if A. refuse B. shall enter presently because the Feoffor parted with his whole Estate but if this had been in the Case of a Covenant to stand seised if A. had refused the Covenantor should have enjoyed it again till after the death of A. by way of springing use like the Case of Parsons and Willis 2 Roll. Abr. 794. Where a Man Covenants with B. That if he doth not marry he will stand seised to the use of B. and his Heirs B. dies the Covenantor doth not marry this Vse arises as well to the Heir of B. as to B. himself if he had been living and he shall have the Land in the nature of a descent But if William cannot take it either by purchase or by descent he shall take it 3. Per formam doni as special Heir to Thomas This Case was compared to that in Littleton Sect. 23. If Lands are given to a Man and the heirs Females of his Body if there be a Son the Daughter is not Heir but yet she shall take it for voluntas donatoris c. So if Lands are given to a Man and the Heirs Males of his Body the youngest Son shall have it after the death of the eldest leaving Issue only Daughters for these are descents secundum formam doni So in this Case the Estate Tail vested in Edward and when he died without Issue it comes to William per formam doni Object The Case of Greswold in 4 5 Ph. Mariae Dyer 156. seems to be express against this Opinion which was that Greswold was seised in Fee and made a Grant for Life the Remainder to the Heirs Males of his Body the Remainder to his own right Heirs he had Issue two Sons and dyed the eldest Son had Issue a Daughter and dyed and if the Daughter or her Vncle should have the Land was the question in that Case And it was adjudged that the Limitation of the Remainder was void because Greswold could not make his right Heir a Purchasor without departing with the whole Fee Postea Brittain and Charnock and therefore Iudgment was given against the special Heir in Tail for the Heir general which was the Daughter Answ Admit that Case to be Law yet the Iudges there differed in their Arguments 'T is not like this at Bar for that Case was not upon a Covenant to stand seised but upon a Deed indented and so a Conveyance at the Common Law But for an Authority in the point the Case of Pybus and Mitford was cited and relied on which was Trin. 24 Car. 2. Rot. 703. Mod. Rep. 159. 1 Ventris 372. adjudged by Hales Chief Iustice Rainsford and Wild but Iustice Twisden was of a contrary Opinion Serjeant Stroud who argued on the other side made three Points 1. Whether this Limitation be good in its creation 2. If the Estate Tail be well executed in Thomas the Covenantor 3. If it be good and well executed whether when Edward died without Issue the whole Estate Tail was not spent 1. And as to the first Point he held that this Limitation to the Heirs Males of Thomas was void in the creation because a Man cannot make himself or his own right Heir a Purchasor unless he will part with the whole Estate in Fee Dyer 309 b. If A. being seised in Fee makes a Lease for Life to B. the Remainder to himself for years this Remainder is void so if it had been to himself for Life because he hath an Estate in Fee and he cannot reserve to himself a lesser Estate than he had before 42 Ass 2. If I give Lands to A. for Life the Remainder to my self for Life the Remainder in Fee to B after the death of A. in this Case B. shall enter for the Remainder to me was void 1 H. 5. 8. 42 Edw. 3. 5. Bro. Estate 66. Dyer 69. b. 'T is true these Cases are put at the Common Law but the Statute of Vses makes no alteration for according to the Rules laid down in Chudleigh's Case by my Lord Chief Iustice Popham 1 Co. 138. 1. Vses are odious and so the Law will not favour them 2. A Rule at Common Law shall not be broke to vest an Vse and the Vses here cannot vest without breaking of a Rule in Law 3. Vses are raised so privately that he who takes them may not know when they vest and for that reason they are not to be favoured 4. The Statute annexes both the Possession and the Vse together as they vest and divest both together Moor 713. 2 Co. 91. Co. Lit. 22. Moor 284. 2. As to the second Point The Estate is not executed in Thomas and therefore William cannot take it by descent Heirs of his Body or Heirs Male are good Words of Limitation to take by Purchase from a Stranger but not from an Ancestor for there he shall take by descent and for this there is an Authority Co. Lit. 26. b. John had Issue by his Wife Roberga Robert and Mawd John dies Michael gave Lands to Roberga and to the Heirs of her Husband on her Body begotten Roberga in this Case had but an Estate for Life for the Fee Tail vested in Robert and when he died without Issue his Sister Maud was Tenant in Tail per formam Doni and in a Formedon she counted as Heir to Robert which she was not neither was she Heir to her Father at the time of the Gift yet it was held good for the Words Viz. Heirs of the Body of the Father were Words of Purchase in this Case If therefore no Vse for Life vested in Thomas then William cannot take by descent Dyer 156. Co. Lit. 22. Hob. 31. Dyer 309. 1 Co. 154. Lord Paget's Case cited in Hob. 151. 3. To the third Point Admitting both the former to be against him yet since Edward is dead without Issue the Estate Tail is spent But the whole Court were of Opinion Judgment That William should Inherit this Land in question for though at the Common Law a Man cannot be Donor and Donee without he part with the whole Estate yet 't is otherwise upon a Covenant to stand seised to Vses And if any other Construction should be made
Estate for years and so having no Freehold the Contingent Remainder could not be supported that Mary could not take by way of Executory Devise because Robert was living when his Son Benjamin dyed within Age that therefore 't is quasi a Condition precedent Grant's Case 10 Co. cited in Lampet's Case 1 Leon. 101. There is a difference between Boraston's Case and this at the Barr for that was a Devise to Executors till Hugh shall attain his Age of 21 years and the mean Profits in the mean time to be applyed by them for payment of the Testators Debts and because he might have computed how long it would be before his Debts could be paid therefore it was adjudged that after the death of Hugh within Age the Executors should continue in possession till Hugh might have attained his full Age had he lived and so a present Devise to them But here the Devise is generally till Benjamin Wharton shall attain his Age of 21 years so that nothing vested in him until that time and he dying before then the Estate shall descend to the general Heir who is the Plaintiff 2. Admitting this should be taken as an executory Devise there must be some person capable to take when the Contingency happens and there was no such person in this Case for Robert was alive when Benjamin dyed and Mary could not then take as Heir of his Body for Nemo est haeres viventis like the Case of 2 Cro. 590. Vaugh. 272. Pell and Brown viz. Brown had Issue William and Thomas he devises Land to his youngest Son Thomas and his Heirs and if he dye living William then to William and his Heirs Thomas did dye without Issue living William and it was adjudged that if those Words Living William had been left out of the Will Thomas would have a Fee Tail which he might have docked by a Common Recovery but by reason of those Words he had only a limited Fee because the Words viz. If he dyed without Issue are not indefinite to create a Tail but are restrained to his dying without Issue Living William which is a limited Fee and his Estate being determined William then had a Fee but if he had died before the Contingency happened viz. in the Life time of Thomas and then Thomas had dyed without Issue the Heirs of William would not have an Estate in Fée for the Reasons aforesaid If therefore nothing vested in Benjamin Wharton nor in Mary his Sister then the Land descends to Augustine Smith as Heir at Law to Elizabeth who was Heir to the Testator and so the Plaintiff hath a good Title Ex parte Def. Newdigate Serjeant contra Here is only an Estate for years in the Sister of the Testator and an Estate in Fee presently vested in Benjamin Wharton and he relyed upon Boraston's Case where the Father having Issue Humfry and Henry devised to his Executors till Hugh his Grandson the Son of Henry should be of Age and then to him in Fée it was there adjudged that the Executors had a Term till Hugh might have attained his full Age and that though he dyed at the Age of nine years yet the Remainder did immediately vest in him in possession upon the death of his Grandfather and that by his dying without Issue the Lands did descend to his Brother So here the Fee descends to Benjamin Wharton in possession and he dying without Issue and within Age the Land shall then descend to his Sister and Heir The like Iudgment was given in the Case of Taylor and Wharton about 12 years since and in Dyer 124. a. A Devise to his Wife till his Son shall be of the Age of 24 years then to the Son in Fee and if he die before 24 years without Issue then to the Wife for Life the Remainder to A. c. The Testator dyed 2 Leon. 11. pl. 16. Dyer 354. a. it was adjudged that the Son had a Fee simple presently for an Estate tail he could not have till he was 24 years old and after the death of his Father there was no particular Estate to support that Estate in the Remainder till he should come to the Age of 24 years so that he took by descent immediately So here a Feé vested in Benjamin presently and he being dead within Age Mary may take as Heir however when she is of Age she shall take as Heir of the Body of Robert by way of executory Devise arising out of the Estate of the Devisor Stiles 240. Owen 148. which needs no particular Estate to support it as in case of a Contingent Remainder for before Mary was of Age Robert her Father was dead and so she might well take Trin. 19 Car. 2. in B. R. Snow versus Cutler Rot. 1704. North Chief Iustice Curia Favourable distinctions have béen always admitted to supply the meaning of Men in their last Wills and therefore a Devise to A. till he be of Age then to B. and his Heirs this is an Estate for years in A. with a Remainder in Feé to B And if such a Devise to A. who is also made Executor or for payment of Debts it shall be for a certain Term of years viz. for so long as according to computation he might have attained that Age had he lived Contingent Remainders are at the Common Law and arise upon Conveyances as well as Wills one may limit an Estate to A. the Remainder to another and so it may be by Devise if the intent of the Parties will have it so But as at the Common Law all Contingent Remainders shall not be good so in Wills no such latitude is given as if none could be bad they are subject to the same Fate in Wills as in Conveyances In this Case Elizabeth had a Term till Benjamin Wharton be of Age for she is Executrix she was likewise Heir at Law to the Devisor and this Land had gone to her had it not béen for this Will so that 't is plain the Testator never intended that a Fee-simple should vest in her but somewhere else for he could never intend the Descent of the Inheritance to that person to whom he had devised the Term. It has beén argued that Mary is Heir at Law to Benjamin as well as Heir of the Body of Robert and so if she can take either way 't is good but to make her Heir to Benjamin 't is necessary that the Estate vest in him before he comes to 21 years and for that Boraston's Case was much relyed on which was also said not to differ from this at the Barr that an Estate passes to Benjamin Wharton in praesenti and that there was no Incapacity for Mary to take by way of Executory Devise as was urged on the other side and therefore why should she not take by way of Executory Devise as Heir of the Body of her Father or at least as Heir of Benjamin her Brother An Executory Devise needs no
Heir enters and claims generally it shall be intended as Heir and the words that he shall not molest by Suit or otherwise are to be intended occasione praemissorum 3dly There is no néed of Entry to avoid an Estate in case of a Limitation because thereby the Estate is determined without Entry or Claim and the Law casts it upon the Party to whom it is limited and in whom it vests till he disagrées to it A. devises Land to B. and his Heirs and dies 't is in the Devisee immediately but indeed till Entry he cannot bring a possessory Action as Trespass c. Pl. Com. 412 413. 10 Co. 40. b. where a Possession vests without Entry a Reversion will vest without Claim Nota. Curtis versus Davenant Prohibition A Bishop cannot appoint Commissioners to tax the Parish for building or repairing a Church IN a Prohibition the Question was whether if a Church be out of repair or being so much out of order that it must be re-edified whether the Bishop of the Diocess may direct a Commission to impower Commissioners to tax and rate every Parishioner for the re-edifying thereof The Court did unanimously agree such Commissions were against Law and therefore granted a Prohibition to the Spiritual Court to stop a Suit there commenced against some of the Parishioners of White-Chappel for not paying the Tax according to their proportions It was agréed that the Spiritual Court hath power to compel the Parish to repair the Church by their Ecclesiastical Censures but they cannot appoint what Sums are to be paid for that purpose because the Churchwardens by the consent of the Parish are to settle that As if a Bridge be out of repair the Iustices of Peace cannot set Rates upon the persons that are to repair it but they must consent to it themselves These Parishioners here who contribute to the charge of repairing the Church may be spared but as for those who are obstinate and refuse to do it the Spiritual Court may proceed to Excommunication against them but there may be a Libel to pay the Rates set by the Church-wardens Nurse versus Yearworth in Cancellaria Bill in Cancellaria for the Assignment of a Term. RIchard Yearworth being seised of Lands in Fee makes a Lease to the Defendant Christopher Yearworth for 99 years to such use as by his last Will he should direct Afterward he makes his Will in writing having then no Issue but his Wife grossement enseint and thereby devises the same Land to the Heirs of his Body on the Body of his Wife begotten and for want of such Issue to the said Christopher the Defendant and his Heirs Richard dies and about a month after a Son is born the Son by vertue of this Devise enjoys the Land but when he attains his full age of one and twenty years he suffers a Common Recovery and afterwards devises the Land to the Complainant Nurse and dies The Complainant exhibits a Bill against the Defendant to have the Lease for 99 years assigned to him and whether he should have it assigned or not was the Question 1. It was pretended that an Estate in Fée being limited by the Will to Christopher who was Lessee for 99 years the Term is thereby drowned 2. It was objected that the Devise by Richard to the Infant in ventre la mere was void and then the Complainant who claimed by a Devise from the Posthumus could have no Title but that the Defendant to whom an Estate was limited by the Will of Richard in Remainder should take presently But notwithstanding what was objected the Lord Keeper Finch decréed that the Lease which was in Trust should be assigned to the Complainant Nurse He said that at the Common Law without all question a Devise to an Infant in ventre sa mere of Lands devisable by Custom was good so that the doubt arises upon the Statute of H. 8. Roll. Abr. tit Devise 609. lit H. pl. 2. Godb. 385. 11 H 6. 13. dubitatur which enacts That it shall be lawful for a Man by his Will in writing to devise his Lands to any person or persons for in this Case the Devisée not being in rerum naturâ in strictness of spéech is no person and therefore it hath beén taken that such a Devise is void Moor's Rep. and 't is left as a Quaere in the Lord Dyer 304. But in two Cases in the Common Pleas one in the time when the Lord Chief Iustice Hale was Iudge there the other in the Lord Chief Iustice Bridgman's time it hath been resolved that if there were sufficient and apt words to describe the Infant though in ventre sa mere the Devise might be good But in the King's Bench the Iudges since have been divided upon this Point that as the Law stands now adjudged this Devise in our Case seems not to be good But should the Case come now in question he said he was not sure that the Law would be so adjudged for 't is hard to disinherit an Heir for want of apt Words to describe him and 't is all the reason in the World that a Mans intent lying in extremis when most commonly he is destitute of Council should be favoured Whitrong versus Blaney Process into Wales THIS Term the Court delivered their Opinions in this Case North Chief Iustice who had heard no Arguments herein being absent The Case was this The Plaintiff upon a Iudgment in this Court sues out a Scire facias against the Heir and the Ter-tenants which was directed to a Sheriff of Wales the Defendant is returned Tertenant but he comes in and pleads Non tenure generally and traverses the Return the Plaintiff demurs Two Points were spoke to in the Case 1. Whether the Defendant can traverse the Sheriffs Return And all the three Iustices agreéd that he cannot 2. Whether a Scir̄ Fac̄ Ca. Sa. Fi. Fa. c. would lie into Wales on a Iudgment here at Westminster And they agréed it would well lie An Indictment may be removed 2 Cro. 484. Ellis Iustice agreéd If Iudgment be given in Wales it could not be removed into the Chancery by Certiorari and sent hither by Mittimus and then Execution taken out upon that Iudgment here because such Iudgments are to be executed in their proper Iurisdictions and such was the Resolution of the Iustices and Barons Cro. Car. 34. But on a Iudgment obtained here Execution may go into Wales No Execution can go into the Isle of Man because 't is no part of England but Wales is united to England by the Statute of 27 H. 8. c. 26. And therefore in Bedo and Piper's Case 2 Bulstr 156. it was held that such a * Het 20. 2 Cro. 484. The Opinion of Dodderidge Roll. 395. 2 Sand. 194. Twisden denied it Writ of Execution goes legally into Wales He said he had a Report of a Case in 11 Car. 2. where a Motion was made to quash an Elegit into Wales
and takes notice that this Writ is not returnable into that Court from Wales and therefore orders that the Significavit shall be sent by Mittimus out of the Chancery to the Chief Iustice there and gives them power to make Process to inferior Officers returnable before them at their Sessions for the due Execution of this Writ all which had beén in vain if the Capias might go into Wales before the making this Act. Answ But that is an original Writ and so comes not up to this Case Wyndham Iustice agreed in omnibus and said that the Statute of 1 Ed. 6. was very needful for if a Man should be outlawed if the Process should be sent to the Sheriff of the next adjoining County in England he could not have any notice that he was outlawed and so could not tell when oulawed or at whose Suit Vaughan late Lord Chief Iustice held strongly Vaugh. 395. 2 Saund. 194. that no Execucution would go into Wales when this Case was argued before him and of the same Opinion was Iustice Twisden Williamson versus Hancock Collateral Warranty Mod. Rep. 192. A Special Verdict was found in an Ejectment where the Case was Richard Lock the Father was Tenant for Life with Remainder in Tail to Richard his Son Remainder to the right Heirs of the Father who levies a Fine with Warranty to the use of Susan and Hannah Prinn in Feé they by Bargain and Sale convey their Estate to the Defendant The Son in his Fathers life time before the Warranty attached comes of full age the Father dies The Question was whether the Sons Entry was barred by this collateral Warranty thus discended And the thrée Iustices absente North Chief Iustice were clear of Opinion that the collateral Waranty was a barr to the Son and so Iudgment was given for the Defendant Ellis Iustice held that his Entry is taken away for in every Warranty two things are implied a Voucher and Rebutter he that comes in by Voucher calleth the person into Court who is bound in the Warranty to defend his Right or yield him other Land in recompence and must come in by Privity but if a Man have the Estate though he comes in the Post he may rebut that is he may repel the Action of the Heir by the Warranty of his Ancestor without shewing how the Estate came to him Fitzh Nat. Br. 135. In a Formedon in the Discender to say the Ancestor enfeoffed J.S. with Warranty without shewing how J. S. came by his Estate is good Object It was objected by Serjeant Maynard that no person can take advantage of a Warranty who comes in by way of use as in this Case Answ But 't is expresly resolved otherwise in Lincoln Colledge Case 3 Co. 62. b. and the Prinns in this Case came in by Limitation and Act of the Party and the Defendant who hath the Reversion likewise by Limitation of Vse though he be in the Post shall take benefit of the Warranty as Assignee within the Statute of 32 H. 8. Mod. Rep. 181. c. 34. and so it was resolved in Fowl and Dobles Case in this Court that he who comes in by way of use may rebut and Iustice Jones in his Report fol. 199. affirms the fourth resolution in Lincoln Colledge Case to be Law It was formerly objected by the Lord Chief Iustice Vaughan that this Warranty goes only to the Heirs not to the Assigns and here the Estate was conveyed by the two Prinns before the Warranty attached Answ But when the Estate passeth the Warranty and Covenant followeth and the Assignée shall have the benefit thereof though not named and so is the Authority of 38 E. 3. 26. if a Warranty be made to a Man and his Heirs the Assigneé though not named shall Rebutt but he cannot Vouch. So if A. enfeoff B. with Warranty and B. enfeoff C. without Déed C. shall vouch A. as Assigneé of the Land of B. for the Warranty cannot be assigned In this Case though the Warranty did not attach before the Estate in the Land was transferred yet if it attach afterwards 't is well enough and he who hath the Possession shall Rebutt the Demandant without shewing how he came by the Possession If a Warranty be to one and his Heirs without the word Assigns the Assignée indeéd cannot Vouch but he may * 1 Inst 265. a 384. Rebutt for Rebutter is so incident to a Warranty that a Condition not to Rebutt is void in Law But 't is otherwise of a Condition not to Vouch for in such case you may Rebutt 'T is true it hath béen an Opinion that he who claimeth above the Warranty if it be not attached cannot take benefit of it by way of Voucher or Rebbutter as if Tenant in Dower maketh a Feoffment to a Villain with Warranty and the Lord entreth upon him before the descent of the Warranty the Villain can never take advantage of this Warranty by way of Rebutter because the Lords Title is paramount the Warranty and he cometh not under his Estate to whom the Warranty was made If Land be given to two Brothers in Feé with Warranty to the eldest and his Heirs the eldest dies without Issue the Survivor shall not take benefit by this Warranty for the reason aforesaid But in the Case at Barr the Warranty being collateral and annexed to the Land goeth with the Estate and whilst that continues the Party may Vouch or Rebutt so here the Defendant though he be only Tenant at Will for the Estate is in the Bargainors and their Heirs there being no Execucution of it either by Livery or Enrolment yet he may Rebutt Iustice Atkins was of the same Opinion that by this collateral Warranty the Entry of the Lessor of the Plaintiff was taken away for 't is the nature of a collateral Warranty to be a Barr a * Jones Rep. 199 200. 1 Inst 366 385. 25 H. 6. 63. Bro. Gar. 4. Right is bound by it it extinguishes a Right 't is annexed to the Land and runs with it If then a collateral Warranty be of this nature 't is against all reason that he who is thus bound should make any Title to the Land but 't is very reasonable that he who comes in quasi by that Estate should defend his Title The Opinions of Iustice Jones and Iustice Crook in the Case of * Cro. Car. 368. Spirt and Bence has occasioned this doubt The Case was shortly thus Cann being seised in Fée had thrée Sons Thomas Francis and Henry and devised Lands to the two eldest in Tail and to Henry the Meadow called Warhay which was the Land in question but doth not limit what Estate he should have in it then he adds these Words viz. Also I will that he shall enjoy all Bargains I had of Webb to him and his Heirs and for want of Heirs of his * Notwithstanding the word Body he had but an Estate for Life in Warhay for that
take Bail but the Sheriff himself must do it and therefore an Action on the Case must lye against the Bayliff for not carrying the Party before the Sheriff in order to put in Bail but an Action of false Imprisonment will not lye 2. The action is laid quare vi armis c. in ipsum the Plaintiff insultum fecit ipsum imprisonavit ut Prisonat à tali loco ad talem locum adducebat detinuit contra consuetudinem Angliae sine cause rationabili per spacium trium dierum The Defendant pleaded quoad venire vi armis necnon totam transgressionem praeter the taking and deteining him three days non Culp and as to that he pleaded the Latitat Warrant and Arrest ut supra but the Verdict being only against the Defendant upon the second Issue and nothing appearing to be done upon this and entire Damages given 't is for that reason ill North Chief Iustice If the Writ and Warrant were good then the refusing Bail is an Offence within the Statute of 23 H. 6. And as 't is an Oppression so 't is an Offence also at the Common Law but an Action on the Case and not of false Imprisonment lyeth against the Officer for it would be very unreasonable by the refusal of Bail to make the Arrest tortious ab initio A special Action on the Case had therefore been the proper remedy against the Sheriff but not against the Officer for an Escape will not lye against him but it must be brought against the Sheriff Kren versus Kirby Surrender by a Disseisor not good IN Ejectment the Lessor of the Plaintiff claimed under a Surrender made to him by William Kirby who had an Estate in the Land after the decrease of his Father but entred during his Life and thereby became a Disseisor and his Estate being now turned into a Right he made the Surrender to the Lessor of the Plaintiff all which was found by special Verdict at the Tryal and it was adjudged that the Surrender was void It was pretended at the Trial that the Father who was Tenant for Life had suffered a Common Recovery in the Lords Court and so his Estate was forfeited for which the Son might enter and then his Surrender is good But the Court answered that without a particular Custom for the purpose the suffering a Recovery would work no Forfeiture of the Estate but if it did 't is the Lord and none else who can enter And so Iudgment was given for the Defendant Duck versus Vincent DEBT upon Bond conditioned to perform Covenants Plea to debt upon bond not good one of which was for payment of so much Mony upon making such Assurances The Defendant pleaded he paid the Mony such a day but doth not mention when the Assurance was made that it might appear to the Court the Mony was immediately paid pursuant to the Condition and for that reason the Court were all of Opinion that the Plea was not good And Iudgement was given for the Plaintiff upon Demurrer Smith versus Shelberry IN Assumpsit the Plaintiff declared that he was possessed of a Term of 80 years Assumpsit upon a mutual promise and it was agreed between him and the Defendant that he should assign all his interest therein to the Defendant who proinde should pay 250 l. and that he promised that in consideration that the Plaintiff at his request had likewise promised to perform all on his part that he would also perform all on his part and then sets forth that the Defendant had paid a Guinea in part of the said 250 l. and that he viz. the Plaintiff obtulit se to assign the Premisses by Indenture to the Defendant which was written and sealed and woud have delivered it to him but he refused and assigns the breach in Non-payment of the Mony to which the Defendant demurred And it was said for him by Baldwin Serjeant Ex parte Def. that this was not a good Declaration because the Assignment ought to precede the Payment and that it was not a mutual promise neither was the obtulit se well set forth but this was a Condition precedent on the Plaintiffs side without the performance whereof no Action would lie against the Defendant Vide 7 Co. Ughtreds Case fol. 10. b. because it was apparent by the Plaintiffs own shewing that the Mony was not to be paid till the Assignment made for the Plaintiff is to assign and the Defendant proinde which is as much as to say pro assignatione is to pay the Mony Like the Case in Dyer 76. a. Assumpsit against the Defendant that he promised pro 20 Marks to deliver 400 Weight of Wax to the Plaintiff the Pronoun Pro makes the Contract conditional Ex parte Quer. But Pemberton Serjeant for the Plaintiff held the Declaration good and that it was a mutual promise and that the Plaintiff need not averr the performance Hill Thorn Postea for in such Cases each has remedy against the other and 't is as reasonable that the Plaintiff should have his Mony before he make the Assignment as that the Defendant should have the Term assigned before he paid the Mony And of that Opinion was the Court only Iustice Atkins doubted Ellis Iustice cited a Case adjudged in the King's Bench which was as he thought Stiles Rep. 186 Postea very hard viz. An Assignment was made between A. and B. that A. should raise Souldiers and that B. should transport them beyond Sea and reciprocal promises were made for the performance as in this Case that A. who never raised any Souldiers may yet bring his Action upon this promise against B. for not transporting them which is a far stronger Case than this at Barr. It was agréed here that the Tender and Refusal had it beén well pleaded would have amounted to and have been equivalent with a full performance but the Plaintiff hath not done as much as he might for he should have delivered the Indenture to the Defendants use and then have tendered it But Iudgment was given for the Plaintiff Hays versus Bickerstaffe Covenant not conditional by the words paying and performing IN Covenant brought by the Lessee who declared that the Lessor covenanted with him that he paying the Rent and performing the Covenants on his part to be performed shall quietly enjoy The breach assigned was a disturbance by the Lessor who pleads that till such a time the Plaintiff did quietly enjoy the thing demised without disturbance but then he cut down Wood which was contrary to his Covenant and then and not before he entred and so by the Plaintiffs not performing his Covenant the Defendants Covenant ceases to oblige him whereunto the Plaintiff demurred The Question was Whether the Defendants Covenant was conditional or not For if it amount to a Condition then his Entry is lawful but if it be a Covenant 't is otherwise for then he
by Serjeant Jones that they should not pass for though Lands would pass so by a Fine because it was the Agreement of the Parties yet in a Recovery 't is otherwise because more certainty is required therein But in Fines no such Certainty is required and therefore a Fine de Tenementis in Golden-Lane hath beén held good though neither Vill Parish or Hamlet is mentioned Cro Eliz. 693. Cro. Jac. 574. Addison and Ottoway Postea But there being a Vill called Walton in the Parish of Street and a Fine being levyed of Land in Street the Lands in Walton did not pass unless Walton had béen an Hamlet of Street and the Fine had beén levied of Lands in the Parish of Street And the reason of this difference is because in Fines there are Covenants which though they are real in respect of the Land yet 't is but a personal Action in which the Land is not demanded ex directo but in a Recovery greater preciseness is required that being a Praecipe quod reddat where the Land it self is demanded and the Defendant must make Answer to it Cro. Jac. 574 5 Co. 40. Dormer's Case The Word * Antea 41. Liberty properly signifies a Right Priviledge or Franchise but improperly the extent of a place Hill 22 23 Car. 2. Rot. 225. B. R. Waldron's Case Hutton 106. Baker and Johnson's Case Liberties in Iudgment of Law are incorporeal and therefore 't is absurd to say that Lands which are corporeal shall be therein contained They are not permanent having their existence by the Kings Letters Patents and may be destroyed by Act of Parliament they may also be extinguish'd abridged or increased and a Vinire fac of a * Rast Ent. 267. Liberty or Franchise is not good 't is an equivocal Word and of no signification that is plain and therefore is not to be used in real Writs Rast Entr. 382. There is no Praecipe in the Register to recover Lands within a Liberty neither is there any authority in all the Law Books for such a Recovery and therefore if such a thing should be allowed many inconveniences would follow for a good Tenant to the Praecipe would be wanting and the intent of the Parties could not supply that But Barton Serjeant said that this Recovery would pass the Lands in Cotton for as to that purpose there was no difference betweén a Fine and a Recovery Postea 2 Roll. Abr. 20 Godb. 440. they are both become Common Assurances and are to be guided by the agreément of the Parties Cro. Car. 270 276. 'T is true a Fine may be good of Lands in an Hamlet Lieu conus or Parish 1 H. 5. 9. Cro. Eliz. 692. Jones 301. Cro. Jac. 574. Monk versus Butler Yet in a * Godb. 440. contra Scire Fac̄ to have Execution of such Fine the Vill must be therein mentioned Bro. Brief 142. The demand must be of Lands in a Vill Hamlet or at farthest in a Parish Cro. Jac. 574. And of that Opinion was the whole Court absente Ellis who was also of the same Opinion at the Argument and accordingly in Michaelmas Term following Iudgment was given that by this Recovery the Lands in Cotton did well pass And North Chief Iustice denied the Case in Hutton 106. Postea to be Law where 't is said A Common Recovery of Lands in a Lieu conus is not good and said that it had béen long disputed whether a Fine of Lands in a Lieu conus was good and in King James his time the Law was settled in that Point that it was good and by the same reason a Recovery shall be good for they are both amicable Suits and Common Assurances and as they grew more in practice the Iudges have extended them farther A Common Recovery is held good of an Advowson and no Reasons are to be drawn from the Visne or the Execution of the Writ of Seisin because 't is not in the Case of adversary Procéedings but by Agréement of the Parties where 't is to be presumed each knows the others meaning Indeed the Cursitors are to blame to make the Writ of Entry thus and ought not to be suffered in such practice Where a Fine is levied to two the Fée is always fixed in the Heirs of one of them but if it be to them and their Heirs yet 't is good though incertain but a Liberty is in the nature of a Lieu conus and may be made certain by Averment The Iury in this Case have found Cotton to be a Vill in the Liberty of Shrewsbury and so 't is not incorporeal Alford versus Tatnel JVdgment against two who are both in Execution Mod. Rep. 170. and the Sheriff suffers one to escape the Plaintiff recovers against the Sheriff and hath satisfaction the other shall be discharged by an Audita Querela Osbaston versus Stanhope General Replication good DEBT upon Bond against an Heir who pleaded that his Ancestor was seised of such Lands in Fee and made a Settlement thereof to Trusteés by which he limited the Vses to himself for Life Remainder to the Heirs Males of his Body Remainder in Feé to his own right Heirs with power given to the Trusteés to make Leases for threé Lives or 99 years The Trustées made a Lease of these Lands for 99 years and that he had not Assets praeter the Reversion expectant upon the said Lease The Plaintiff replies protestando that the Settlement is fraudulent pro placito saith that he hath Assets by discent sufficient to pay him and the Defendant demurrs Ex parte Def. Newdigate Serjeant The Barr is good for the Plaintiff should not have replied generally that the Defendant hath Assets by discent but should have replyed to the praeter Hob. 104. Like the Case of Goddard and Thorlton Yelv. 170. where in Trespas the Defendant pleaded that Henry was seised in Fee who made a Lease to Saunders under whom he derived a Title and so justifies The Plaintiff replies and sets forth a long Title in another person and that Henry entred and intruded The Defendant rejoyns that Henry was seised in Fée and made a Lease ut prius absque hoc that intravit se sic intrusit and the Plaintiff having demurred because the Traverse ought to have been direct viz. absque hoc quod intrusit and not absque hoc that Henry intravit c. it was said the Replication was ill for the Defendant having alledged a Seisin in Fée in Henry which the Plaintiff in his Rejoynder had not avoided but only by supposing an intrusion which cannot be of an Estate in Fée but is properly after the death of Tenant for Life for that reason it was held ill Ex parte Quer. But Pemberton Serjeant for the Plaintiff held the Replication to be good The Defendants Plea is no more than Riens per descent for though he pleads a Reversion 't is not chargeable because 't is a Reversion after
an Estate Tail and therefore the pleading the Lease is not material for if it were a Lease expired yet the Plaintiff could not recover and therefore the praeter is wholly idle and insignificant of which the Plaintiff ought not to take notice because the Lands which come under the praeter are not chargeable The Plaintiff hath traversed as he ought what is material and is not bound to take notice of any thing more And of that Opinion was the whole Court and held the praeter idle and the general Replication good and Iudgment was given for the Plaintiff Prince versus Rowson Executor of Atkinson EXecutor de son tort cannot retain Executor de son tort cannot retain The Defendant in this Case pleaded that the Testator owed his Wife dum sola 800 l. and that he made his Will but doth not shew that he was thereby made Executor and therefore having no Title he became Executor de son tort for which cause his Plea was held ill and Iudgment was given for the Plaintiff Norris versus Palmer THE Plaintiff brought an Action on the Case against the Defendant for causing him falso malitiose to be indicted for a Common Trespass in taking away one hundred Bricks Case after an acquittal upon an Indictment for Trespas by which means he was compelled to spend great Sums of Mony and that upon the Trial the Iury had acquitted him The Defendant demurred to the Declaration and Barrel Serjeant said for him that the Action would not lie and for a President in the Case he cited a like Iudgment between Langley versus Clerk in the King's Bench Trin. 1658. 2 Sid. 100. In which Action the Plaintiff was indicted for a Battery with an intent to ravish a Woman and being acquitted brought this Action and the Court after a long Debate gave Iudgment for the Plaintiff but agréed that the Action would not lie for a Common Trespass as if it had beén for the Battery only but the Ravishing was a great scandal and for that reason the Plaintiff recoverd there but this is an ordinary Trespass and therefore this Action will not lie But Pemberton Serjeant held that the Action would lie because it was in the nature of a Conspiracy Sid. 463 464. 1 Cro. 291. and done falsly and malitiously knowing the contrary and thereby the Plaintiff was put to great Charges all which is confessed by the Demurrer And the Case cited on the other side is express in the Point for the Court in that Case could take notice of nothing else but the Battery for the intent to ravish was not traversable and therefore it was idle to put it into the Indictment It is now settled that an Action on the Case will lye for a malitious Arrest where there is no probable cause of Action and this Case is stronger than that because in the one the party is only put to Charges and in the other both to Charges and Disgrace for which he hath no remedy but by this Action The Court agreéd that the Action would lie after an acquittal upon an Indictment for a greater or lesser Trespass The like for citing another into the Spiritual Court without cause 3 Ass 13. 1 Rol. Abr. 112. pl. 9. Postea F. N. B. 116. D. 7 E. 4. 30. 10 H. 4. Fitz. Conspiracy 21. 13. 3 E. 3. 19. The Defendants Council consented to wave the Demurrer and plead and go to Tryal The King versus Turvil The King presented being intituled by a Simoniacal Contract his Presentee shall not be removed though the Symony is pardoned QUare Impedit The King was intituled to a Presentation by the Statute of 31 Eliz. cap. 6. because of a Simoniacal Contract made by the rightful Patron and he accordingly did present Then comes the Act of General Pardon 21 Jac. cap. 35. by which under general Words it was now admitted that Symony was pardoned In which Act there is a beneficial Clause of Restitution viz. The King giveth to his Subjects all Goods Chattels Debts Fines Issues Profits Amerciaments Forfeitures and Sums of Mony forfeited by reason of any Offence c. done And whether the Kings Presenteé or the Patron had the better Title was the Question This Case was only mentioned now but argued in Michaelmas Term following by Serjeant Jones that the Kings Presenteé is intituled he agreed that Symony was pardoned but not the consequences thereof for 't is not like the Case where a Stroak is given at one time and death happens at another if the Stroak which is the first offence is pardoned before the death of the party that is a Pardon likewise of the Felony for 't is true the Stroak being the cause of the death and that being pardoned all the natural Effects are pardoned with the Cause But legal Consequences are not thus pardoned as if a Man is outlawed in Trespass and the King pardons the Outlawry the Fine remains 6 E. 4. 9. 8 H. 4. 21. 2 Roll. Abr. 179. In this Act of Pardon there are words of Grant but the Presentation is not within the Clause of Restitution for 't is an Interest and not an Authority vested in the King and therefore a thing of another nature than what is intended to be restored because it is higher and shall not be comprehended amongst the general words of Goods and Chattels c. which are things of a lower nature and are all in the personality Cro. Car. 354. Conyers Serjeant argued for the Title of the Patron Ex parte Def. and said that there were three material Clauses in this Act. 1. A Pardon of the Offences therein mentioned in general and particular words 2. That all things not excepted shall be pardoned by general words as if particularly named 3. The Pardon to be taken most favourably for the Subject upon which Clauses it must necessarily follow that this Offence is pardoned and then all the consequences from thence deduced will be likewise pardoned and so the Patron restored to his Presentation for all Charters of Restitution are to be taken favourably Pl. Com. 252. The Presentation vests no legal Right in the Presentee for in the Case of the King 't is revocable after Institution and before Induction Co. Lit. 344. b. So likewise a second Presentation will repeal the first Rolls 353. And if the Kings Presentee dies before Induction that is also a Revocation if therefore the Party hath no legal Right by this Presentation and the King by the Simony had only an authority to present and no legal Interest vested then by this Act he hath revoked the Presentation and the right Patron is restored to his Title to present The Court were all of Opinion absente Ellis That the Kings Presentee had a good Title and by consequence the Patron had no right to Present this turn for here was an Interest vested in the King like the Case where the King is intituled to the Goods of a Felo
year before the Sale After Verdict for the Plaintiff it was moved in arrest of Iudgment by Serjeant Barrell because the Information had set forth the right of these Lands purchased to be in J. S. and that the Son of J. N. had conveyed them by general words 2 Anders 57. as descending from his Father which Title of the Son the Defendant bought whereas if in truth the Title was in J. S. then nothing descended from the Father to the Son and so the Defendant bought nothing Sed non allocatur for if such construction should be allowed there could be no buying of a pretended Title within the Statute unless it was a good Title but when 't is said as here that the Defendant entred and claimed colore of that Grant or Conveyance which was void yet 't is within the Statute so the Plaintiff had his Iudgment Wine versus Rider al. TRespass against five Quare clausum fregerunt Traverse immaterial and took Fish out of the Plaintiffs Several and Free-Fishery Four of them pleaded Not Guilty and the fifth justified for that one of the other Defendants is seised in Fee of a Close adjoyning to the Plaintiffs Close and that he and all those c. have had the sole and separate Fishing in the River which runs by the said Closes with liberty to enter into the Plaintiffs Close to beat the Water for the better carrying on of the Fishing and that he as Servant to the other Defendant and by his Command did enter and so justified the taking absque hoc that he is Guilty aliter vel alio modo The Plaintiff replies That he did enter de injuria sua propria absque hoc That the Defendants Master hath the Sole Fishing The Defendant demurs Ex parte Def. and Newdigate Serjeant argued for him That the Iustification is good for when he had made a local justification 2 Cro. 45 372. he must traverse both before and after as he has done in this Case 2. The Plaintiffs Replication is ill for he ought not to have waved the Defendants Traverse and force him to accept of another from him because the first is material to the Plaintiffs Title and he is bound up to it Hob. 104. 3. There was no occasion of a Traverse in the Replication for where a Servant is Defendant de injuria sua propria is good with a Traverse of the Command Ex parte Quer. But on the Plaintiffs side Serjeant Baldwin held the Defendants Traverse to be immaterial for having answered the Declaration fully in alledging a Right to the sole fishing and an Entry into the Plaintiffs Close 2 Cro. 372. 't is insignificant afterwards to traverse that he is guilty aliter vel alio modo Then the matter of the Plea is not good because the Defendant justifies by a Command from one of the other Defendants who have all pleaded Not-guilty and they must be guilty if they did command him for a Command will make a Man a Trespasser Curia The Court were all of Opinion that Iudgment should be given for the Plaintiff For as to the last thing mentioned which was the Matter of the Plea they held it to be well enough for the * Mires and Solebay Post Servant shall not be ousted of the advantage which the Law gives him by pleading his Masters Command Then as to the Replication 't is good and the Plea is naught with the Traverse for where the Iustification goes to a time and place not alledged by the Plaintiff there must be a Traverse of both In this Case the Defendant ought to have traversed the Plaintiffs free fishing as alledged by him in his Declaration which he having omitted the Plea for that reason also is ill and so Iudgment was given for the Plaintiff DE Termino Paschae Anno 28 Car. II. in Communi Banco Lee versus Brown IN a Special Verdict in Ejectment The Case was this Where reputed Lands shall pass under general words viz. There were Lands which re vera were not parcel of a Mannor and yet were reputed as parcel A Grant is made of the Mannor and of all Lands reputed parcel thereof and whether by this Grant and by these general Words those Lands would pass which were not parcel of the Mannor was the Question This Term the Lord Chief Iustice delivered the Opinion of the Court That those Lands would pass Postea Cro. Car. 308. and they grounded their Opinions upon two Authorities in Co. Entr. fol. 330 384. The King versus Imber Wilkins If the Iury had found that the Lands in question had beén reputed parcel of the Mannor it would not have passed had they found no more because the Reputation so found might be intended a Reputation for a small time so reputed by a few or by such as were ignorant and unskilful But in this Case 't is found that not only the Lands were reputed parcel but the reason why they were reputed parcel for the Iury have found that they were formerly parcel of the Mannor and after the division they were again united in the possession of him who had the Mannor which being also Copyhold have since béen demised by Copy of Court Roll togethet with the Mannor and these were all great marks of Reputation and therefore Iudgment was given that the Lands did well pass 2 Roll. Abr. 186. Dyer 350. Wakeman versus Blackwel Common Recoveries how to be pleaded QUare Impedit The Case was The Plaintiff entituled himself to an Advowson by a Recovery suffered by Tenant in Tail in pleading of which Recovery he alledges two to be Tenants to the Praecipe but doth not shew how they came to be so or what Conveyance was made to them by which it may appear that they were Tenants to the Praecipe and after search of Presidents as to the form of pleading of Common Recoveries the Court inclined that it was not well pleaded but delivered no Iudgment Searl versus Bunion Justification where good IN Trespass for taking of his Cattel The Defendant pleads that he was possessed of Blackacre pro termino diversorum annorum adtunc adhuc ventur̄ and being so possessed the Plaintiffs Cattle were doing damage and he distrained them Damage fesant ibidem and so justifies the taking c. The Plaintiff demurrs and assigns specially for cause that the Defendant did not set forth particularly the commencement of the Term of years but only that he was possessed of an Acre for a Term of years to come and regularly where a Man makes a Title to a particular Estate in pleading he must shew the particular time of the Commencement of his Title that the Plaintiff may replie to it Curia The Chief Iustice and the whole Court held that the Plea was good upon this difference where the Plaintiff brings an Action for the Land or doing of a Trespass upon the Land he is supposed to be in possession
but if he will justifie by vertue of any particular Estate he must shew the Commencement of that Estate and then such pleading as here will not be good But when the Matter is * Yelv. 75. Cro. Car. 138. collateral to the Title of the Land and for any thing which appears in the Declaration the Title may not come in question such a Iustification as this will be good In this Case no Man can tell what the Plaintiff will reply 't is like the Cases of Inducements to Actions which do not require such certainty as is necessary in other Cases So where an Action is brought for a Nusance and he intitles himself generally by saying he is possessionat ' pro termino annorum 't is well enough and he need not to set forth particularly the Commencement because he doth not make the Title his Case for which reason Iudgment was given for the Defendant Crosier versus Tomlinson Executor IN an Action on the Case Statute of Limitations of personal Actions extends to Indebitatus Assumpsit The Plaintiff declared that the Defendants Testator being in his Life time viz. such a day indebted to the Plaintiff in the Sum of 20 l. for so much Mony before that time to his use had and received did assume and promise to pay the same when he should be thereunto required and that the Testator did not in his Life time nor the Defendant since his death pay the Mony though he was thereunto required The Defendant pleads that the Testator did not at any time within six years make such promise The Plaintiff replies that he was an Infant at the time of the promise made and that he came not to full Age till the year 1672. and that within six years after he attained the Age of one and twenty years he brought this Action and so takes advantage of the promise in the Statute of * 21 Jac. c. 16. Limitations that the Plaintiff shall have six years after the disability by Infancy Coverture c. is removed And the Defendant demurred by Serjeant Rigby Ex parte Def. and the reason of his Demurrer was because in the said Proviso Actions on the Case on Assumpsit are omitted This Act was made for quieting of Estates and avoiding of Suits as appears by the Preamble and therefore shall be taken strictly there is an enumeration of several Actions in the Proviso and this is Casus omissus and so no benefit can be taken of the Proviso In a Writ of Error upon a Iudgment brought 4 Car. 1. in the Court of Windsor the Iudges held that an Action on the Case for * Cro. Car. 163 513 535. Debt upon Escape is out of the Statute 1 Sand 37. But an Action for Escape is not Sid. 305. So is Debt for not setting out of Tithes for these are not grounded upon any Contract Cro. Car. 513. Hut 109. slandering of a Mans Title is out of this Act because such an Action was rare and not brought without special damages But Hide Chief Iustice doubted 1 Cro. 141. The Law-makers could not omit this Case unadvisedly because 't is within those sorts of Actions enumerated by this Act. This Promise was made to the Plaintiff when he was but a day old and it would be very hard now after so many years to charge the Executor Ex parte Quer. But Turner Serjeant argued that though an Indebitat̄ assumpsit is not within the express words of the Proviso yet 't is within the intent and meaning thereof and so the Rule is taken in 10 Co. 101. in Bewfages Case quando verba statuti sunt specialia ratio autem generalis statutum intelligendum est generaliter And this is a Statute which gives a general remedy and the mischief to the Infant is as great in such Actions of Indebitatus assumpsit as other Actions and therefore 't is but reasonable to intend that the Parliament which hath saved their Rights in Debts Trovers c. intended likewise that they should not be barred in an Indebitatus Assumpsit In 2 Anders 55. Smith versus Colshil Debt was brought upon a Bond the Defendant there pleaded the Statute of the 5 E. 6. of selling of Offices the words of which are viz. That every Bond to be given for money or profit for any Office or Deputation of any Office mentioned in the Statute shall be void against the Maker In that case the Bond was given to procure a Grant of the Office and also to exercise the same now though this was not within the express words of the Statute yet the Bond was held void and if it should be otherwise the mischiefs which the Statute intended to remedy would still continue and therefore the intent of the Law-makers in such cases is to be regarded for which reason if Actions of Indebitatus Assumpsit are within the same mischief with other Actions therein mentioned 2 Anders 123 150. Cor. Car. 533. 19 H. 8. 11. such also ought to be construed to be within the same remedy But he took the Case of * Cro Car. 245. Swain versus Stephens to rule this Case at Bar in which Case this very Statute was pleaded to an Action of Trover and the Plaintiff replied that he was beyond Sea and upon a Demurrer to the Replication the Court held Trover to be within the Statute it being named in the Paragraph of Limitation of personal Actions which directs it to be brought within the time therein limited that is to say all Actions on the Case within six years and then enumerates several other Actions amongst which Trover is omitted yet the Court were then of Opinion that Trover is implied in those general words Curia And of that Opinion was the Chief Iustice and Wyndham and Atkyns Iustices That upon the whole frame of the Act it was strong against the Defendant for it would be very strange that the Plaintiff in this Case might bring an Action of Debt and not an Indebitatus Assumpsit When the Scope of an Act appears to be in a general sense the Law looks to the meaning and is to be extended to particular Cases within the same reason and therefore they were of Opinion That Actions of Trespass mentioned in the Statute are comprehensive of this Action because 't is a Trespass upon the Case and the words of the Proviso save the Infants Right in Actions of Trespass And therefore though there are not particular words in the enacting Clause which relate to this Action yet this Proviso restrains the severity of that Clause and restores the Common Law and so is to be taken favourably and this Action being within the same reason with other Actions therein mentioned ought also to be within the same remedy But Iustice Ellis doubted whether Actions of Trespass could comprehend Actions on the Case and that when the Parliament had enumerated Actions of Trespass Trover Case for Words c. If they had intended
Authorities with great exactness and nicety yet this Matter of Livery upon Endorsements of Writing was always favourably expounded of later times unless where it plainly appeared that the Authority was not pursued at all Sid. 428. as if a Letter of Attorney be made to thrée joyntly and severally two cannot execute it because they are not the Parties delegated they do not agreé with the Authority And Iudgment was given accordingly Richards versus Sely. THIS was a Special Verdict in Ejectione firmae for Lands in the County of Cornwal The Case was this viz. Covenant made to enjoy a Copy-hold de anno in annum 't is a Lease and so a Forfeiture Thomas Sely was seised of the Lands in question for life according the Custom of the Mannor of P. and he together with one Peter Sely were bound in a Bond to a third person for the payment of 100 l. being the proper Debt of the said Thomas who gave Peter a Counter-bond to save himself harmless And that Thomas being so seised did execute a Déed to Peter as a Collateral Security to indempnifie him for the payment of this 100 l. by which Deéd after a recital of the Counterbond given to Peter and the Estate which Thomas had in the Lands he did covenant grant and agree for himself his Executors Administrators and Assigns with the said Peter that he his Executors and Administrators should hold and enjoy these Lands from the time of the making of the said Déed for seven years and so from the end of seven years to seven years for and during the term of 49 years if Thomas should so long live 2 Cro. 301. In which Déed there was a Covenant that if the said 100 l. should be paid and Peter saved harmless according to the Condition of the said Counterbond then the said Déed to be void The Question was whether this being in the Case of Copyhold Lands will amount to a Lease thereof and so make a Forfeiture of the Copyhold Estate there being no Custom to warrant it Ex parte Quer. This Case was argued this Term by Serjeant Pemberton for the Plaintiff and in Trinity Term following by Serjeant Maynard on the same side who said that this was not a good Lease to entitle the Lord to a Forfeiture It hath béen a general Rule that the Word Covenant will make a Lease though the Word Grant be omitted nay a Licence to hold Land for a time without either of those Words will amount to a Lease much more when the Words are to * 2 Cro. 92 398. Noy 14. 1 Roll. Abr. 848 849. Cro. Car. 207. have hold and enjoy his Land for a Term certain for those are Words which give an Interest and so it hath béen ruled in Tisdale and Sir William Essex's Case which is reported by several and is in Hob. 35. and 't is now setled that an Action of Debt may be brought upon such a Covenant And all this is regularly true in the Case of a Fréehold But if the construing of it to be a Lease will work a Wrong then 't is only a Covenant or Agreément and no Interest vests and therefore it shall never be intended a Lease in this Case because 't is in the Case of a Copyhold Estate for if it should there would be a Wrong done both to the Lessor and Lessée for it would be a Forfeiture of the Estate of the one and a defeating of the Security of the other It has beén generally used in such Cases to consider what was the intention of the Parties and not to intend it a Lease against their meaning for which there is an express Authority 2 Cro. 172. in the Case of Evans and Thomas Noy 128. in which Howel covenants with Morgan to make a Conveyance to him of Land by Fine provided that if he pay Morgan 100 l. at the end of thirtéen years that then the use of the Fine shall be to the Congnisor and covenants that Morgan shall enjoy the said Lands for thirtéen years and for ever after if the 100 l. be not paid The Assurance was not made and this was adjuged no Lease for thirtéen years because it was the intent of the Parties to make an Assurance only in the nature of a Mortgage which is but a Covenant And this appears likewise to be the intention of the Parties here because in the very Deed 't is recited that the Lands are Copihold It also sounds directly in Covenant for 't is that Peter shall or may enjoy without the lawful let or interruption of the Lessor All Agreements must be construed secundum subjectam materiam if the Matter will bear it and in most Cases are governed by the intention of the Parties and not to work a Wrong and therefore if Tenant in Tail makes a Lease for Life it shall be taken for his own Life and yet if before the Statute of Entails he made such Lease he being then Tenant in Fée-simple it had been an Estate during the Life of the Lessée but when the Statute had made it unlawful for him to bind his Heir then the Law construes it to be for his own Life because otherwise it would work a Wrong Hob. 276. Co. Lit. 42. So in this case it shall not amount to a Lease for the manifest inconveniency which would follow but it shall be construed as a Covenant and then no injury is done On the Defendants part it was argued by Serjeant Newdigate that though this was in the Case of a Copyhold Ex parte Def. that did not make any difference for the plain meaning of the Parties was to make a Lease But where the Words are doubtful and such as may admit of diverse constructions whether they will amount to a Lease or not there they shall be taken as a Covenant to prevent a Forfeiture So also if they are only Instructions as if a Man by Articles sealed and delivered is contented to demise such Lands and a Rent is reserved and Covenants to repair c. Or if one covenants with another to permit and suffer him to have and enjoy such Lands 1 Rol. Abr. 848. these and such like Words will not amount to a Lease because as hath béen said the intention of the Parties is only to make it a Covenant but here the Words are plain and can admit of no doubt But for an Authority in the Point the Lady * 2 Cro. 301. Mountagues Case was cited where it was adjudged that if a Copyholder make a Lease for a year warranted by the Custom sic de anno in annum during ten years 't is a good Lease for ten years and a Forfeiture of the Copyhold Estate Vide Hill 15 16 Car. 2. Rot. 233. the Case of Holt and Thomas in this Court The Court inclined that it was a good Lease Curia and by consequence a Forfeiture of the Copihold and that a Licence in this
Trusteés therein named are appointed to sell it for payment of Debts and raising this Portion by which Act all Conveyances made by old Sir Robert Carr since the year 1639. are made void except such as were made upon valuable considerations but all those made by him before the said year with power of revocation if not actually revoked are saved and in the year 1636. he had executed a Conveyance by which he had made a Settlement of his Estate in Tayl with a power of revocation but it did not appear that he did ever revoke the same The greatest part of the Lands appointed by this Act of Parliament to be sold by the Trustees are the Lands comprised in that Settlement and now after the death of Sir Robert Carr the Plaintiff exhibits his Bill against the Son not knowing that such a Settlement was made in the year 1636. till the Defendant had set it forth in his Answer and by this Bill he desires that the Trustees may execute their Trust c. and that he may have relief On the Defendants side it was urged Ex parte Def. that after the Marriage there was a Bond given for an additional Ioynture and it was upon that account that the Defendant was drawn in to execute these Articles And if the very reason and foundation of his entring into them failed then they shall not bind him in Equity and in this Case it did fail because the Plaintiff had disabled himself to make any other Ioynture by a Pre-conveyance made and executed by him of his whole Estate and if this agreement will not bind him then this Court cannot enlarge the Plaintiffs remedy or appoint more than what by the Articles is agreed to be done neither can the Defendants sealing incumber the Estate Tayl in Equity because the Lands were not then in him his Father being Tenant in Tayl and then living and the subsequent descent by which the Lands are cast upon him alters not the Case for the very right which descends is saved by the Act from being charged But on the other side it was argued that though the Marriage did proceed upon the Defendants sealing yet the Assurance which was to be made was a principal Motive thereunto and it being agreed before Marriage though not executed it was very just that he should Seal afterwards and though the additional Ioynture was not made yet there was no colour that the Defendant should break his Articles for that reason because if the Bond be not performed 't is forfeited and may be sued and nothing appeared in the case of any Conveyance made by Sir Francis whereby he had disabled himself to make an additional Ioynture and he hath expresly denied it upon his Oath And though it was was objected that the Money was raised by the old Lady Carr and by the direction of the Trustees lodged in the hands of one Cook who is become insolvent It was answered that there was no proof of the consent of the Trustees and therefore this payment cannot alter the case After the matter thus stated the Lord Chancellor delivered his Opinion That the 6000 l. is doe to the Plaintiff unpaid and unsatisfied for though the Marriage had not taken effect yet the Covenant binds the Defendant because a Deed is good for a Duty without any consideration 2. The Plaintiff has remedy against the person of the Defendant at Law for this 6000 l. 3. He has remedy against such of the Defendants Lands which are not comprised in the Settlement made 1636. for as to them the Trustees may be enjoyned to execute the Trust And he desired the Opinions of the two Iustices if any thing more could be done in this case Iustice Windham was of Opinion that nothing more could be done but to make a Decree to enforce the execution of the Trust And Iustice Wild said that the Plaintiff has his remedy at Law against the Defendant and upon the Act of Parliament against the Trustees but upon these Articles no Decree could be made to bind the Lands for that would be to give a much better security than the Parties had agreed on But if there had been a Covenant in the Articles that a Fine should be levied it might have been otherwise 't is only that a Fine is intended to be levied But as to that the Lord Chancellor was of Opinion that it was a good Covenant to levy a Fine for the words Articles of Agreement c. go quite through and make that Clause a Covenant but because Iustice Wild was of another Opinion he desired the Attorny General to argue these three Points 1. Whether this was a Covenant to levy a Fine or not 2. If it was a Covenant whether this Court can decree him to do it for though the Party has a good remedy at Law yet whether this Court might not give remedy upon the Land 3. If it was a Covenant to levie a Fine and the Court may decree the Defendant to do it yet whether such a Decree can be made upon the prayer of this Bill it not being particularly prayed for the Plaintiff concluded his Bill with praying relief in the execution of the Trust c. In Trinity-Term following these Points were argued by Serjeant Maynard Sir John Churchil and Sir John King for the Plaintiff Mr. Attorny and Mr. Solicitor and Mr. Keck for the Defendant all in one day and in the same order as named The Councel for the Defendant urged Ex parte Def. that this was no Covenant in Law to enforce the Defendant to levy a Fine 'T is agreéd that there is no need of the word Covenant to make a Covenant but any thing under the Hand and Seal of the Parties which imports an Agreement will amount to a Covenant so in 1 Roll. Abr. 518. these words in a Lease for years viz. That the Lessee shall repair make a Covenant so in the Case of Indentures of Apprentiship there are not the formal words of a Covenant but only an Agreement that the Master shall do this and the Apprentice shall do that and these are Covenants but in all these Cases there is something of an undertaking as in 1 Roll 519. Walker versus Walker If a Deed be made to another in these words viz. I have a Writing in my custody in which W. standeth bound to B. in 100 l. and I will be ready to produce it This is a Covenant for there is a present engaging to do it but there are no such words here 't is only a recital That whereas a Fine is intended to be levied to such Uses c. 'T is only Introductive to another Clause without positive or affirmative words and therefore can never be intended to make a Covenant but are recited to another purpose viz. To declare the Use of a Fine in case such should be levied If Articles of Agreement are executed in consideration of an intended Marriage and one side Covenants to do one
any other thing which lies in Grant and the Deed is lost or cancelled the Office or the thing granted falls to the ground for the Deed is the foundation and a Case was cited in the Lord Dyer If there be two Iointenants and one cancels the Deed it hath destroyed the Right of the other Quaere of these things But it was agreed that if two Men who have one Office for their Lives and the survivor of them if one surrenders to the other and then a new Grant is made to this other and a Stranger he hath debarred himself of the Survivorship and he and the Stranger are jointly seised Crossman versus Sir John Churchil IN a Quare Impedit the Plaintiffs Title was set forth in his Declaration which was also found in a Special Verdict Where an Agreement for a Presentation by turns is good that Sir George Rodney was seised of the Advowson in Fée and died seised leaving two Sisters who were his Coheirs that Sir John Rodney being also one of the same Family and pretending a Right to the Estate for preventing Suits that might happen they all enter into an Agréement by Indentures mutually executed by which it was agreed that Sir John Rodney shall hold some Lands in severalty and the Co-heirs shall hold other Lands in the like manner and as for this Advowson a temporary provision was made thereof that each of them should Present by turns and this was to continue till partition could be made then comes an Act of Parliament and confirms the Indenture and Enacts That every Agreement therein contained shall stand and that all the rest of the Lands not particularly named and otherwise disposed by the said Indenture should be held by these three in common one of the three who by Agréement was next to Present grants the next Avoidance the Church being then full to the Plaintiff and the Question was whether these threé persons were not Tenants in Common of the Advowson and if so then the Grant of the next Avoidance cannot be good by one alone because he hath not the whole Advowson but only a Right to the third part It was said that if Tenants in Common had made such an Agreément it would not have beén any division of their interest for there must be a partition to sever the Inheritance The Court were all of Opinion Curia that Iudgment should be given for the Plaintiff for there was an Agréement that there shall be a Presentation by turns and therefore for one turn each hath a Right to the whole Advowson by reason of the Act of Parliament by which that Agreement is confirmed and thereby an Interest is setled in each of them till Partition made but this Agreement would have vested no Interest in either of them without an Act of Parliament to corroborate it therefore there had been no remedy upon it but by an Action of Covenant This Case was argued four times and not one Authority cited The Earl of Shaftsbury versus Lord Digby In Banco Regis For Words upon the Statute of 2 R. 2. c. 5. Jones 49. SCandalum Magnatum The Plaintiff declares upon the Statute of 2 R. 2. cap. 5. for these Words viz. You are not for the King but for Sedition and for a Common-wealth and by God we will have your Head the next Sessions of Parliament After Verdict for the Plaintiff and 1000 l. damages given it was moved in Arrest of Iudgment and several Exceptions taken 1. As to the Recital of the Statute the Words of which are That no Man shall devise any Lies c. and the Plaintiff for the Word devise had used the Latin Word contrafacio in his Declaration which was very improper that being to counterfeit and not to devise for it should have béen machino or fingo those are more expressive Words of Devise 2. 'T is alledged that the Defendant dixit mendacia of the Plaintiff viz. haec Anglicana verba sequen̄ and doth not alledge that he spoke the Words 3. The most material Objection was a mistake in the Recital of the Statute the Words of which are That none shall speak any scandalous Words of any Dukes Earls c. the Justices of either Bench nor of any other great Officer of the Kingdom but the Plaintiff in his Declaration recites it thus viz. None shall speak any scandalous Words of any Dukes Earls c. Justices of either Bench great Officers of the Kingdom and leaves out the Words neque al so that it must be construed thus None to speak of any Dukes Earls c. being great Officers of the Kingdom and then 't is not enough that the Plaintiff is Comes but he also ought to be a great Officer of the Kingdom which is not set out in this Case But upon great Debate and Deliberation these Exceptions were overruled and the whole Court gave Iudgment for the Plaintiff As to the first Exception they said contrafacio is a legal Word and apt enough in this sense and so are all the Presidents and thus it was pleaded in the Lord Cromwel's Case As to the second Exception it was said the Mendacia which were told were the English Words which were spoken and the viz. haec Anglicana verba sequen̄ being in the Accusative Case are governed by the same Verb which governs the Words precedent viz. horribilia mendacia Besides for the supporting of an Action the viz. may be transposed and then it will be well enough viz. the Defendant spoke haec Anglicana verba viz. Lies of the Plaintiff As to the third Exception it was answered that the Plaintiff neéd not recite the Statute it being a * Sid. 348. general Law and admitting there was no necessity yet if he will undertake to recite it and mistake in a material Point 't is incurable but if he recites so much as will serve to maintain his own Action truly and mistakes the rest this will not vitiate his Declaration and so he hath done here by reciting so much of the Statute which Enacts That no Man shall speak any scandalous Words of an Earl which is enough he being an Earl to entitle him to an Action and he concludes prout per eundem Actum plenius liquet and the Court grounded themselves principally upon a Iudgment given in this Court which was thus viz. There was a Robbery committed and the Party brought an Action upon the Statute of Huy and Cry in which he recited incendia domorum 13 E. 1. cap. 1. the said Statute beginning Forasmuch as from day to day Robberies Murders burning of Houses c. and the Presidents are all so But the Parliament Roll is Incendia generally without domorum and it was strongly urged that it was a misrecital which was fatal But the Court were all of Opinion that the Plaintiffs Case being only concerning a Robbery for which the Statute was well recited and not about burning which was mistaken it was for that reason good
an Estate for the Life of the Husband and Wife and the Survivor What is this but one entire Estate in possession No other Interpretation can be agréeable to the sense of the Words for if it had been granted according to the true Estate which each had then it should have been first for the Life of the Wife and after the Tail spent then for the Life of the Husband The next thing to be considered is Whether the Estate shall pass entire or by fractions And as to that I need say no more than only to quote the Authority of that Iudgment given in Garret and Blizard's Case 1 Roll. Abr. 855. which is shortly thus viz. Tenant for Life Remainder for Life Remainder in Tail Remainder in Fee to the Tenant for Life in Remainder this Tenant for Life in Remainder levies a Fine come ceo c. it was adjudged a Forfeiture of his Estate for Life so that the Remainder Man in Tail might enter after the death of the Tenant for Life in possession for it shall not be intended that he passed his Estate by fractions viz. an Estate in Remainder for Life and a Remainder in Feé expectant upon the Estate Tail but one entire Estate in possession and 't is not like the Authority in Bredon's Case for there the Estate for Life and the Estate Tail followed one another Next it is to be considered whether after they granted omnia illa tenementa the subsequent Words totum statum suum c. do not come in by way of Restriction and qualifie what went before But those subsequent Words are placed in this Fine not by way of Restriction but of Accumulation Litt. 345 In Littleton Sect. 613. 't is said that if Tenant in Tail grants all his Estate in the Tenements Habendum all his Estate c. in this Case the Alienee hath but an Estate for the Life of the Tenant in Tail and 't is observable that totum statum in the Case put by Littleton is both in the Premisses and the Habendum But if I will grant tenementa praedicta in the Premisses and then make another Limitation in the Habendum there totum statum quicquid can make no Restriction if it should it will spoil most Conveyances It is agréed that if those Words had béen omitted in this Case then by this Fine the Reversion would be displaced and therefore much weight is laid upon these Words to explain the meaning of the Parties thereby and that when they granted tenementa praedicta they meant totum statum c. But here is no ground for such an Interpretation 't is an entire Grant of the Houses by the Words Tenementa praedicta and the subsequent Words shall never be allowed to make such a Restriction which shall overthrow the frame of the Déed If a Man who has no Estate in the Land passes it by Deéd this shall work against him by way of Estoppel and these Words totum quicquid c. which are usual in all Conveyances shall make no alteration of the Law for if such construction should be made of these Words as hath béen objected then in all Déeds where they are inserted if it happen that the Party hath no Estate or a void Estate nothing passes and then Covenants Estoppels and Warranties would be no Securities in the Law 2. These Words totum quicquid c. come in a distinct Clause of the Grant the precedent Words are Tenementa praedicta totum statum quicquid c. reddiderunt which are two parts a Grant and a Release and have no dependance upon each other being distinct Clauses and therefore these Words shall not be any Restriction of the former but if one Clause be carried on with a connexion so as 't is but an entire sentence in such Case a Man may restrain either general or particular Words Hob. 171. in Stukely and Butler's Case 3. Admitting these Words are a Restriction of the former yet the Estate is so limited that if the first Words were out of the Case this later Clause he said was enough for his purpose for the Grant is not in the usual Words by which Estates pass viz. Estate Right Title Interest but Totum quicquid c. for the Lives of the Grantors and the Survivor which shews that they took upon themselves to grant for a longer time than they had in possession if they had only granted it for both their Lives they might have some colourable pretence 4. 'T is apparent from the Clause of the Warranty that the intent of the Parties was to grant an Estate expresly in possession for the Lives both of the Husband and his Wife for 't is that which the Grantée shall hold c. during their Lives and the longest Liver Object The Case of * 2 Rol. Abr. 36 403. Eustace and Scaven has been objected 'T is reported in 2 Cro. 696. which is Feme Covert and A. are Iointenants for Life the Husband and Wife levy a Fine to A. the other Iointenant and grant the Land and totum quicquid habent c. to him during the Life of the Wife with Warranty the Wife survives A. her Companion Adjudged that these Words Totum quicquid shall not enure by way of Grant and severance of the Iointure of the Moiety for then there would be an Occupancy but they are restrictive only to the Estate of the Wife and shall enure by way of Release to A. so that after his death he in Reversion may enter Answ It would not be a Question in that Case whether these Words were restrictive or not for nothing was granted but what might lawfully pass viz. during the Life of the Wife the other Ioyntenant neither was there any stress laid on those Words for Mr. Iustice Jones who was a Learned Man and reported the same Case fol. 55. hath made no mention thereof but hath wholly omitted those Words which he would not have done if the Case had depended upon them 2. Object Next the Form of this Fine has been objected and a President was cited Rast Entr. 241. where such a Fine was levied and nothing passed but for the Life of the Conusor Answ But no Authority can be produced where a Man that had an Estate for Life in Possession and another in Remainder and granted by the same Words as in this Case but that it was a Forfeiture 3. Object That the Law will not make a Construction to work a Wrong and therefore if Tenant for Life grant generally for Life it shall be interpreted during the Life of the Grantor Answ That Case is without express Words or shewing any time for which the Grantee shall have the thing granted and therefore the Law restrains it to the Life of the Grantor because it will not make Words which are doubtful and of incertain signification to do any Wrong But where there are express Words as in this Case no other
Witton versus Bye 45 Ed. 3. 8. 20 E. 4 13. Covevenant will lie upon the Words Yeilding and Paying If then here is a good Rent reserved the Wife who receives the Profits becomes Executrix de son tort and so is lyable to the payment It hath been held there cannot be an Executor de son tort of a Term but the Modern Opinions are otherwise as it was held in the Case of Porter and Sweetman Trin. 1653. in B. R. And that an Action of Debt will lie against him Indeed such an Executor cannot be of a Term in futuro and that is the Resolution in Kenrick and Burgesses Case Moor Rep. Where in Ejectment upon Not Guilty pleaded it appeared that one Okeham had a Lease for years of the Lands in question who dyed Intestate which Lease his Wife assigned by parol to Burgess and then she takes out Letters of Administration and assigns it again to Kenrick who by the Opinion of the Court had the best Title But if one enter as Executor de son tort and sell Goods the Sale is good which was not so in this Case because there was a Term in Reversion whereof no Entry could be made for which reason there could be no Executor de son tort to that and therefore the Sale to Burgess before the Administration was held void And that there may be an Executor de son tort of a Term there was a late Case adjudged in Trin. 22 Car. 2. between Stevens and Carr which was Lessee for years rendring Rent dies Intestate his Wife takes out Letters of Administration and afterwards Marries a second Husband the Wife dies and the Husband continues in Possession and receives the Profits It was agreed that for the Profits received he was answerable as Executor de son tort and the Book of 10 H. 11. was cited as an authority to prove it Pemberton Serjeant for the Defendant Ex parte Def. would not undertake to answer these Points which were argued on the other side but admitted them to be plain against him for he did not doubt but that Debt would lie upon the Contract where the whole Term was assigned and that there may be an Executor de son tort of a Term but he said that which was the principal point in the Case was not stirred The question was whether an Action of Debt will lie against the Defendant as Executor de son tort where there is no Term at all for 't is plain there was none in being in this Case because when the Lessee Re-demised his whole Term to the Lessor that was a Surrender in Law and as fully as if it had been actually surrendred and therefore this was quite different from the Case where Lessee for years makes an Assignment of his whole Term to a Stranger Debt will lie upon the Contract there because an Interest passes to him in Reversion and as to this purpose a Term is in esse by the Contract of the Parties and so it would here against the first Lessor who was Lessee upon the Re-demise but now because of the Surrender the Heir is intituled to enter and the Mother who is the Defendant enters in his Right as Guardian which she may lawfully do If therefore Debt only lies upon the Contract of the Testator as in truth it doth where the whole Term is gone the Plaintiff cannot charge any one as Executor de son tort in the debet and detinet And the whole Term is gon here by the Re-demise which is an absolute Surrender and not upon Condition for in such Case the Surrenderor might have entred for non-performance and so it might have been revived And of this Opinion was the whole Court in both points and would not hear any farther Argument in the Case the Plaintiff having no remedy at Law the Court told him that he might seek for relief in Chancery if he thought fit Harman's Case IN Covenant the breach assigned was that the Defendant did not repair He pleads generally quod reparavit de hoc ponit se super patriam this was held good after a Verdict Quadring versus Downs al' Wardship cannot be where there is no descent IN a Writ of right of Ward the Case was Viz Sir William Quadring being seised of Lands in Fee by Deed and Fine settles them upon his Son William and his Wife for their Lives the Remainder to the second Son in Tail with divers Remainders over The Grandfather dyes the Father and Mother dyes the eldest Son dyes without Issue and so the Land came to the second Son The Plaintiff intitles himself as Guardian in Socage to the Wardship both of the Person and Lands of the Infant whom the Defendant detained and Serjeant Newdigate for him demurred because where there is no descent there can be no Wardship for the second Son is in by purchase and not by descent for here is no mention of the Reversion in Fee and therefore it may be intended that it was conveyed away and besides if it should be intended to continue to Sir William Quadring the Grandfather after this Settlement yet it cannot be thought to descend to the Ward because 't is not said who was Heir for though it be said that the Father of the Ward was Son to Sir William yet 't is not said Son and Heir and of that Opinion was the whole Court in both points for there must be a descent or else there can be no Wardship and it doth not appear that any descent was here because 't is not said that the Reversion did descend nor who was Heir to Sir William which the Plaintiff perceiving prayed leave to amend and it was granted In this Case it was said at the Bar that one might be a Ward in Socage though he be in by Purchase for the Guardian is to have no profit but is only a Curator to do all for the benefit of the Ward and so there need be no descent as is necessary in the Case of a Ward in Chivalry for that being in respect of the Tenure the Guardian is to have profit The Lord Chief Iustice North said Nota. he knew where there was some doubt of the sufficiency of the Guardian in Socage that the Court of Chancery made him give good Security Harding versus Ferne. IN an Action of Assault Battery and Imprisonment Antea Anonymus 'till the Plaintiff had paid 11 l. 10 s. The Defendant pleads and justifies by reason of an Execution and a Warrant thereupon for 11 l. and doth not mention the 10 s. And upon demurrer for this Cause Iudgment was given for the Plaintiff upon the first opening because it appeared the Defendant took more than was warranted by the Execution Ellis versus Yarborough Sheriff of Yorkshire IN an Action of Escape the Plaintiff sets forth that the Defendant Arrested a Man upon a Latitat directed to him at the Suit of the Plaintiff Case lies not against
Profit it was answered That the Act took care that Men should not stop up their Chimnies when once made and that this Duty was paid for many Chimnies which were never used and what Profit can a Man have of a Chimny he never useth If there had been an Act that so much should be paid for every Window 't is all one whether it had been for profit or pleasure or whether the Window had been used or not and there is as much reason that a Man should pay for Houses never Inhabited as for such as have been Inhabited and are afterwards without Tenants This Act ought therefore to receive a favourable Construction the Preamble whereof mentions that it was for the encreasing of the Kings Revenue which is pro bono publico and which is for the Peace and Prosperity of the Nation and the protection of every single person therein and though a particular Inconvenience may follow the Party ought to submit When a Man builds a House he proposes a Profit and 't is not fit the Kings Duty should be contingent and depend till he has provided himself of a Tenant Object As to the other Objection that was much relied on viz. where the Act speaks of an Accompt to be given it mentions both Owner and Occupier but where it directs the Payment of the Duty the Occupier only is named by which it was inferred that he alone was chargeable Answ In 16 Car. 2. cap. 3. Owner Proprietor and Occupier are used promiscuously wherein it is provided that they shall not be charged unless within two years after the Duty accrued now if the Owner was not chargeable why is he mentioned there As to the second Point they conceived that the Duty being payeable to the King he had a remedy by distress before the Accompt was certified into the Exchequer for the Return was to inform the King what advantage he maketh of his Revenue and no Process issued upon it besides the Act vests the Duty in him from Lady-day 1662. And by reason of that he may distrain The King hath no benefit by returning of the Account that being only intended to prevent his being cheated so that 't is not to entitle but to inform him 't is only to return a just and true account not but that it may be levied and the King entitled before and 't is no inconvenience to the Subject if there be no such Account returned for if the Officer distrain for more Hearths than in truth there are the Subject has a proper remedy against him The King suffers when Returns are not made of such Duties as he ought to have for the support of his Dignity and because he is lyable to be defrauded in the managing of his Duty is it reasonable that he should lose all As to what was said of the Kings taking by matter of Record 't is true if he divest an Inheritance as in case of Attainder it must be by Record but here the very Duty is given to him by the Act it self which makes it a different Case If the King should be seised in Fee of a great Wast which happens to be improved by his Tenants and thereby Tythes become due it may be as well said that he shall have no Tythes without Record as to say he shall have no Hearth-Mony for Houses newly erected whereby his Revenue is increased For which Reasons Iudgment was prayed for the Defendant and upon the second Argument Iudgment was given accordingly for him Curia That empty Houses are subject and lyable to this Duty Astry versus Ballard IN an Action of Trover and Conversion for the taking of Coals upon Not-Guilty pleaded Grants must be taken according to common intendment Jones 71. the Iury found a special Verdict The Case was thus Viz. That one J. R. was seised in Fee of the Manor of Westerly and being so seised did demise all the Mesuages Lands Tenements and Hereditaments that he had in the said Manor for a Term of years to N. R. in which demise there was a recital of a Grant of the said Mannor Mesuages Lands Tenements Commons and Mines but in the Lease it self to R. the Word Mines was left out Afterwards the Reversion was sold to the Plaintiff Astry and his Heirs by Deed enrolled and at the time of this demise there were certain Mines of Coals open and others which were not then open and the Coals for which this Action of Trover was brought were digged by the Lessee in those Mines which were not open at the time of the Lease and whether he had power so to do was the Question It was said That when a Man is seised of Lands wherein there are Mines open and others not open and a Lease is made of these Lands in which the Mines are mentioned Antea 'T is no new Doctrine to say that the close Mines shall not pass Mens Grants must be taken according to usual and common intendment and when Words may be satisfied they shall not be strained farther than they are generally used for no violent Construction shall be made to prejudice a Mans Inheritance contrary to the plain meaning of the Words A Mine is not properly so called 'till it is opened 't is but a Vein of Coals before and this was the Opinion of my Lord Coke in point in his first Inst 54. b. Where he tells us 5 Co. 12. Sanders Case Roll. Abr. 2 part 816. that if a Man demises Lands and Mines some being opened and others not the Lessee may use the Mines opened but hath no power to dig the unopened Mines and of this Opinion was the whole Court and Iustice Twisden said That he knew no reason why my Lord Coke's single Opinion should not be as good an Authority as Fitzherbert in his Nat. Br. or the Doctor and Student Ipsley versus Turk IN a Writ of Error upon a Iudgment in an Inferiour Court What is admitted in pleading shall not be assigned for Error Jones 81. the Error assigned was That the Mayor who was Iudge of the Court did not receive the Sacrament at any Parish Church nor file any Certificate so that he was not Mayor and Iudgment being given against the Defendant before him it was therefore Coram non Judice like the Case of Hatch and Nichols Roll. Abr. 1 part tit Error 761. Where upon a Writ of Error brought upon a Iudgment in an Inferiour Court the Error assigned was that the Stile of the Court was Curia tent̄ coram J. S. Seneschallo who was not Steward and that was held to be an Error in fact But on the other side it was insisted that this was not Error because the Acts of the Mayor should not be void as to Strangers The Statute of 25 Car. 2. cap. 2. for preventing of dangers which may happen from Popish Recusants disables the Party who is not qualified according to the Act to hold an Office and if he execute the same afterwards
Seck after demand is a disseisin Pl. Com. 92. b. much more in personal Actions where the substance is found 't is well enough 1 Inst 282. a. But the Court said That notwithstanding this Authority they would not intend a Conversion unless the Iury had found it especially in this Case because they ought to have found it to make the Servant lyable for if the conversion was to the use of his Master there is no colour for this Action to be brought against the Defendant but it ought to be brought against the Master Whereupon a Ve. fa. de novo was prayed to help the Insufficiency of the Verdict the conversion not being found but the Court said it was to no purpose to grant a new Tryal unless the Plaintiff had a new Case and so Iudgment was given for the Defendant Bill versus Nicholl Variance between the Record pleaded and the Record it self IN an Action brought in the Court of Exchequer the Defendant pleaded another Action depending against him for the same matter in the Common Pleas and upon nul tiel Record replied by the Paintiff a Day was given to bring in the Record and when it was brought in it appeared that there was a variance between the Record in the Common Pleas as mentioned in the Defendants Plea and the Record it self for the Defendant in his Plea had alledged one Gerrard to be Attorny instead of Gardiner who was Attorny upon Record and whether this was a failure or not of the Record was the question It was said on the Defendants side that it was such a variance that it made it quite another Action and on the Plaintiffs side it was said that an immaterial variance will not prejudice where the substance is found 7 H. 4. 1. Bro. Failure pl. 2. 15. Curia advisare vult Forest qui tam c. versus Wire Action lyes in the Courts at Westminster upon the Statute of 5 Eliz. but not an Information 3 Cro. 316. DEBT upon the Statute of 5 Eliz. cap. 4. for using the Trade of a Silk Weaver in London not having been an Apprentice seven years the Action was brought in this Court and laid in London and tried by Nisi prius and a Verdict for the Defendant and now the Plaintiff to prevent the payment of Costs moved by Mr. Ward against his own Action and said that it will not lye upon this Statute in any of the Courts of Westminster for 't is not only to be laid as here in the proper County but 't is to be brought before the Iustices in their Sessions and this is by force of the Statute made 31 Eliz. cap. 4. and 21 Jac. cap. 4. Which Enacts That all Informations upon Penal Statutes must be brought before the Justices of the Peace in the County where the Fact was committed But the Court were clear of 2 Cro. 178. Stiles 383. By the Opinion of Rolls Cro. Car. 112. Opinion That the Action may be brought in any of the Courts of Westminster who have a concurring Iurisdiction with the Iustices and so they said it hath been often resolved Attorny General versus Alston AN Inquisition upon an Accompt stated went out to inquire what Lands one Havers had in the twentieth year of this King or at any time since Where the Kings Title is not precedent to that of the Ter-tenant the Lands of his Receiver shall not be liable by the Statute of the 13th Eliz. he being the Receiver General in the Counties of Norfolk and Huntingdon The Iury found that he was seised of such Lands c. whereupon an Extent goes out to seise them into the Kings Hands for payment of 1100 l. which he owed to the King Alston the Ter-tenant pleads that Havers was indebted to him and that he was seised of those Lands in 20 Car. 1. which was before the Debt contracted with him and that he became a Bankrupt likewise before he was indebted to the King and thereupon these Lands were conveyed to the Defendant by assignment from the Commissioners of Bankrupcy for the Debt due to him from Havers absque hoc that he was seised of these Lands at the time he became indebted to the King The Attorny General replies That he was seised of these Lands before the Commisson of Bankrupcy issued and before he became a Bankrupt and that at the time of his Seisin he was Receiver and accountable for the receipt to the King and being so seised in the 20the year of this present King he was found in Arrear 1100 l. for the payment whereof he was chargeable by the Statute of the 13 Eliz. cap. 4. Which subjects all the Lands of a Receiver which he hath or shall have in him during the time he remains accomptable and so prays that the Kings Hands may not be amoved To this the Defendant demurred And Sawyer for him held that the Replication was ill both in form and Substance 1. It doth not appear that the Defendant continued Receiver from the time he was first made as it ought to be or else that he was Receiver during his Life for if a Man is Receiver to the King and is not indebted but is clear and sells his Land and ceases to be Receiver and afterwards is appointed to be Receiver again and then a Debt is contracted with the King the former Sale is good 2. The Replication is a departure from the Inquisition which is the Kings Title for the Lands of which Inquiry was to be made were such which Havers had 20 Car. 2. And the Defendant shews that Havers was not then seised thereof but makes a good Title to himself by Indenture of Bargain and Sale made to him by the Commissioners of Bankrupcy and so the Attorny General cannot come again to set up a Title precedent to the Defendant for that is a departure 't is enough for the Defendant that he hath avoided the Kings Title as alledged and though Mr. Attorny is not bound to take Issue upon the Traverse yet he cannot avoid waveing both the Title of the Defendant and the King by insisting upon a new matter It was agreed That the King had two Titles and might either have brought his Inquisition grounded upon the Debt stated or upon the Statute of the 13th of Eliz. upon Havers his becoming Receiver but when he hath determined his Election by grounding it upon the Debt stated he cannot afterwards have recourse to the other matter and bring him to be liable from the time of his being Receiver as if an Inquisition goes to inquire what Lands the Debtor of the King had such a day when he entred into a Bond if there be an answer given to that Mr. Attorny cannot afterwards set up a precedent Bond because 't is a departure and the Statute it self vests no Estate in the King but makes the Receivers Lands lyable as if he had entred intred into a Statute Staple The Inquisition therefore should have been grounded
upon the Statute and then the Defendant might have pleaded the Act of Indempnity of which he might have the benefit but if not he may be let into the Equity of the Statute of the 33 H. 8. cap. 39. which gives liberty to Purchasers to have contribution and to plead sufficient matter if they have any in discharge of the Debt Ex parte Quer. But on the other side it was said that the Replication was good for if the Sale was after his being Receiver though before he became indebted yet by the Statute of the 13 Eliz. the Lands are subject to a Debt contracted afterwards because it hath a Retrospect to the time he was first Receiver Pl. Com. 321. Dyer 160. By the Common Law both the Body and Lands of the Kings Debtor were lyable from the time he became indebted but because such Debtors oftentimes sold those Lands which they had whilst they were Officers and so the King was defeated therefore was this Statute made to supply that defect of the Common Law by which Statute all the Lands he had at any time during his continuance in the Office were made lyable And though it may be objected That because of this Inquisition the King is limited to a time Viz. that inquiry should be made what Lands Havers had in the 20th year of the King yet it was said the Inquiry may be general The Elegit anciently left out the time because the Law doth determine from what time the party doth become lyable so that the question is about the King's Title which if it appear to precede that of the Ter-tenant then the King's Hands are not to be amoved and thereupon Iudgment was prayed for him Bro. Prerogative 59. Curia adversare vult Barker versus Keat IN a Special Verdict in Ejectione firmae Reservation of a Pepper Corn a good consideration to raise an use to make a Tenant to the Praecipe Mod. Rep. 262 the Iury made a special Conclusion by referring to the Court whether there was a good Tenant to the Praecipe or not which was made by a Bargain and Sale but no Mony paid nor any Rent reserved but that of a Pepper Corn to be paid at the end of six Months upon demand and the Release and Grant of the Reversion thereupon was only for divers good Considerations The Question was if this Lease upon which no Rent was reserved but that of a Pepper Corn be executed by the Statue of Uses or not if it be Cro. Jac. 604. Jones 7. 1 Cro. 110. 5 Rep. 124. b. then there is no need of the Entry of the Lessee for the Statute will put him in actual possession and then the Inheritance by the Release or Grant of the Reversion will pass But if this Lease be not within the Statute because no Vse can be raised for want of a Consideration then it must be a Conveyance at the Common Law Lit. Sect. 465. Co. Lit. 46. b. and so the Lessee ought to make an actual Entry as was always usual before the making of the Statute Serjeant Waller and Maynard argued that here was no Consideration to raise an Vse for the reservation of a Pepper-Corn is no profit to the Lessor 't is not a real and good Rent For so small and trivial a matter is no Consideration for that which must be a good Consideration ought to be Mony or some other valuable thing Then this Conveyance is not executed by the Statute of Vses and if so 't is not good at the Common Law it being only a Lease for years and no Entry without which there can be no possession and if not then there can be no Reversion upon which the Release may operate 't is only an interresse termini and so was the Opinion of my Lord Coke since the Co. Lit. 270. making of this Statute 1 Leon. 194 195. And that no Vse was raised here the Case of my Lord Paget was cited to which this was compared My Lord being seised in Fee Covenanted to stand seised to the Vse of Trentham and others in consideration of payment of his Debts out of the Profits of his own Estate this was adjudged a void Vse because there was no consideration on Trentham's part to raise it the Mony appointed to be paid being to be raised out of the Profits of my Lords Estate The Words of the Lease are Demise Grant c. which are Words at the Common Law Co. Lit. 45. b. and 't is not possible that a future executory Consideration should raise a present Vse for the Pepper Corn is not to be paid till the end of six Months and as this Consideration is executory so it is contingent too for the Lessor might have released before the expiration of the six Months If the Case of * Cro. Jac. 604. pl. 32. Lutwitch and Mitton be objected where it was resolved by the two Chief Iustices and Chief Baron that upon a Deed of Bargain and Sale of Lands where the Bargainee never entred and the Bargainor reciting the Lease did grant the Reversion expectant upon it Cro. Car. 110 400. that this was a good grant of the Reversion from which the Possession was immediately divided and was executed and vested in the Bargainee by virtue of the Statute of Vses This is no Objection to the purpose because in that Case the Bargainor was himself in actual possession So that if there be no good Tenant to the Precipe in this Case though all that joyn in it are Estopped to say so yet the Tenant in Tail who comes in above is not barred 5 H. 5. 9. But on the othe side it was said that the Lessee was in possession by the Statute for the Word Grant being in the Lease and the reservation being a Pepper Corn that will amount to a Bargain and Sale though it hath not those precise words in it 8 Co. 94. Pl. Com. 308. Dyer 146. b. contra But if it should not yet another Vse may be averred than what is in this Lease like Bedel's Case 7 Co. 40. b. Where a Man in consideration of Fatherly Love to his eldest Son did covenant to stand seised to the Vse of him in Tail and afterwards to the use of his second Son there though the consideration respected his eldest Son only in Words yet a consideration which is not repugnant to it may be averred and though an Entry is not found yet it shall not be intended since the Iury have not found the contrary North Chief Iustice At first when this sort of Conveyance was used the Lessee upon the Lease for a year did always make an actual Entry and then came the Release to convey the Reversion but that being found troublesome the constant Practice was to make the Lease for a year by the Deed of Bargain and Sale for the consideration of five shillings or some other small sum and this was held and is so still to be good
without any actual Entry 2 Cro. 604. and the Bargaineé thereby is capable of a Release though he cannot bring an Action of Trespass without Entry for when Mony is the Consideration of making the Bargain and Sale 't is executed by the Statute of Vses and so the Release upon it is good but if the Deed be not executed 't is otherwise But this being to support a Common Recovery Antea Addison and Otway was to be favoured and therefore the Court took time to consider till the next Term and then The Chief Iustice said That if a real Action be brought against A. who is not Tenant to the Praecipe and a Recovery be had against him the Sheriff can turn him out who is in possession but if he who is not in possession comes in by Voucher he is estopped to say afterwards that he was not party to the Writ so that he who is bound must be Tenant or Vouchee or claim under them Conveyances have been altered not so much by the Knowledge of the Learned as by the Ignorance of Vnskilful Men in their Profession The usual Conveyance at Common Law was by Feoffment to which Livery and Seisin were necessary the Possession being given thereby to the Feoffee Antea Lord Salisburies Case but if there was a Tenant in Possession and so Livery could not be made then the Reversion was granted and the particular Tenant always attorned and upon the same reason it was that afterwards a Lease and Release was held a good Conveyance to pass an Estate but at that time it was made no question but that the Lessee was to be in actual Possession before the Release Afterwards Vses came to be frequent and Settlements to Vses were very common by reason whereof many inconveniencies were introduced to prevent which the Statute of the 27th of H. 8. was made by which the Vse was united to the Possession for before that Statute Vses were to be executed according to the Rules of Equity but now they are reduced to the Common Law and are of more certainty and therefore are to be construed according to the Rules of Law At the Common Law when an Estate did not pass by Feffoment the Lessor or Vendor made a Lease for years and the Lessee actually entred and then the Lessor granted the Reversion to another and the Lessee attorned and this was good Afterwards when an Inheritance was to be granted then also was a Lease for years usually made and the Lessee entred as before and then the Lessor released to him and this was good But after the Statute of Vses it became an Opinion That if a Lease for years was made upon a valuable Consideration a Release might operate upon that without an actual Entry of the Lessee because the Statute did execute the Lease and raised an Vse presently to the Lessee Sir Francis Moor Serjeant at Law was the first who practised this way Nota. But because there were some Opinions that where Conveyances may enure two ways the Common Law shall be preferred unless it appear that the party intended it should pass by the Statute thereupon the usual course was to put the Words Bargain and Sale into the Lease for a Year to bring it within the Statute and to alledge that the Lease was made to the intent and purpose that by the Statute of Vses the Lessee might be capable of a Release but notwithstanding this Mr. Noy was of the Opinion That this Conveyance by Lease and Release could never be maintained without the actual Entry of the Lessee This Case goes farther than any that ever yet came into Iudgment for Mony is not mentioned here to be the Consideration or any thing which may amount to it unless the Pepper Corn which he held to be a good Consideration The Lease and Release are but in nature of one Deed and then the intent of the Parties is apparent that it should pass by the Satute and eo instanti that the Lease is executed the Reservation is in force The Case put by Littleton in Sect. 459. is put at the Common Law and not upon the Statute where he saith That if a Lease be made for years and the Lessor releaseth all his Right to the Lessee before Entry such Release is void because the Lessee had only a Right and not the Possession which my Lord Coke in his Comment upon it calls an interesse termini and that such Release shall not enure to enlarge the Estate without the Possession which is very true at the Common Law but not upon the Statute of Vses And therefore Iudgment was given by the whole Court Judgment that the Word Grant in the Lease will make the Land pass by way of Use that the Reservation of a Pepper Corn was a good consideration to raise an Vse to support a Common Recovery that this Lease being within the Statute of Vses there was no need of an actual Entry to make the Lessee capable of the Release for by vertue of the Statute he shall be adjudged to be in actual possession and so a good Tenant to the Praecipe and Iudgment was given accordingly in Michaelmas Term following Kendrick versus Bartland THE Plaintiff brought an Action on the Case for stopping the Water going to his Mill with a Continuando c. Continuando laid after a Nusance abated yet Damages shall be recovered for what was done before The Defendant pleads that the stopping was contra voluntatem and that tali die which was betwéen the first and the last day laid in the Continuando the Plaintiff himself had abated the Nusance and so he had no cause of Action To this Plea the Plaintiff demurred and Serjeant Baldwyn who argued to maintain the Plea did not relye upon that part of it where the Defendant saith that the stopping of the Water was involuntary because he doing the thing it could not be contra voluntatem but the Question would be whether the Plaintiff had any cause of Action to recover damages after the Abatement of the Nusance and he said that he had abated it before the Action brought and counted for damages after the Abatement for which he had no Cause of Action and this he had confessed by his Demurrer But the Court were of Opinion that it was not a good Plea and took this difference between a Quod permittat or an Assize for a Nusance and an Action on the Case for the same for the end of a Quod permittat or an Assise was to abate the Nusance 2 Cro. 207 618 but the end of an Action on the Case was to recover damages therefore though the Nusance was removed the Plaintiff is intituled to his damages that accrued before and 't is usual in Actions of this nature to lay the Sid. 319. Continuando for longer time than the Plaintiff can prove but he shall have damages for what he can prove and so here he shall recover the
taken in Execution 1 Cro. 239. Hob. 180. Rol. Rep. 233. 2. The Promise here was not to pay the Mony absolutely but sub modo so that the Evidence did not maintain the Action and the Plaintiff was Nonsuited Nichols versus Ramsel Release of all Demands usque 26 Apr. a Bond dated that day is not released TRespass done 24 Martii 26 Car. 2. usque 26 Augusti 28 Car. 2. diversis diebus vicibus c. The Defendant pleaded that on the 24th day of April in the 26th year of King Charles the Second he paid the Plaintiff 6 d. which he received in full satisfaction of all Trespasses usque ad the said 24th day of April absque hoc that he was guilty ad aliquod aliud tempus praeter praedictum 24 Aprilis anno 26 Car. 2. aut aliquo tempore postea but leaveth out the 24th day of April and for that Reason the Plaintiff demurred because the Defendant had not answered that day for the Word usque excludes it So where Debt was brought upon a Bond dated 9 Julii the Defendant pleaded a Release of all Actions Owen ' 50. 2 Rol. Abr. 521. c. the same day usque diem dati ejusdem scripti the Bond was not discharged because the Release excludes the 9th day on which it was made But Serjeant Weston contra Though generally in pleading the Word usque is exclusive yet in the Case of Contracts because of the intent of the Parties 't is inclusive and therefore in one Nichol's Case 20 Car. 2. in B. R. Rot. 21. the Term was not named a Lease was made Habendum from Lady-day usque Festum Sancti Michaelis 1665. paying the Rent reserved at Michaelmas during the Term the Rent shall be paid on Michaelmas-day 1665. and so the day shall not be excluded So where a Man prescribes to put Cattle from and immediately after Lady-day where they are to stay till Michaelmas-day the putting them in on Lady-day and driving them away on Michaelmas-day is not justifiable in strictness yet it hath been allowed good So in a Devise the Question was whether the Testator was of Age or not and the Evidence was that he was born the first day of January in the Afternoon of that day and died in the Morning on the last day of December And it was held by all the Iudges that he was of full Age for there shall be no fraction of a day North Chief Iustice said that prima facie this is to be intended good for a day is but Punctum temporis and so of no great consideration But the other three Iustices were of Opinion that the Word Usque was exclusive and that the Plaintiff should not be put to shew that there was a Trespass done on the 24th of April and said that in a Release of all Demands till the 26th of April a Bond dated that day is not released wherefore Iudgment was given for the Plaintiff Trevil versus Ingram COvenant to pay an Herriot post mortem J. S. or 40 s. at the election of the Plaintiff Release of all Demands doth not barr a future Duty Mod. Rep. 216. and sets forth the death of J. S. and that afterwards he chose to have the 40 s. for which he brought this Action and assigns the Breach for Non payment The Defendant pleaded that the Plaintiff released to him all Actions and Demands c. But this Release was made in the Life time of J. S. and there was an Exception in it of Herriots The Plaintiff demurred and Serjeant George Strode argued that this Action was not discharged by that Release and cited Hoes Case 5 Co 70. where it was held that a Duty incertain at first which upon a Condition precedent was to be made certain afterwards was but a possibility which could not be released that the Duty in this Case was incertain because the Plaintiff could not make his Election till after the death of J. S. A Covenant to repair 2 Cro. 170. Roll. Abr. 407. But a Release of all Covenants in such an Indenture had been a Barr 5 Co. 71. a. and a Release pleaded to it within thrée days after the date of the Indenture And upon a Demurrer it was held that it being a future Covenant and not in demand at the time of the Release although it was of all Demands yet that Covenant was not thereby released So here neither the Herriot nor the 40 s. were either of them in demand at the time of the Release given and it plainly appears by the Exception in the Release that it was the intention of the Parties not to release the Herriots 2 Cro. 623. and of that Opinion was the whole Court whereupon Iudgment was given for the Plaintiff North Chief Iustice It is the Opinion of * Sect. 508 510. 2 Roll. Abr. 408. Sid. 141. Littleton That a Release of all Demands doth Release a Rent And of that Opinion was Iustice Twisden in the Argument of Hen and Hanson 's Case though it was resolved there that a Release of all Demands did not discharge a Rent reserved upon a Lease for years because such Rent is executory and incident to the Reversion 2 Cro. 486. and grows every year out of the Land but when it is severed from the Reversion as by assigning over the whole Term then it becomes a Sum in gross and is due upon the Contract and in that Case a Release of all Demands discharges a Rent afterwards due DE Term. Sancti Hill Annis 29 30 Car. II. in Communi Banco Shambrok versus Fettiplace PRohibition Prescription to have an Isle in a Church because of repairing no good cause for a Prohibition Hob. 69. The Question was whether a Prescription be good to an Isle in a Church which he and all those c. used to repair as belonging to a Mannor where he had no Dwelling House but only Land and Serjeant Geo. Croke argued that it was good and cited the Case of Boothby and Bayly where such a Prescription as this was held to be a good ground for a Prohibition Vide Moor Rep. 878. contra The Court inclined that it was not good but ordered the Prohibition to go and the Defendant to plead that it might come Iudicially before them to be argued Dashwood versus Cooper alios in Cammera Scaccarii ERror of a Iudgment in Trespass In a Negative Plea viz. That three did not such a thing it must be said nec eorum aliquis wherein Cooper and others brought an Action of Trespass against Dashwood for entring into a Brew-house and keeping of possession and taking away of 50 s. The Defendant pleaded That the Plaintiffs had committed an Offence against the Statute of 12 Car. 2. cap. 23. by which it is Enacted That all Offences thereby prohibited except in London shall be heard by two or more of the next Justices of Peace and in case of their neglect or refusal by
the space of 14 days after complaint made then the Sub-Commissioners of the Excise are to determine the same from whom no Appeal doth lye to the Justices of the Peace at their next Sessions which Commissioners of Excise Justices of the Peace and Sub-Commissioners amongst other things are inabled by the said Act to Issue out Warrants under their Hands c. to levie the Forfeitures and so justified the Entry under a Warrant from the Sub-Commissioners three Iustices having refused to hear and determine this Offence To this Plea the Plaintiffs demurred and had Iudgment in the Court of Kings-Bench and a Writ of Inquiry of Damages was Executed and 750 l. Damages given and it was alledged that the Defendant could not move to set aside the Iudgment in that Term it was given because the Writ of Inquiry was executed the last day of the Term and the Court did immediatly rise and that he could not move the next Term because the Iudgment was given the Term before the Writ of Error was brought The Attorny General therefore said that this was a hard Case and desired a Note of the Exceptions to the Plea which he would endeavour to maintain which Mr. Pollexfen gave him and then he desired time to answer them The Exception to the Plea upon which the Iudgment was given was this Viz. The Act giveth no power to the Sub-Commissioners to hear and determine the Offences and so to issue out Warrants for the Forfeitures but where the Iustices or any two of them refuse And though it was said by the Defendant that three refused yet it was not said that two did refuse for there is a great difference between the allegation of a thing in the Affirmative and in the Negative for if I affirm that A. B. C. did such a thing that affirmation goes to all of them but negatively it will not hold for if I say A. B. C. did not such a thing there I must add nec eorum aliquis So if an Action be brought against several Men and a Nolle prosequi is entred as to one and a Writ of Enquiry awarded against the rest which recites That the Plaintiff did by Bill implead naming those only against whom the Inquiry was awarded and leaves out him who got the Nolle prosequi this is a variance for it should have been brought against them all 'T is true where a Iudgment is recited 't is enough to mention those only against whom it is had but the Declaration must be against all so in a Writ of Error if one is dead he must be named and so the Iustices ought all to be named in this Case viz. that the three next Iustices did not hear and determine this Offence nec eorum aliquis Wells versus Wright In Communi Banco DEBT upon Bond conditioned Bond with an insensible Condition good that if the Obligée shall pay 20 l. in manner and form following that is to say 5 l. upon four several days therein named but if default shall be made in any of the Payments then the said Obligation shall be void or otherwise to stand in full force and vertue The Defendant pleads that tali die c. non solvit 5 l. c. and upon this the Plaintiff demurred Barrel Serjeant The first part of the Condition is good which is to pay the Mony and the other is surplusage void and insensible but if it be not void it may be good by transsposing thus viz. If he do pay then the Obligation shall be void if default shall be made in Payment then it shall be good and for Authority in the Point the Case of Vernon and Alsop was cited Sid. 105. 1 Sand. 66. 2 Sand. 79. Hill 14 Car. 2. Rot. 1786. in B. R. Where the Condition was that if the Obligée pay 2 s. per Week until the Sum of 7 l. 10 s. be paid viz. on every Saturday and if he fail in Payment at any one day that the Bond shall be void and upon the like Plea and Demurrer as here it was adjudged that the Obligation was single and the Condition repugnant The Court were all of Opinion that Iudgment should be given for the Plaintiff and the Chief Iustice said that he doubted whether the Case of 39 H. 6. 9 10. was Law Brittam versus Charnock Where the the Heir takes by the Will with a Charge he is a Purchaser and the Lands shall not be Assets DEBT upon Bond against the Defendant as Heir Vpon Riens per discent pleaded the Iury found a Special Verdict in which the Case was viz. The Father was seized of a Messuage and thrée Acres of Land in Fee and devised the same to his eldest Son the Defendant and his Heirs within four years after his decease provided the Son pay 20 l. to the Executrix towards the Payment of the Testators Debts and then he deviseth his other Lands to be sold for payment of Debts c. The Father dies the Son pays the 20 l. and if this Messuage c. was Assets in the Hands of the Defendant was the Question Cro. Car. 161. Cro. Eliz. 431. 833. Vaugh. 271. That it was not Assets it was said because the Heir shall not take by descent but by Purchase for the Word Paying is no Condition if it should the Heir is to enter for the breach and that is the Defendant himself and for that reason it shall be a Limitation Southcot and Stowel Antea 'T is true where there is no alteration of the Estate the Heir must take by descent but in this Case there is an alteration of the Estate from what is directed by the Law viz. the manner how he shall come by the Estate for no Fee passeth to him during the four years But this was denyed by Serjeant Pemberton for he said if a Devise be of Land to one and his Heirs within four years it is a present Devise and if such be made to the Heir 't is a descent in the mean time and those Words within four years are void so that the Question will be whether the Word Paying will make the Heir a Purchaser and he held it would not He agreed that it was usual to make that a Word of Limitation and not a Condition when the Devise is to the Heir and therefore in a Devise to the Heir at Law in Fée he shall take by descent Styles Rep. 148. But if this be neither a Condition or Limitation 't is a Charge upon the Land and such a Charge as the Heir cannot avoid in Equity North Chief Iustice and Atkins Where the Heir takes by a Will with a Charge as in this Case he doth not take by Descent but by Purchase and therfore this is no Assets Moor versus Pit SPecial Verdict in Ejectment The Case was this Surrender of a Copyhold to a Disseisor whether good to extinguish the Right viz. A Copyholder for Life the Remainder for Life he in
Remainder for Life surrenders the Copyhold to the Lord pro tempore who was a Disseisor only of the Mannor ut inde faciat voluntatem suam the Disseisor grants it to a Stranger for Life the Disseiseé enters the Stranger dies and whether the Disseisor or he in the Remainder for Life who made the Surrender had the better Title was the Question So that the Point was Cro. Car. 205. 2 Sid. 151. 1 Roll. Abr. 540. whether this Surrender by a Copy-holder in Remainder into the Hands of the Disseisor be good and shall so extinguish the Right to the Copyhold that it shall not be revived by the Entry of the Disseisee into the said Mannor It was said that in some Cases a Surrender into the Hands of a Disseisor was good that is when the Surrender is made to him to the use of another and his Heirs and he admits him there the person admitted claims not under the Lord but under the Copyholder who made the Surrender 1 Inst 59. b. for nothing passes to the Lord but only to serve the Limitation of the Vse 1 Rol. Abr. 503. litt Q. pl. 1. 4 Co. 24. But in this Case the Grantée must claim from the Lord himself and not from the Copyholder because he had but an Estate for his own Life with which he wholly departed when he made the Surrender to the use of the Disseisor himself In Trinity-Term following this Case was argued by Serjeant Maynard on the other side There are two sorts of Surrenders of a Copyhold 1. Proper 2. Formal and Ceremonious If a Surrender be to the Lord to the use of another this is no proper Surrender for no Estate passeth to the Lord he being only the Instrument to convey it to the Surrendree and this is but nominal But here the Surrender was to the use of the Lord himself which is a proper Surrender and in such Case 't is necessary that the Lord have a Reversion for one Estate is to be turned into the other and there must be a continuing of Estates But Dominus pro tempore who is a Disseisor hath no such Estate Executor de son tort shall sue but he cannot retain If therefore he is not capable to take a Surrender to himself unless he hath such an Estate then here is no Disseisin of the Copyhold 't is only of the Mannor and then no greater Interest passeth to the Disseisor than to a Stranger whilst the true Lord had been in possession for so he is quoad this Copyhold if he was not disseised of it for if the Copyholder had the possession there could be then no Disseisin if he was out of possession then he had nothing but a Right and that cannot be surrendred for it must be an Estate as if a Lessee for years keep possession 't is the possession of the Lord and the Law is the same in case of a Copyhold 2 Co. Bettisworth's Case Piggot and Lord Salisbury's Case Ante The true Owner makes a Feoffment in Fee if Lessee for years continue in possession no Fréehold passeth If Tenant at Will of parcel of the Mannor be in possession that prevents a Disseisin of the Freehold much more in Case of a Copyhold Lessee for years the Remainder to B. for Life the Remainder to C. in Fee C. by Deed makes a Feoffment to B. and Livery c. 't is a void Conveyance because the possession of Lessee for years is the possession of him in the Remainder for Life and as long as the Lessee for years is in the possession the Owner of the Inheritance cannot be out Lit. 324. cap. Attornment North Chief Iustice and Wyndham enclined that the Surrender was not good for it was a material distinction where the Surrender was made to the use of a Stranger and where it terminates in the Lord that a Surrender made by a Copyholder for Life could not transfer but extinguish his Right for he could not give a greater Estate than he had that there must be a Reversion in the Lord to make a Surrender to him to be good and that if a Copyholder keeps in possession there could be no Disseisin But Iustice Atkins contra That this Surrender must have operation to extinguish his Right for though a Copyholder for Life cannot surrender for longer time than his own Life yet if a Surrender be made of such a Copyhold to an Vse 't is good and works by way of Extinguishment of his Right though the Vse be void and if a Copyholder of Inheritance surrender to a Disseisor ut faciat voluntatem who regrants to the said Copyholder an Estate in Tail according to the Surrender this shall bind the Disseisee 1 Roll. Abridg. 503. pl. 3. Tamen quaere The Copyholder in this Case might have sold his Estate to the Disseisor and it had béen good and though the Acts of a Disseisor shall not prejudice the Disseisee yet he could see no reason why the Copyholder who had parted with his Estate should have it again Taylor versus Biddal SPecial Verdict in Ejectment The Case was thus Devise till he be of Age then to him in Fee he dyed within Age yet a Fee vested in him presently Richard Ben was seised in Fee of the Lands in question and had a Sister named Elizabeth formerly married to one Smith by whom she had Issue Augustine Smith now Lessor of the Plaintiff and she afterwards married one Robert Wharton by whom she had Issue a Son called Benjamin and a Daughter called Mary the now Defendant Richard Ben devised these Lands to Elizabeth his Sister and Heir for so long time and until her Son Benjamin Wharton should attain his full Age of 21 years and after he shall have attained his said Age then to the said Benjamin and his Heirs for ever and if he dye before his Age of 21 years then to the Heirs of the Body of Robert Wharton and to their Heirs for ever as they should attain their respective Ages of 21 years Richard the Testator dies Benjamin dyed before he came to the Age of 21 years living Roberr Wharton his Father afterwards Robert dyed And the Question was Whether the Lessor of the Plaintiff as Heir to Elizabeth or Mary either as Heir to her Brother Benjamin or as Heir of the Body of Robert should have this Land This Case was argued by Serjeant Pemberton this Term Ex parte Quer. and by Serjeant Maynard in Easter-Term following for the Plaintiff and they held that Augustine Smith the Lessor of the Plaintiff should have this Land because no Estate vested in Benjamin Wharton he dying before he had attained his Age of 21 years and the Testator had declared that his Sister should have it till that time and then and not before he was to have it so that if he never attained that Age as in this Case he did not the Land shall descend to the Heir of the Testator that Elizabeth had only an
new Will and the Grandson should take by the Name of Son And Iustice Atkins relied on the Case of Brett and Rigden in the Commentaries where new purchased Lands passed by a Republication but a Writ of Error being brought upon this Iudgment in the Kings Bench it was reversed Anonymus In Banco Regis MR. Sanders moved for a Prohibition to the Spiritual Court in the Case of the Children of one Collet and Mary his Wife to stay Proceedings there upon a Libel against them that the said Collet had married Anne the Sister of the said Mary They both appear and confess the Matter upon which a Sentence of Divorce was to pass whereas in truth Collet was never married to Ann but it was a contrivance between him and his Wife to get themselves divorced and the Marriage declared void ab initio to defeat their Children of an Estate settled upon them in Marriage with Remainders over by bastardizing them after they had been married and lived together 16 years The Reason why a Prohibition was prayed was because Marriage or no Marriage was to be tried in pais for that the Inheritance and Freehold of Land were concerned in this Case The Court directed that they should suggest this Matter Curia and that it was a Contrivance to obtain a Sentence of Divorce to defeat them of their Estate entailed on them and then to move for a Prohibition Smallwood versus Brickhouse THE Suggestion was Spiritual Courts are proper to determine where a person is capable of making a Will Godolph 276. that B. being under the Age of sixteen years had made a Will and that the Prerogative Court proceeded to the proof of it whereas by the Common Law a person is not capable till 17 years and therefore a Prohibition was prayed And that the Common Law hath determined the time my Lord Coke's Comment upon Littleton was cited 1 Inst 89. b. where 't is said That at 18 years of Age he may make his Testament and constitute Executors and the Age of a person is triable also in pais But the Court said Curia that the Proof of Wills and the Validity of them doth belong to the Ecclesiastical Court and if they adjudge a person capable the Court will not intermeddle for 't is within their Iurisdiction to adjudge when a person is of Age to make a Will and sometimes they allow Wills made by persons of 14 years of Age and the Common Law hath appointed no time it depends wholly on the Spiritual Law and therefore a Prohibition was denied Joan Bailies Case NOTA. One Joan Bayly being in Execution Administration was committed to the Debtor in Execution the Plaintiff dyed intestate and the Right of Administration came to her and a Motion was made for a Habeas Corpus to bring her from the Compter into this Court for that having administred to her Creditor she might be discharged but it was denyed for she could not be thus discharged because non constat de persona neither can she give a Warrant of Attorny to acknowledge satisfaction therefore let her renounce the Administration and get it granted to another and then she may be discharged by a Letter of Attorny from such Administrator Anonymus Mandamus MAndamus to swear one who was elected to be one of the Eight Men of Ashburn Court it was denyed because it is incertain for it ought specially to be inserted what the Office is and what is the place of one of the Eight Men of Ashburn Court that it may appear to the Court to be such a place for which a Mandamus doth lye and though such a Writ hath been granted for one of the approved Men of Guilford yet it was specially set forth what his Office was Birch versus Lingen Trin. 34 Car. 2. in B. R. Discontinuance where amendable JVdgment was obtained upon a Bond 25 years since and in one of the Continuances from one Term to another there was a blank The Executors of the Defendant now brought a Writ of Error and the Plaintiff in the Action got a Rule to amend and insert the Continuance suggesting to the Court that it was a Iudgment of a few Terms and so aided by the Statute of 16 17 Car. 2. cap. 8. Hughes Abr. tit Costs 480. 2 Sand. 289. Moor 710. Cro. Eliz. 320 489 553 619. Cro. Jac. 211 353 528. Vpon this Rule the Plaintiff fills up the Blank and the Record was certified so filled up into the Exchequer-Chamber And Mr. Pollexfen moved for the Defendant that the Record might stand as it did at first and that the Rule was got by a trick and on a false Suggestion it being a Iudgment before the Restoration of this King and a Discontinuance not amendable for 't is the Act of the Court and for an Authority in the Point the Case of Friend and Baker was cited where after a Record certified Stiles 339. a Motion was made to amend it because day was given over to the Parties from Easter to Michaelmas-Term and so Trinity-Term left out where by the Opinion of Roll Chief Iustice that the giving of a day more than is necessary is no Discontinuance but where a day is wanting 't is otherwise But Sanders for the Plaintiff said that this was only a Misprision of the Clerk and no Discontinuance but amendable The Clerks commonly leave Blanks in the Venires and if they neglect to fill them up 't is only a Misprision and amendable by the Court and the Record being now filled up by the Rule of the Court ought not to be razed to make an Error The Chief Iustice was of Opinion That this was not a discontinuance but an insufficient continuance and an omission of the Clerk only who if he had filled up this Blank himself without Rule it could not afterwards be set aside But Iustice Jones was of another Opinion That it was such a misprision of the Clerk as was not amendable by the Statute of H. 6. since it was not the same Term and all the Proceedings being in the Breast of the Court only during the Term it ought not to be altered but left in Blank as it was for where Iudgment is entred for the Plaintiff the Court may upon just cause alter it the same Term for the Defendant but not of another Term the whole Term being but one day in Law And though the Writ of Error be returned into the Exchequer that will make no alteration for the Record it self remains still here and 't is only a Transcript that is removed thither Sed Adjornatur Anonymus TRespass for breaking of his Close The Defendants plead Power where 't is coupled with an Interest is assignable That the place where were c. the Lands of one Martin who made a Lease thereof to the Plaintiff and did thereby except the Trees growing on the same In which Lease the Plaintiff did Covenant with the said Martin his
Where 't is good without the word tunc where not 129 Of words where the Pronoun pro makes the Contract conditional 33 34 F. Factor WHere he cannot sell but for ready Mony 100 101 Factum valet quod fieri non debet 194 Failure Of Record certified 246 Feoffment To Uses the Estate is executed presently 208 209 Fine Of Lands in a Lieu conus good 49 In a Scire facias to have such Fine excuted the Vill must be named 48 Good by Estoppel levied by a Remainder man in Tail 90 No Uses can be declared of such Fine ibid. Fine sur concessit the nature and effect of it 110 111 112 By such a Fine nothing shall pass but what lawfully may 111 Fines shall work a disseisin where they can have no other interpretation 112 Fines in Criminal Cases must be with Salvo contenemento 150 Flotsam Where it shall be sued for at Common Law and not in the Admiralty 294 Forbearance And doth not say from the making of the promise hucusque held good 24 Formedon In Descender the difference in pleading between that and a Formedon in Remainder or Reverter 94 25 Fraction Where an Estate shall pass by Fractions where not 114 115 G. Gaming WHat Acts amount to make it penal within the Statute 54 Not within the Statute where the Security is given to a third person 279 Grant of the King Where a false recital shall not make it void 2 3 Where the first description is full the misrecital afterwards shall not make it void 2 3 4 He may grant what he hath not in possession 107 Where words shall be rejected rather than his Grant shall be void ibid. Where an Advowson passeth though not named 2 Where a thing will pass by general words ibid. Misrecital where it doth not concern his Title shall not make the Grant void 2 3 Grant of a common Person Of the next Avoidance where it shall not bind the Successor 56 Must be taken according to usual and common intendment 193 Grant where the word in a Deed will make a thing pass by way of Use 253 Guardian In Socage where a doubt is of his sufficiency he may be compelled to give Security 177 H. Harmless vide Condition COndition to save harmless the Plea indempnem conservavit generally is not good 240 305 Habeas Corpus Cannot be granted by the Court of Common Pleas in Criminal Cases 198 199 306 Heir Where he takes by the Will with a Charge he comes in by Purchase and not by Descent and the Lands shall not be Assets 286 Where a general Replication to Riens per descent is good 50 51 Where he shall have a thing though not named 93 Hors de son Fee When to be pleaded 103 I. Ieofails THE Statute of 16 and 17 Car. 2. helps a misrecital in a proper County but not where the County is mistaken 24 An immaterial Issue not arising from the matter is not helped after a Verdict 137 Inducement Not such certainty required as in other Cases 70 Indebitatus Assumpsit Where it will not lie for want of Privity 262 263 Imparlance Tout temps prist not good after an Imparlance 62 Implication Where a Man shall have an Estate for Life by Implication 208 Imprisonment False Imprisonment will not lye against a Judge for committing of a Jury Man for finding against Evidence 218 It lies not against an Officer for refusing Bail but a special Action on the Case lies against the Sheriff for it 32 Information Upon the Statute of Philip and Mary for taking away a Maid unmarried within the Age of sixteen years 128 It will not lie where the Punishment is executed by the Statute 302 Infant When he may make a Will 315 Interest Where 't is vested in the King 53 Where it differs from an Authority 79 What words give an Interest 80 81 Where the word Interest signifies the Estate in the Land 134 Intention Of the Parties where to be considered 76 77 80 111 116 234 280 281 310 Where a thing shall be intended and where not 227 280 282 Grants where they shall be taken according to common intendment 193 Ioynder in Action Covenant to two not to do a thing without their consent one may bring the Action 82 Issue Where Time shall be made parcel of the Issue 145 Iudge and Iudgment Judge cannot fine a Jury for finding against Evidence 218 Action will not lie against him for what he doth judicially though erroneously 221 Judgment may be avoided by Plea without a Writ of Error 308 Iustification Vide Pleading Where 't is local you must traverse both before and after 68 Under a Lease for the Life of another Man and doth not averr that the Life is in being ill 93 Where 't is not local a Traverse makes the Plea naught 270 271 By vertue of a particular Estate you must shew the commencement of it 70 Where it is general and yet good 144 In Assault Battery and Wounding and saith nothing to the Wounding not good 167 Of a Servant by Command of his Master and good ibid. In Assault Battery and Imprisonment for 11 l. 10 s. the Defendant justifies by a Warrant for the 11 l. and saith nothing of the 10 s. not good upon Demurrer 177 Where 't is but of part the general words Quoad residuum transgressionis will not supply the rest 259 K. King THE Defendant cannot justifie in a Scandalum Magnatum brought upon the Statute of R. 2. because the King is a Party tam pro Domino Rege quam pro seipso 166 Where his Title is not precedent to that of the Ter-tenant the Lands of his Receiver shall not be charged by the Statute of 13 Eliz. 247 248 Difference between the Case of the King and of a common person 263 A person disabled by Outlary may sue for him but not for himself 267 Where an Interest is vested in him it shall not be divested by a general Pardon 53 L. Lease BY a Bishop and more than the old Rent reserved good 57 Where it shall be made by the words Covenant Grant and Agree and where not 80 81 Lessee for years assigns over his whole Term whether Debt will lie on the Contract or not 174 175 Liberties What is meant by the Word 48 Limitation of Action Extends to Indebitatus Assumpsit though not named in the enacting Clause 71 72 73 Statute no Barr where the Sheriff levyed Goods by a Fieri Facias and did not pay the Mony within nine years 212 Doth not extend to an Action on the Case Indebitatus Assumsit Quantum meruit and Insimul computasset 311 312 Limitation of Estate What are good words to take by Purchase from a Stranger 210 211 Limitation of Estate when void makes the Estate absolute 227 Livery Secundum formam Chartae where good or not 78 79 M. Mannor WHere a thing becomes in gross it can never after be united to it 144 What may be appurtenant to it ibid. N. Negative WOrds must
be in an Act of Parliament to restrain the power of the Courts at Westminster 128 Negative pregnant 138 Negative Plea that three did not such a thing it must be said nec eorum aliquis 284 285 Non Obstante Where it makes a Grant good 107 Where a general Non obstante will not dispense with a particular Statute 261 Notice Where the Agreement is that it shall be in writing it must be so pleaded 268 Where 't is made to the Testator alone it shall not be personal but is good if given to the Executor 268 269 O. Oath EX Officio lawful 118 Where it ought to be made of the loss of a Deed to entitle a Man to a Bill in Equity 173 Office and Officer Grant thereof to two and the Survivor one surrenders and another is admitted the benefit of Survivorship is gon 95 96 Of the Warden of the Fleet not to be granted for years 120 Where a person recomended proves insufficient the recommender shall be liable 121 In an Office of Trust there shall be no Survivorship 260 Officer excusable for executing an erroneous Process 196 Ordinary When his Power began 148 Outlary Pleaded in Disability to an Information and good 267 268 Where it needed not to be pleaded sub pede sigilli being in the same Court 267 P. Parish HOW it differs from a Vill 237 Pardon Where nothing vests but by Office found a Pardon restores the Party 53 Where the thing it self is pardoned and the consequence not 52 Parliament Where the time of the Session is misrecited and yet good 241 Where the Court ought to take notice of the commencement of a private or general Act 241 Difference between an Adjournment and a Prorogation 242 Partners The Action cannot be brought against one without setting forth the death of the other 280 If Judgment be against one the Goods of the other may be taken in Execution ibid. Paying In the Case of an Heir is not a Condition but a Limitation 286 Place Where it shall be intended not being laid in the pleadings 304 Pleas and Pleading What the Parties have admitted in pleading shall be good though the Jury find otherwise 5 Shall not afterwards be assigned for Error 193 194 Pleading of a Grant of a Reversion without hic in Curia prolat ' whether good or not 19 In Dower that the Demandant ought to have Judgment de tertia and doth not say parte and yet good 17 18 19 Award nullum fecerunt arbitrium de praemissis whether good without adding nec de aliqua parte 27 28 29 Plea to a Bond not good 33 A Judgment ultra quod no Assets where good 36 Estoppel you must relie upon it and not conclude with a Traverse 37 38 One promise in discharge of another where good or not 43 44 Of an accord in must be averred to be executed in all points 43 Replication where the Heir pleads a Settlement in Tail and a Lease for 99 years and that he had not Assets praeter the Reversion a general Replication of Assets is good because the praeter is idle 50 51 Justification in Trespass for taking corrupt Victuals held good 56 Justification by Arrest upon process out of an Inferiour Court 58 59 Justification by the Defendant where he must shew the Commencement of his Estate or not 70 71 Where 't is incertain 76 Touts temps prist not good after Imparlance 62 Profert hic in Curia where it must be pleaded formally 77 78 It must be pleaded when the Title is by Deed either as party or privy 64 De injuria propria sua where a Servant is Defendant 't is good without a Traverse 68 Plea where 't is naught with a Traverse ibid. Where the Defendant may plead any thing which amounts to a performance 139 Where the Defendant was charged with receiving 80 Pigs of Lead and he saith that he was not Receiver but omits aliquam partem inde the Plea was ill 146 Hoc paratus est verificare where good or not ibid. The Defednant was charged as Bayliff 1 Martii he saith he was not from the 1st of March and so excludes the day 146 In Covenant for not Repairing the Defendant pleads recuperavit generally and held good after Verdict 176 Affirmative Plea ought to be particular as if the Defendant pleads a Conveyance made he must shew what 239 Of another Action depending for the same Cause in another Court 246 Where good though it amounts to the general Issue 274 275 276 277 278 Argumentative Plea where good 276 Negative Plea viz. that three did not such a thing the Defendant must say nec eorum aliquis 284 Otherwise in an affirmative Plea ibid. Plea puis darrein Continuance must be certified as part of the Record of Nisi Prius 307 Non damnificatus generally no good Plea where the person and Lands are to be indempnified 305 Where a Judgment shall be avoided by a Plea without bringing of a Writ of Error the party being a Stranger to it 308 Prescription Not to be pleaded against another without a Traverse of the first 104 Must be alledged with a Seisin in Fee and not for Life 318 To a Modus where good 320 Presentation The King being entituled by the Symony of the Patron presents though the Symony be pardoned the Presentee shall not be removed 52 53 54 Between three by turns they are Tenants in Common of the Advowson and one may grant the next Avoidance the Church being full 97 How it must be pleaded tempore pacis 184 185 Possibility A Grant made thereof and good 106 107 By an Executor before Probate is but a Possibility and yet good 108 Priviledge Will not extend to a Case of necessity 182 Of a Serjeant at Law 296 Of an Attorny of the Kings Bench 181 Process Where an Action will not lie against the Defendant for doing a thing in Execution of the Process of Law 244 Prohibition To the Bishops Commission to set Rates upon the Parishioners to repair the Church 8 Prohibition printed in English and dispersed a Crime fit to be punished 119 Not granted for a Rate for building of a Church 222 223 Where it shall be granted at any time 273 Where a Sentence of Divorce was intended to adnul a Marriage 314 Upon a Suggestion of Excommunication because he refused to accuse himself 278 Power Where 't is coupled with an Interest 't is assignable 317 Promise Where they are mutual the performance need not be averred 33 34 Purchase Where the Heir takes by Purchase the Ancestor must depart with his whole Fee 208 Where the Heir shall take by Purchase and where by Descent 286 Q. Quare Impedit REal Mainpernors must be returned upon the Summons Pone and Grand Cape if the disturber do not appear and not John Doe and Richard Roe 264 265 Que Estate Where 't is pleadable 143 144 R. Rates FOR building of a Church shall be set by the Parishioners 222 Recital Where a Title is set
out by way of Recital and good 142 Recovery Common Of Lands in a Liberty passeth Lands in a distinct Vill in the same Liberty though not named 47 48 49 How to be pleaded 70 When first invented 132 Parish and Vill within the Parish of the same name a Recovery is suffered of Land in the Vill without naming the Parish but the Parish is named in the Indenture to lead the Uses they make but one Conveyance and the Lands in the Parish pass 233 234 Rectory Tythes thereof shall not be sequestred for repairing of the Chancel 254 Refusal Vide Request Relation Where it shall be allowed to make a thing good and where not 148 149 Release By an Executor before probate where good and where not 108 Not good where the Party had only an inception of Right ibid. Of all Demands to the 26th of April a Bond dated that day is not released 281 Where it shall discharge a Rent afterwards due and where not 282 Remedy Where a thing is in the same mischief 't is within the same remedy 72 Reputed Lands shall pass by general words 69 Repleader Shall be after an immaterial Issue 139 140 Reparavit generally de hoc ponit se super patriam good after Verdict 176 Replevin Both are Actors 199 Where Non cepit generally is a good Plea and where not ibid. Request Where a thing is to be done upon Request within six Months or Mony to be paid if the Request be not made within the time 't is a dispensation of one part of the Condition and the Law doth discharge the other part 203 What shall be a refusal in Law what not 74 75 Reservation Of Rent to him his Executors and Assigns the Heir shall not have it 93 Of a Pepper Corn a good consideration to raise an Use 249 Restrictive words what shall be so construed in a Fine 115 116 Reversion A Fine thereof executed by the Attornment of the Lessee for years 117 S. Scandalum Magnatum ACtion thereon 98 Visne not to be changed therein 216 Servant Where he shall plead his Masters Command 68 Where he may justifie by the Command of his Master 67 Where he shall not be charged in Trover for taking by the Command of his Master 242 Where a delivery of Goods to him is a delivery to the Master 309 Sequestration Out of Chancery whether pleadable to an Action of Trespass at the Common Law 255 256 Of Tythes of a Rectory cannot be for Repairs of the Chancel 254 255 256 257 258 259 Sheriff Case doth not lie against him for returning Cepi Corpus paratum habeo though the party doth not appear 83 84 85 86 Escape doth not lie against him where he takes Bail though not sufficient 177 Serjeant at Law Whether he have the priviledge of being sued in the Common Pleas and no where else 296 Statutes Of England where they extend to Barbadoes 45 46 47 Where there are no negative words in it the Authority of the Kings Bench is not abridged 129 Where there is a prohibitory Clause in it the Party is not confined to the manner therein expressed otherwise upon a Clause giving a penalty 128 Contra formam Statut extends to more than one Statute 129 Statute of 5 Eliz. Action lies thereon in the Courts of Westminster 246 Statute of 13 Eliz. hath a retrospect to charge the Receivers Lands for a Debt due to the King 248 Where the Conclusion ought to be contra formam Statuti 301 If an Offence be at the Common Law for which a Penalty is given by the Statute you may proceed either at Law or upon the Statute 301 A Statute being a general Law need not be recited 99 If recited false and there is enough to maintain the Action which is true 't is well enough ibid. Substance Where 't is found it makes the Issue good 5 6 179 Superior respondeat where this Rule is to be admitted 120 121 Supersedeas Must be delivered by the old Sheriff to the new one 217 Surrender To a Disseisor to the use of another who is admitted and good because the Admittee is not in under the Disseisor but the Surrenderor 287 Such a Surrender to the Disseisor ut faciat voluntatem quaere if good 288 T. Tail FOrfeited for Treason 132 135 No such Estate at the Common Law 131 It was created by the Statute de donis 134 Time Ought not to be made parcel of the Issue 145 184 What shall be said time out of Memory 320 The six Months shall be computed according to the Calender 58 Tythes Shall not be paid for Brick 77 Nor for Pidgeons ibid. Prescription by a Lay Man in modo decimandi good but not in non decimando 321 Whether a Layman may prescribe for them in prender or not 321 Title What shall be accompted a buying a pretended Title within the Statute what not 67 Toll How many sorts there are 143 Travers Where 't is immaterial and where not 19 67 68 Where 't is naught 46 55 Where it need not to be made there being sufficient matter pleaded before to avoid the Title 60 Where 't is necessary and omitted 't is substance and makes the Pleading ill 60 Where 't is good 85 One Prescription being contrary to another the first must be traversed 104 105 Where the Charge in the Declaration is not fully answered there must be a Traverse as the Defendant being sued as Executor who pleaded that another was Executor and Superstes 168 Travers upon a Travers where it shall be and where not 183 Where it shall not be of a Sheriffs Return 10 11 Absque hoc quod legitimo modo oneratus no good Traverse 54 55 Trespass Recovery therein where it shall be a good barr in Trover 318 319 Tryal No new Tryal allowed in an Action of Scandalum Magnatum 150 New Tryal granted by the direction of a Judge 199 200 Trover Where it may be brought upon a possession in Law as by an Executor 168 It will lye though the Possession be changed before the Action brought 243 Where the conversion ought to be found demand and refusal will not make a conversion 244 Trust Decree in Chancery to enforce the execution of a Trust 88 V. Variance BEtween the finding and the pleading if it be not substance doth not hurt 5 Between the Record as pleaded and the Record it self 246 Between the Covenant and the Declaration 269 If an Action be brought against three and a nolle prosequi entred as to one and a Writ of Enquiry against the rest whether they must not all be named in the Writ 284 In Debt upon simple contract the least variance is fatal 6 Between the two Actions a Recovery in one cannot be pleaded in barr of the other 42 43 Verdict Where it shall cure a bad Declaration 66 213 Where it helps the misrecital of an Act of Parliament 241 Videlicet where it shall be transposed to support an Action 98 99 Visne Not to be changed in