Grantee of the Rent-charge is now dispenc'd with which was not before the Statute For if that were now requisite the Conizors could not only not distrain for the Rent due before the Fine but not for the Rent due since the Fine nor doth the Statute help the matter because the Cestuy que use is in possession of the Rent by the Statute and therefore needs no Attornment for that is true when the Conizee hath a perfect possession but without Attornment the Conizee had no perfect possession impowring him to distrain and therefore the Statute can bring no perfect possession to the uses to that end And so Sir Edward Coke agrees the Law Cok. Litt. f. 307. Sect. 55â— that since Littleton wrote If the Conizee of a Fine before Attornment by Deed indented and inroll'd bargains and sells a Seigniory to another the Bargainee shall not distrain because the Conizee that is the Bargainor could not for want of Attornment But on the other side a man perfectly seis'd of a Seigniory Rent Reversion or Remainder bargains and sells by Deed indented and inroll'd according to the Statute the Bargainee shall distrain without Attornment by vertue of the Statute And if a Fine be now levied to a man to the use of a third person the third person shall distrain without any Attornment made not only to himself by reason of the Statute but to the Conizee by the Resolution in Sir Moyle Finch his Case for otherwise the Fine were to little purpose Which Case though it make an Attornment not necessary where it is impossible to be had that the Conveyance might not be useless in effect and an intended right to be de novo introduc'd altogether hindred Shall it therefore destroy an old Attornment which cannot but be had and is still in being for no other use or end but to deprive the Conizors of a Rent and former Right justly due to introduce a general inconvenience upon all that have granted Leases for lives and are occasioned to settle their Estates And there is great difference between a Fine levied of a Reversion or of a Rent-charge to the use of a third person and to the use of the Conizors for a third person can never distrain unless either an Attornment were to the Conizee which is impossible because no possession continues in him so as to receive an Attornment or unless the construction of the Statute according to Sir Moyle Finch his Case to make the Conveyance of effect to Cestuy que use made the Attornment because it could not be had not necessary which is a great strain and violence upon the true reason of Law That a Conveyance which in reason could not be good without Attornment should be sufficient because it could not have an Attornment which was necessary to make it sufficient And this practice hath been frequent since the Statute of Uses Sir Will. Pelham's Case as in making a Recovery against his nature to be a forfeiture because taken as a Common Conveyance To make Vses declared by Indenture between the parties made a year after the Recovery to be the Vses of the Recovery Downan's Case 9. Rep. with such Limitations as are mentioned in Downan's Case the 9. Rep. L. Cromwell's Case 2. Rep. f. 72. b. To make a Rent arise out of the Estate of Cestuy que use upon a Recovery which was to arise out of the Estate of the Recoveror and his possession which is a principal point in Cromwell's Case and resolv'd because by the intention of the parties the Cestuy que use was to pay the Rent 14 Eliz. Harwell versus Lucas Moore 's Rep. f. 99. a. n. 243. Bracebridge's Case is eminent to this purpose Tho. Bracebridge seis'd of the Mannor of Kingbury in Com. Warwick made a Lease for One and twenty years of Birchin Close parcel del Mannor to Moore and another Lease of the same Close for Six and twenty years to commence at the end of the first Lease to one Curteis rendring Rent and after made a Feoffment of the Mannor and all other his Lands to the use of the Feoffees and their Heirs and Assigns upon Condition that if they paid not 10000 l. within fifteen daies to the said Tho. Bracebridge or his Assigns they should stand seiz'd to the use of Bracebridge and Joyce his Wife the Remainder to Thomas their second Son in tail with divers Remainders over The Remainder to the Right Heirs of Thomas the Father Livery was made of the Land in possession and not of Birchin Close and no Attornment the Feoffees paid not 10000 l. whereby Bracebridge the Father became seis'd and the first Tenant for years attorn'd to him Adjudg'd 1. That by Livery of the Mannor Birchin Close did not pass to the Feoffees without Attornment 2. That the Attornment of the first Lessee was sufficient Moore f. 99. n. 243. 3. Though the use limited to the Feoffees and their Heirs was determined before the Attornment yet the Attornment was good to the contingent use upon not paying the mony In the Resolution of this Case Wild Archer and Tyrrell Justices were for the Plaintiff and Vaughan Chief Justice for the Defendant Trin. 21. Car. II. C. B. Rot. 1714. The King Plaintiff in a Quare Impedit per Galfridum Palmer Atturnatum suum Generalem Robert Bishop of Worcester Thomas Jervis Esquire and John Hunckley Clerk Defendants THE King counts That Queen Elizabeth was seis'd of the Advowson of the Church of Norfield with the Chappel of Coston in gross in Fee in Jure Coronae and presented one James White her Clerk who was admitted instituted and inducted That from the said Queen the Advowson of the said Church with the said Chappel descended to King James and from him to King Charles the First and from him to his Majesty that now is who being seis'd thereof the said Church with the Chappel became void by the death of the said James White and therefore it belongs of right to him to present and the Defendants disturbe him to his damage of 200 l. which the said Attorney is ready to verifie for the King The Defendants plead severally and first the Bishop that he claims nothing in the said Church and the Advowson but as Ordinary The Defendant Jervis saith That long before the said Presentation suppos'd to be made by the late Queen one Richard Jervis Esquire was seis'd of the Mannor of Norfield with the Appurtenances in Com. praedicto to which the Advowson Ecclesiae praedictae tunc pertinuit adhuc pertinet in his Demesne as of Fee and so seis'd the said Church became void by the death of one Henry Squire then last Incumbent of the said Church and so continued for two years whereby the said late Queen praetextu lapsus temporis in default of the Patron Ordinary and Metropolitan Ecclesiae praedictae pro tempore existentis dictae nuper Reginae devolutae by her Prerogative afterward that is tertio die Decembris
therefore he shall not assign it A Guardian in Soccage cannot transferr his Custody because it is a personal Trust but the Trust of this special Guardian is more personal therefore that he shall transferr it concludes strangely The Office of a Philizer is an Office of personal Trust to do the business of the Court and not assignable 28 H. 8. f. 7. Dyer no Execution can be upon it Sir George Reynels Case an Office of Trust and Confidence cannot be granted for years because then it might go to persons that is to Executors or Administrators never trusted or confided in So is Littleton expresly That all Offices of Trust Sect. 379. as Steward Constable Bedlary Bailiffwick must be personally occupied unless they be granted to be occupied by a Deputy and are not assignable And a more near or tenderer Trust cannot be than the Custody and Education of a mans Child and Heir and preservation of his Estate It may be said That in these Cases the Law doth particularly appoint the Guardians and therefore no others can be But in the Case at Barr the Father appoints the person not the Law It is true there is a difference in the Cases but not to make the Trust more assignable in the one Case than the other Where the Law appoints who shall be trusted the Trust cannot be refused as in the several Guardians before mentioned But where the Person names the Trustee the Trust may be refused but once accepted it cannot be transfer'd to others more than where the Law names the Trustee An Executor hath a private office of Trust for we speak not of publique and is named by the Testator not by the Law therefore he may refuse but cannot assign his Executorship But it is true an Executor may make an Executor due Circumstances observed who shall discharge the first Testators Trust but the reason is that after Debts paid and Legacies the Surplus of the Goods belongs to the Executor proprio jure An Administrator hath a private Office of Trust he cannot assign nor leave it to his Executor he is not named by the Intestate but by the Law in part for him but not peremptorily he may not claim it if he will because it must pass through the Ordinary A mans Bailiff or Receiver are Offices of personal Trust and not assignable so is the Office of every Servant An Arbitrator or one authorized to sell a mans Land to give Livery or receive it cannot assign it is a personal Confidence 1. A Custody is not in its nature Testamentary it cannot pay Debts nor Legacies nor be distributed as Alms. 2. It is not accomptable for to the Ordinary as Intestates Goods are 3. The Heir ought to have a Guardian without interruption but an Executor may be long before he proves the Will and may at length refuse An Administration long before it be granted and after may be suspended by Appeal and in these times the Ward hath no certain Guardian responsal for his Estate or Person Shopland's C. 3 Jac. Cr. f. 99. And where it may be said That these are naked Authorities and the persons have no Interest but a Guardian hath Interest he may lett and sett the Wards Land during minority Avow in his own name Grant Copy-hold Estates and the like It is an Interest conjoyned with his trust for the Ward I speak not here of equitable trusts without which Interest he could not discharge the trust but it must be an Interest for himself which is transferrable or shall go to his Executor All Executors and Administrators have Interest and Property necessary to their Trusts for they may sell the Goods or Leases of the Testator or Intestate without which they could not execute the Trust A Monk made an Executor might do the like who in his own right could have no Interest or Property But such Interest proves not that the Executors or Administrators may assign their Trust Guardian in Soccage may demise his Guardianship and grant over his Estate N. Br. f. 145. b. Letter H. quod nota or that it shall go to their Executors for it is agreed in that Case of Shopland That such Interest as a Guardian in Soccage hath shall not go to his Executor but is annexed to his Person and therefore not transferrable So as I take the sense of the Act collected in short to be Whereas all Tenures are now Soccage and the next of kinn to whom the Land cannot descend is Guardian until the Heirs Age of Fourteen yet the Father if he will may henceforth nominate the Guardian to his Heir and for any time until the Heirs Age of One and twenty and such Guardian shall have like remedy for the Ward as the Guardian in Soccage by the Common Law hath Another Exposition of this Act hath been offer'd as if the Father did devise his Land by way of Lease during the minority of the Heir to him to whom he gave the Custody in Trust for the Heir and so the Land was assignable over and went to the Executors but follow'd with the Trust 1. This is a forc'd Exposition to carry the Custody to any Stranger to the Father or to the Child or to any that may inherit the Land contrary to the ancient and excellent policy of the Law 2. By such an Exposition the Heir should have no Accompt of such a Lessee as he may against a Guardian but must sue in equity for this Statute gives Actions such as Guardians might have to him who hath the Custody but gives none against him 3. If such Lessee should give the Heirs marriage Coke Litt. f. 896. the Heir hath no Remedy but the Guardian in Soccage shall accompt for what the marriage was worth Stat. Malbridge c. 17. The Statute only saith That such person nominated by the Father may take to his Custody the Profits of all Lands Tenements and Hereditaments of such Child and Children and also the Custody Tuition and Management of the Goods Chattels and personal Estate of such Child or Children And may bring such Action in relation thereto as a Guardian in Soccage might do None of which words will charge him with the value of the Marriage if he had nothing for it Na. Br. f. 139. b Lett. H. 4. If the Heir be in custody of such a Lessee and be Guardian by nearness of kinn to another Infant The Guardian of the Heir by Law is Guardian to both but such a Lessee hath no pretence to be Guardian of the second Infant by any word of the Act For he is neither an Hereditament or Goods or Chattels of the first Infant As to the second part If the Father being of Age should devise his Land to J. S. during the Minority of his Son and Heir in trust for his Heir and for his Maintenance and Education until he be of Age. This is no devising of the Custody within this Statute for he might have done this before
the Statute If the Father under Age should make such a Devise it were absolutely void for the same syllables shall never give the Custody of the Heir by the Father under Age which do not give it by the Father which is of Age. But in both Cases a Devise of the Custody is effectual and there is no reason that the Custody devis'd shall operate into a Lease when a Lease devis'd shall not operate into a Custody which it cannot do If a man devise the Custody of his Heir apparent to J. S. and mentions no time either during his Minority or for any other time this is a good devise of the Custody within the Act if the Heir be under Fourteen at the death of the Father because by the Devise the Modus habendi Custodiam is chang'd only as to the person and left the same it was as to the time But if above Fourteen at the Fathers death then the Devise of the Custody is meerly void for the incertainty For the Act did not intend every Heir should be in Custody until One and twenty Non ut tamdiu sed ne diutius therefore he shall be in this Custody but so long as the Father appoints and if he appoint no time there is no Custody If a man have power to make Leases for any term of years not exceeding One hundred and he demises Land but expresseth no time shall this therefore be a Lease for One hundred years There is no Reason it should be a Lease for the greatest term he could grant more than for the least term he could grant or indeed for any other term under One hundred Therefore it is void for incertainty and the Case is the same for the Custody For if the Father might intend as well any time under that no Reason will enforce that he only intended that And to say he intended the Custody for some time therefore since no other can be it must be for that will hold as well in the Lease and in all other Cases of incertainty If a man devises Ten pounds to his Servant but having many none shall have it for the incertainty It may be demanded If the Father appoint the Custody until the Age of One and twenty and the Guardian dye what shall become of this Custody It determines with the death of the Guardian and is a Condition in Law and the same as if a man grant to a man the Stewardship of his Mannor for Ten years or to be his Bailiff It is implyed by way of Condition if he live so long A Copyholder in Fee surrenders to the Lord Dyer 8 Eliz. f. 251. pl. 90. ad intentionem that the Lord should grant it back to him for term of life the Remainder to his Wife till his Son came to One and twenty Remainder to the Son in tayl Remainder to the Wife for life The Husband died The Lord at his Court granted the Land to the Wife till the Sons full age The Remainders ut supra The Wife marries and dies Intestate The Husband held in the Land The Wives Administrator and to whom the Lord had granted the Land during the Minority of the Son enters upon the Husband This Entry was adjudg'd unlawful because it was the Wives term but otherwise it had been if the Wife had been but a Guardian or next Friend of this Land The like Case is in Hobart Balder and Blackburn f. 285. 17 Jac. If it be insisted That this new Guardian hath the Custody not only of the Lands descended or left by the Father but of all Lands and Goods any way acquir'd or purchas'd by the Infant which the Guardian in Soccage had not That alters not the Case for if he were Guardian in Soccage without that particular power given by the Statute he is equally Guardian in Soccage with it and is no more than if the Statute had appointed Guardian in Soccage to have care of all the Estate of the Infant however he came by it Besides that proves directly that this new Guardian doth not derive his interest from the Father but from the Law for the Father could never give him power or interest of or in that which was never his The Court was divided viz. The Chief Justice and Justice Wylde for the Plaintiff Justice Tyrrell and Justice Archer for the Defendant Hill 19 20 Car. II. C. B. Rot. 506. Holden versus Smallbrooke IN Trover and Conversion and not Guilty pleaded Robinson the Iury gave a Special Verdict to this Effect That Doctor Mallory Prebendary of the Prebend of Wolvey founded in the Cathedral of Litchfield seis'd of the said Prebend and one Messuage one Barn and the Glebe appertaining thereto and of the Tithes of Wolvey in right of his Prebend 22 April 13 Car. 2. by Indenture demised to Giles Astly and his Assigns the said Prebend together with all Houses Barns Tenements Glebe Lands and Tithes thereto belonging for three Lives under the ancient Rent of Five pounds ten shillings Astly being one of the Lives died seis'd of the Premisses at whose death one Taverner was Tenant for one year not ended of the Demise of Astly of the Messuage Barn and Glebe Lands and in possession of them whereupon the Plaintiff entred into the Messuage and Glebe and was in the possession of the same and of the Tithes as Occupant And afterwards Frances Astly the Relict of the said Giles Astly enters upon the Messuage and claims the same as Occupant in haec verba Frances Astly Widow of Giles Astly enters upon the House and claims the same with the Glebe and Tithe as Occupant Taverner attorns to Frances Astly and afterwards grants and assigns all his Estate in the Premisses to the Plaintiff afterwards Conquest the Husband of Frances Astly took one Sheaf of Corn in the name of all the Tithes and afterwards demised the Tithes to the Defendant The Tithes are set forth and the Defendant took them whereupon the Plaintiff brought this Action Before I deliver my Opinion concerning the particular Questions before open'd arising upon this Record I shall say somewhat shortly of Natural Occupancy and Civil Occupancy First opening what I mean by those terms then briefly shewing their difference as far only as is material to the Questions now before me I call Natural Occupancy the possession either of such natural things as are immoveable fixt and permanent as Land a Pool River Sea for a Sea is capable of Occupancy and Dominion naturally as well as Land and hath naturally been in Occupancy as is demonstrated in Mr. Selden's Mare Clausum at large which lye unpossess'd and in which no other hath prior right Or of things natural and moveable either animate as a Horse a Cow a Sheep and the like without number or Inanimate as Gold precious Stones Grain Hony Fruit Flesh and the like numberless also wherein no man until the possession thereof by Occupancy had any other right than every man had which is
The first is Haynsworths and Prettyes Case Where a man seis'd of Land in Soccage having Issue two Sons and a Daughter devis'd to his youngest Son and Daughter Twenty pounds apiece to be paid by his eldest Son and devis'd his Lands to his eldest Son and his Heirs upon Condition if he paid not those Legacies that his Land should be to his second Son and Daughter and their Heirs The eldest Son fail'd of payment After Argument upon a Special Verdict It was resolv'd by the Court clearly That the second Son and Daughter should have the Land 1. For that the devise to his Son and his Heir in Fee Hill 41. El. Cr. 833. a. being no other then what the Law gave him was void 2. That it was a future devise to the second Son and Daughter upon the contingent of the eldest Sons default of payment 3. That it was no more in effect than if he had devis'd That if his eldest Son did not pay all Legacies that his land should be to the Legatories and there was no doubt in that Case but the land in default of payment should vest in them Which Case in the reason of law differs not from the present Case where the land is devis'd by devise future and executory to the Nephew upon a contingent to happen by the Testators Son and Daughters having no issue 18 Jac. Pell Browns C. Cro. f. 590. The second Case is that of Pell and Brown the Father being seis'd of certain land having Issue William his eldest Son Thomas and Richard Brown devis'd the land to Thomas and his Heirs for ever and if Thomas died without Issue living William then William should have the lands to him his Heirs and Assigns 1. This was adjudg'd an Estate in Fee-simple in Thomas 2. That William by way of Executory devise had an Estate in Fee-simple in possibility if Thomas died without Issue before him And it being once clear That the Estate of Thomas was a Fee-simple determinable upon a contingent and not an Estate tayl and so in the present case it being clear'd that George the Testators Son had the land descended to him in Fee from the Testator and took no Estate tayl expresly or by implication from the Will it will not be material whether the Contingent which shall determine that Fee-simple proceeds from the person which hath such determinable Fee or from another or partly from him and partly from another as in Haynsworth's Case the Son determined his Fee-simple by not paying the Legacies in Pell and Brown's Case Thomas his Fee-simple determined by his dying without Issue living William the Fee-simple vested in George the Son by descent determines when he and his two Sisters dye without Issue and upon such determination in every of these Cases the future and executory devise must take effect But the great Objection is That if this should be an executory devise to the Nephew upon the contingent of George the Son and both his Sisters dying without Issue It will be dangerous to introduce a new way of perpetuity for if a man have several Children and shall permit his Estate to descend or by his Will devise it to his Heir so as he may therein have an unquestionable Fee-simple which is the same with permitting it to descend he may then devise it futurely when all his Children shall dye without Issue of their bodies to J. S. and his Heirs as long as A. B. and C. strangers shall have any Heirs of their bodies living and then to a third person by like future devise For if he should devise it futurely to J. S. and his Heirs as long as J. S. had any Heirs of his body it were a clear Estate tayl in J. S. upon which no future devise could be but it would be a Remainder to be docked This Objection was in some measure made by Doderidge in Pell and Browns Case and the Iudges said there was no danger Vid. Stiles Rep. Gay Gaps Case 258 275. because the Estate in Fee of Thomas did not determine by his dying without Heir of his body generally but by dying without Issue living William for if the land had been given to Thomas and his Heirs for ever and if he died without Heirs of his body then to William and his Heirs Thomas his Estate had been judg'd an Estate tayl with the Remainder to William and not a Fee upon which no future or executory devise can be So was it adjudg'd in Foy and Hinds Case 22 Jac. Cr. f. 695. 6. and anciently 37 Ass p. 18. 5. H. 5. f. 6. and to be within the reason of Mildmay and Corbets Case of Perpetuities But in Pell and Browns Case the Iudges said it was more dangerous to destroy future devises than to admit of such Perpetuities as could follow from them any way by determinable Fee-simples which is true for a Fee simple determinable upon a contingent is a Fee-simple to all intents but not so durable as absolute Fee-simples And all Fee-simples are unequally durable for one will escheat sooner than another by the failer of Heirs An Estate of Fee-simple will determine in a Bastard with his life if he want Issue An Estate to a man and his Heirs as long as John Stiles hath any Heir which is no absolute Fee-simple is doubtless as durable as the Estate in Fee which John Stiles hath to him and his Heirs which is an absolute Fee-simple Nor do I know any Law simply against a Perpetuity but against Intails of Perpetuity for every Fee-simple is a perpetuity but in the accident of Alienation and Alienation is an incident to a Fee-simple determinable upon a contingent as to any more absolute or more perdurable Fee-simple The Chief Justice Justice Archer and Justice Wylde for the Defendant Justice Tyrrell for the Plaintiff Judgment for the Defendant Hill 21 22 Car. II. C. B. Craw versus Ramsey Philip Craw is Plaintiff and John Ramsey Defendant In an Action of Trespass and Ejectment THE Plaintiff declares That Lionel Tolmach Baronet and Humphrey Weld Esquire January the Twentieth the Sixteenth of the King demis'd to the Plaintiff the Mannor of Kingston with the appurtenances in the County of Surrey one Messuage two Barns one Dove-house two Gardens eighty Acres of Land and ten Acres of Meadow with the appurtenances in Kingston aforesaid and other places and also the Rectory of Kingston aforesaid To have and to hold to the said Philip and his Assignes from the Feast of the Nativity last past for five years next ensuing By virtue whereof he entred into the Premisses and was possessed until the Defendant the said Twentieth of January in the Sixteenth year of the King entred upon him and Ejected him with force to his Damage of Forty pounds To this the Defendant pleads he is not Culpable Vpon a Special Verdict it appear'd That Robert Ramsey Alien Antenatus had Issue 1. Robert 2. Nicholas 3. John 4. George Antenatos
by the party This difference is very material for if the Father could devise the Land in trust for him until his Son came to One and twenty as he can grant the Custody then as in other Cases of Leases for years the Land undoubtedly should go to the Executor or Administrator of him whom the Father named for the tuition and the trust should follow the Land as in other Cases where Lands are convey'd in trust But when he cannot ex directo devise the Land in trust then the Land follows the Custody and not the Custody the Land and the Land must go as the Custody can go and not the Custody as the Land can go Coke Litt. f. 49. a. 1 H. 7. 28. 8 H. 7. 4. As where a House or Land belongs to an Office or a Chamber to a Corody the Office or Corody being granted by Deed the House and Land follows as incident or belonging without Livery because the Office is the principal and the Land but pertaining to it A second Consideration is That by this Act no new custody is instituted but the office of Guardian as to the duty and power of the place is left the same as the Law before had prescrib'd and setled of Guardian in Soccage But the modus habendi of that office is alter'd by this Act in two Circumstances The first 1. It may be held for a longer time viz. to the Age of the Heir of One and twenty where before it was but to Fourteen 2. It may be by other persons held for before it was the next of Kindred not inheritable could have it now who the Father names shall have it So it is as if an Office grantable for life only before should be made grantable for years by Parliament or grantable before to any person should be made grantable but to some kind of persons only The Office as to the Duty of it and its essence is the same it was But the Modus habendi alter'd If therefore this new Guardian is the same in Office and Interest with the former Guardian in Soccage and varies from it only in the Modus habendi then the Ward hath the same legal Remedy against this Guardian as was against the old But if this be a new Office of Guardianship differing in its nature from the other the Heir hath no remedy against him at all in Law For though this new Guardian be enabled to have such Actions as the old might have yet this Act enables not the Heir to have like Actions or any other against him as he might against the Guardian in Soccage The Intent of this Statute is to priviledge the Father against common right to appoint the Guardian of his Heir and the time of his Wardship under One and twenty But leaves the Heirs of all other Ancestors Wards in Soccage as before Therefore I hold 1. That such a Special Guardian cannot transferr the Custody of the Ward by Deed or will to any other 2. That he hath no different Interest from a Guardian in Soccage but for the time of the Wardship 1. When an Act of Parliament alteâ—s the Common Law the meaning shall not be strained beyond the words except in Cases of publick Vtility when the end of the Act appears to be larger than the enacting words But by the words the Father only can appoint the Guardian therefore the Guardian so appointed cannot appoint another Guardian 2. The Mother hath the same concern for her Heir as the Father hath But she cannot by the Act name a Guardian therefore much less can the Guardian named by the Father 3. The Father cannot by the Act give the custody to a Papist but if it may be transferr'd over by him whom the Father names or by Act in Law go to his Executor or Administrator it may come to a Papist against the meaning of the Act. 4. Offices or Acts of personal Trust cannot be assign'd for the Trust is not personal which any man may have Dyer 2 3 Eliz. f. 189. b. 5. At the Common Law none could have the Custody and Marriage of a mans Son and Heir apparent from the Father yet the Father could not grant or sell the Custody and Marriage of his Heir apparent though the marriage was to his own benefit as was resolved by the greater number of the Iudges in the Lord Bray's Case who by Indenture had sold for Eight hundred pounds the Custody and Marriage of his Son and Heir apparent in the time of Henry the Eighth to the Lord Audley Chancellor of England Lord Cromwell Lord Privy Seal Sir William Paulett Treasurer of the Houshold The Marquis of Winchester Lord Treasurer Dyer supra f. 190. b. pl. 19. The Reason given is That the Father hath no Interest to be granted or sold to a Stranger in his eldest Son but it is inseparably annex'd to the person of the Father Two Judges differ'd because an Action of Trespass would lye for taking away a mans Heir apparent and marrying him whence they conclude he might be granted as a Chattel 11 H. 4. f. 23. a. Fitz. N. Br. Tresp f. 90. b. Lett. G. f. 89. Lett. O. But an Action of Trespass will lye for taking away ones Servant For taking away a Monk where he was cloyster'd in Castigationem Pro Uxore abducta cum bonis Viri yet none of these are assignable West 1. c. 48. By the Statute of Westminster the First If the Guardian in Chivalry made a Feoffment of the Wards Lands in his Custody during his Minority the Heir might forthwith have a Writ of Novel Disseisin against the Guardian and Tenant and the Land recover'd should be deliver'd to the next of kinn to the Heir to be kept and accompted for to him at his full Age. This was neither Guardian in Soccage nor Chivalry Coke 2. Inst f. 260. b. By 4 5 P.M. c. 8. No woman child under 16. can be taken against his will whom the Father hath made Guardian by Deed or Will yet this is no Lease of the Custody till 16. nor is it assignable Ratcliffs C. 3. Rep. Shoplands C. 3 Jac. Cr. f. 99. but a special Guardian appointed by the Statute and such a Guardian could not assign over nor should it go to his Executors by the Express Book This Case likewise and common Experience proves That Guardian in Soccage cannot assign nor shall the Custody go to his Executors though some ancient Books make some doubt therein For expresly by the Statute of 52 H. 3. the next of kin is to answer and be accomptable to the Heir in Soccage as this special Guardian is here by Westminster the First These several sorts of Guardians trusted for the Heir could neither assign their Custody nor did it go to their Executors because the Trust was personal and they had no Interest for themselves The Trust is as personal in this new Guardian nor hath he any Interest in it for himself and
unnatural For as a Husband to her the Son is both to command and correct the Mother as his wife but as a Son to be commanded and endure her Correction as Mother So between the Father and Daughter there is a Reverence from the Daughter to the Father inconsistent with the parity between man and wife and Laws give often a power over the daughter which they forbid over the wife And the reverence and obedience from the Grand-child to the Grand-mother in what degree soever is the same as to the Mother and the same consequences follow For if the Mother or Father have power absolute or in tantum over the Son or Daughter to create reverence to them the same hath the Grand-mother or Grand-father and so forwards For if B. the Father have absolute or qualified power over A. the Son and C. the Grand-father hath the same over B. the Father then hath C. the Grand-father the same over A. the Son not immediately but mediately by the Father To this purpose the Case put in Platt's Case in the Com. is most opposite A woman Guardian of the Fleet marries her Prisoner in Execution he is immediately out of Execution for the Husband cannot be Prisoner to his Wife it being repugnant that she as Jaylor should have the Custody of him and he as Husband the Custody of her To this purpose also it is remarkable what that great Scholar and Lawyer Hugo Grotius hath Eximo ab hac generalitate matrimonium parentum cujuscunque gradus cum liberis quae quo minus licita sint ratio ni fallor satis apparet Grot. de Jure belli l. 2. c. 5 Paragr 12. Nam nec maritus qui superior est lege matrimonii eam reverentiam praestare potest matri quam natura exigit nec patri filia quia quanquam inferior est in matrimonio ipsum tamen matrimonium talem inducit societatem quae illius necessitudinis reverentiam excludat But as to other Relations the same Author in the same place De Conjugiis eorum qui sanguine aut affinitate junguntur satis gravis est quaestio non raro magnis motibus agitata nam causas certas ac naturales cur talia conjugia ita ut legibus aut moribus vetantur illicita sint assignare qui voluerit experiendo discet quam id sit difficile imo praestari non possit I add only That as the mutual duties of Parents and Children consist not with their marrying one another so the Procreations between them will have a necessary and monstrous inconsistence of Relation For the Son or Daughter born of the Mother and begot by the Son as born of the mother will be a Brother or Sister to the Father but as begot by him will be a Son or Daughter So the Issue procreate upon the Grand-mother as born of the Grand-mother will be Uncles or Aunts to the Father as begot by the Son they will be Sons or Daughters to him and this in the first degrees of Kindred Besides by the Laws of England Children inherit their Ancestors without limit in the right ascending Line and are not inherited by them But in the Collateral Lines of Uncle and Nephew the Uncle as well inherits the Nephew as the Nephew the Uncle In the Civil Law the Agnati viz. the Father or Grand-fathers Brother are loco parentum and the Canons borrow it thence but that is because they were Legitimi Tutores or Guardians by Law to their Nephews with us the Lord of whom the Land is held is Guardian or the next of Kin to whom the Land cannot descend and by the same reason they should be loco parentum In a Synod or Convocation holden in London in the year 1603. of the Province of Canterbury by the Kings Writ and with Licence under the Great Seal to consent and agree of such Canons and Constitutions Ecclesiastick as they should think fit Several Canons were concluded and after ratified under the Great Seal as they ought to be among which the Ninety ninth Canon is this No person shall marry within the Degrees prohibited by Gods Law and expressed in a Table set forth by Authority Canons 1 Jac. 1603. Can. 99. in the year of our Lord 1563. and all marriages so made and contracted shall be adjudg'd incestuous and unlawful And the aforesaid Table shall be in every Church publickly set up and fixed at the charge of the Parish This Table was first publisht in Arch-bishop Parker's time in 1563. I know not by what Authority then and after made a Canon of this Convocation with the Kings Licence under the Great Seal and so confirm'd and since continually set up in Parishes By which expresly the Degrees by Gods Law prohibited are said to be expressed in that Table and is the same as No person shall marry within the Degrees prohibited by Gods Law and which are expressed in the Table Any other Exposition of the Canon will be forc'd and violent and the Table set up for the Peoples direction from Incest but a snare and a deceit to them And this marriage is not prohibited in that Table There is an Objection That by the Canon and Civil Law this Degree of Marriage in question is prohibited It is true but by the Statute of 32 H. 8. c. 38. All Prohibitions by the Canon or Civil Law quatenus Canon or Civil Law are wholly excluded and unless the marriage be prohibited by the Divine Law it is made lawful But suppose the Canon or Civil Law were to be taken as a measure in the subject of marriage of what were lawful With the Canon Law of what time would you begin for it varies as the Laws Civil of any Nation do in successive Ages Before the Council of Lateran it was another Law than since for marriages before were forbid to the Seventh Degree from Cosen Germans inclusively since to the Fourth Every Council varied somewhat in the Canon Law and every Pope from the former and often from himself as every new Act of Parliament varies the Law of England more or less and that which always changeth can be no measure of Rectitude unless confin'd to what was the Law in a certain time and then no reason will make that a better measure than what was the Law in a certain other time As the Law of England is not a righter Law of England in one Kings Reign than in another yet much differing Nerva forbad it Heraclius permitted it Grot. Annot. 167. So doth the Civil Law before the marriage of Claudius the Emperour with Agrippina his Brothers daughter the marriage of the Uncle with his Neece was not allowed among the Romans But by a Law of the People and Senate upon that Occasion such marriages were permitted Many others of the like kind Nor did the Canon Law and perhaps truly take more persons to be prohibited within the Levitical Degrees than are there expressed What else is the meaning of that place
could not be granted but to one because its nature was confin'd to one A man cannot have an Assise of Common in his own Soyl nor an Admensuratio pasturae and a Common being a thing that lies in grant he cannot grant it to himself and no other can grant it in his Soyl to him So as I conclude one or more may have Solam separalem Communiam from other Commoners but not from the Lord who is no Commoner I cannot discern the use of this kind of Prescription for the Tenants for if it be to hinder the Lord from approving the Common I think they are mistaken The Statute of Merton gives the Owner of the Soyl power to approve Common Grounds appendant Cok. 2. Instit f. 86.475 West 2. c. 46. or appurtenant by Prescription as this is if sufficient Pasture be left for the Commoners without considering whether the Commoners had the Common solely to themselves excluding the Lord or otherwise For as to Approvement which the Statute provided for the Lord was equally bound pasturing with his Tenants or not pasturing with them Therefore the Statute consider'd not that but that the Lord should approve his own ground so the Commoners had sufficient whatever the nature of the Common were To prescribe to have in such a part of the Lord's Lands Communiam for their Cattel excludes not the Lord. To prescribe to have their Pasturam Communem for their Cattel is the same thing and excludes not the Lord. To prescribe to have solam separalem Communiam is naught by Admittance Why then to prescribe to have solam separalem Pasturam Communiam which is agreed to be the same with Communiam is naught also Now to express another way that they have solam separalem Pasturam Common to them or wherein they Common changeth not the matter in the meaning but order of the words The Statute of Merton is cap. 4. 1. The Lords could not make their profit de Vastis Boscis Pasturis Communibus when the Tenants had sufficientem pasturam quantum pertinet ad tenementa sua 2. Si coram Justiciariis recognitum sit quod tantum pasturae habeant quantum sufficit c. 3. Et quod habeant liberum ingressum egressum de tenementis suis usque ad pasturam suam tunc recedant quiet 4. And that then the Lords faciant commodum suum de terris vastis pasturis 5. Et si per Assisam recognitum fuerit quod non habent sufficientem pasturam 6. Tunc recuperent Seisinam suam per visum Juratorum ita quod per Sacramentum eorum habeant sufficientem pasturam 7. Quod si Recognitum sit quod habeant sufficientem pasturam c. Communibus pasturis is once named Pastura sua for Communia sua seven times and the word Communia not named in this Act but where it mentions 8. The Writ of Novel disseisin de Communia pasturae suae which makes eight times 1. The granting solam separalem Pasturam of or in Black-acre may signifie an exclusion only of having Pasture in White-acre or any other place than Black-acre 2. The granting solam separalem pasturam of or in Black-acre may signifie the exclusion of any other person to have Pasture in Black-acre but the Grantee in which sense the word Solam signifies as much as totam pasturam 3. If the Grant be of all the Pasture the Grantor reserves nothing to himself of that which he grants but all passes into the Grantee but if the Grantor restrains the Grant after general words of granting all the Pasture the Restriction is for the benefit of the Grantor Therefore when the Grant is of Solam separalem pasturam of or in Black-acre all the Pasture is supposed to pass without restriction to the Grantee but if words follow in the Grant pro duabus vaccis tantum or pro averiis levantibus cubantibus super certum tenementum that is a restriction for the benefit of the Grantor for a man cannot in the same Grant restrain for his own benefit the largeness of his Grant and yet have no benefit of his restriction The Court was divided The Chief Justice and Justice Tyrrell for the Plaintiff Justice Archer and Justice Wylde for the Defendant Hill 20 21 Car. II. C. B. Rot. 1552. Adjud'gd 23 Car. II. C. B. Gardner vers Sheldon In Ejectione Firmae for Lands in Sussex Vpon not Guilty pleaded IT is found by the Special Verdict that long before the supposed Trespass and Ejectment One William Rose was seis'd of the Land in question in his Demesne as of Fee and so seis'd made his last Will and Testament November the Second 13 Jac. prout sequitur and sets forth the Will wherein among other things As touching the Lease which I have in my Farm called Easter-gate and all my Interest therein I do give and assign the said Lease and all my Interest therein unto my Friends John Clerk George Littlebury and Edward Rose to the intent that with the Rents and Profits thereof they may help to pay my Debts if my other Goods and Chattels shall not suffice And after my Debts paid my will is that the Rents and Profits of the said Land shall wholly go for and towards the raising of Portions for my two Daughters Mary and Katherine for each of them Six hundred pounds and for my Daughter Mary Two hundred pounds more which was given her by my Father her Grand-fathers Will. And those Sums being raised my will is the Rents and Profits of the said Land shall be wholly to the use and benefit of my Son George c. Item I give to my daughter Mary my greatest Silver Bowl Item I give to my daughter Katherine one plain Silver Bowl c. My will and meaning is That if it happen that my Son George Mary and Katherine my daughters to die without Issue of their Bodies lawfully begotten then all my Free-lands which I am now seis'd of shall come remain and be to my said Nephew William Rose and his Heirs for ever They find that the said William Rose the Testator before the Trespass viz. the First of June 14 Jac. died at Easter-gate in the said County of Sussex seis'd as aforesaid That at the time of his death he had Issue of his body lawfully begotten George Rose his only Son and Mary and Katherine his two Daughters That George the Son entred into the Premisses the First of July 14 Jac. and was seis'd prout Lex postulat Then after and before the time of the Trespass viz. June the Eight and twentieth 14 Car. 2. George died so seis'd of the Premisses at Easter-gate aforesaid That at the time of his death he had Issue of his body two Daughters Judith now wife of Daniel Sheldon one of the Defendants and Margaret now wife of Sir Joseph Sheldon the other Defendant That after the death of George their Father the said Judith and Margaret
Relatives and if an Act of Naturalization should thereby make a man a natural Subject the same Subject would have two natural Soveraigns one when he was born the other when naturalized which he can never have more then two Natural Fathers or two Natural Mothers except the Soveraigns be subordinate the Inferior holding his Kingdome as Liege Homager from the Superiour And perhaps in the Case of Severing the Kingdoms Calvins Case 27. as Sir Edward Coke saith Nor can an Act of Parliament in one place take away the natural subjection due to another Prince for want of power And the Law of England being That an Antenatus shall not inherit because an Alien without an Act of Parliament making him none The fiction of an Act in another Kingdom to which England never consented shall not alter the law here because he is made in Ireland as if born there If there were an Act of Parliament in England That persons naturalized in Ireland or Scotland should be no Aliens in England no man thinks that thereby Scotland or Ireland could naturalize a man in terminis in England But a man naturalized there would by consequent be naturalized in England because the law of England did warrant that consequent But to say That a man naturalized in Ireland is not directly naturalized in England but by consequent when the question is Whether one naturalized in Ireland be thereby naturalized in England is to beg for a proof that which is the question Therefore it must be first proved That there is a Law of England to warrant that consequent Inconveniences The Law of England is That no Alien can be naturalized but by Act of Parliament with the assent of the whole Nation 1. Now if this naturalization in Ireland should be effectual for England then a whole Nation should become Natives in England without Act of Parliament of what Country Religion or Manners soever they be by an Act of Ireland 2. If the Parliament of England should refuse to naturalize a number of men or Nation as dangerous or incommodious to the Kingdom yet they might be naturalized whether the Houses of Parliament would or not by an Act of Ireland 3. By this invention the King may naturalize in England without an Act of Parliament as well as he may Denizen for if the Parliament of Ireland enact That the King by Letters Patents shall naturalize in Ireland then they so naturalized in Ireland by Patent will be naturalized in England by consequent so they may enact the Deputy or Council of Ireland to naturalize 4. If an Alien hath Issue an Alien Son and the Father be denizen'd in England and after hath a Son born in England the Law hath been taken That the youngest Son shall inherit the Fathers Land Co. Litr. f. 8. a. Doct Stud. l. 1. Cr. 17 Jac. f. 539. Godfrey Dixons C. So is Sir Edward Coke Litr. f. 8. a. and other Books yet if the elder be naturaliz'd in Ireland the Estate which the youngest hath by the Law of England will be plucked from him Having thus opened the Inconveniences consequent to this Irish Naturalization the next is That Judges must judge according as the Law is not as it ought to be But then the Premisses must be clear out of the established Law and the Conclusion well deduc'd before great Inconveniences be admitted for Law But if Inconveniences necessarily follow out of the Law only the Parliament can cure them 1. I shall begin with the admitted Doctrine of Calvin's Case By that Case He that is born a Subject of the King of England in another Dominion than England is no Alien in England So the Scots born when the King of Scots was King of England are no Aliens those born before in Scotland are Therefore Nicholas Ramsey who is not born the Kings Subject of Ireland must be an Alien in England whose Law by the Rule of that Case makes only Subjects born and not made of another Dominion not to be Aliens in England 2. It is agreed to my hand That an Alien naturalized at this day in Scotland remains an Alien in England notwithstanding 3. By the Doctrine of Calvin's Case a natural born Subject to the Kings person of a Forraign Dominion is not priviledg'd in England from being an Alien else the Antenati of Scotland were priviledg'd for they are natural born Subjects to the Kings person as well as the Postnati 4. It stands not with the Resolution of that Case That the natural born Subjects of the Dominions belonging to the Crown of England qua such should be no Aliens in England which was the principal matter to have been discuss'd but was not in Calvin's Case and chiefly concerns the point in question The Case relied on to justifie the Iudgment in Calvins Case are several Authorities That the King of England's Subjects formerly were never accounted Aliens in England though they were all out of the Realm of England and many within the Realm of France But all these are admitted in that Case as most of them were Dominions belonging to the Crown of England and if so Of Normandy Brittain Aquitain Anjou Gascoigne Guien Calais Jersey and Gernsey Isle of Man Berwick and other Parts of Scotland Ireland Tourney c. What Inference could be made for the Resolution of Calvin's Case That because the Kings natural Subjects of Dominions belonging to the Crown of England as these did were no Aliens in England Therefore that Subjects of a Dominion not belonging to the Crown as the Postnati of Scotland are should be no Aliens in England Non sequitur Therefore it is for other reason then because natural Subjects of Dominions belonging to the Crown of England they were no Aliens by the meaning of that Resolution And the Adequate Reason being found out why they are not Aliens will determine the point in question 1. It was not because they were natural Subjects to him that was King of England for then the Antenati of Scotland would be no Aliens they being natural Subjects to him that is King of England as well as the Postnati 2. It was not because they were natural Subjects of Dominions belonging to the Crown of England for then the Postnati would be Aliens in England for they are not Subjects of a Dominion belonging to the Crown of England 3. It remains then the Reason can be no other but because they were born under the same Liegeance with the Subjects of England which is the direct reason of that Resolution in Calvins Case Calvins Case f. 18. b. a. The words are The time of the birth is of the essence of a Subject born for he cannot be a Subject to the King of England that is to be no Alien unless at the time of his birth he was under the Liegeance and Obedience of the King that is of England And that is the reason that Antenati in Scotland for that at the time of their birth they were not under the
eas in omnibus sequantur In cujus c. T. R. apud Wadestocks ix die Septembris Out of the Close Rolls of King Henry the Third his Time Clause 1 H. 3. dorso 14. The Kings thanks to G. de Mariscis Justice of Ireland The King signifies that himself and other his Lieges of Ireland should enjoy the Liberties which he had granted to his Lieges of England and that he will grant and confirm the same to them Clause 3. H. 3. m. 8. part 2. The King writes singly to Nicholas Son of Leonard Steward of Meth and to Nicholas de Verdenz and to Walter Purcell Steward of Lagenia and to Thomas the son of Adam and to the King of Connage and to Richard de Burgh and to J. Saint John Treasurer and to the other Barons of the Exchequer of Dublin That they be intendant and answerable to H. Lord Arch-bishop of Dublin as to the Lord the King's Keeper and Bailiff of the Kingdome of Ireland as the King had writ concerning the same matter to G. de Mariscis Justice of Ireland Clause 5. H. 3. m. 14. The King writes to his Justice of Ireland That whereas there is but a single Justice itinerant in Ireland which is said to be dissonant from the more approved custome in England for Reasons there specified two more Justices should be associated to him the one a Knight the other a Clerk and to make their Circuits together according to the Custome of the Kingdom of England Witness c. The Close Roll. 5 H. 3. m. 6. Dorso The King makes a Recital That though he had covenanted with Geoffrey de Mariscis That all Fines and other Profits of Ireland should be paid unto the Treasure and to other Bailiffs of the Kings Exchequer of Dublin yet he receiv'd all in his own Chamber and therefore is removed by the King from his Office Whereupon the King by advise of his Council of England establisheth that H. Arch-bishop of Ireland be Keeper of that Land till further order And writes to Thomas the son of Anthony to be answerable and intendant to him After the same manner it is written to sundry Irish Kings and Nobles there specially nominated Clause 7. H. 3. m. 9. The King writes to the Arch-bishop of Dublin his Justice of Ireland to reverse a Judgment there given in a Case concerning Lands in Dalkera between Geoffrey de Mariscis and Eve his wife Plaintiffs and Reignald Talbott Tenant By the Record of the same Plea returned into England the Judgment is reversed upon these two Errors The first because upon Reignald's shewing the Charter of King John the King's Father concerning the same Land in regard thereof desiring peace it was denyed him The second Because the Seisin was adjudged to the said Geoffrey and Eve because Reynald calling us to warranty had us not to warranty at the day set him by the Court which was a thing impossible for either Geoffrey or the Court themselves to do our Court not being above us to summon us or compel us against our will Therefore the King writes to the Justice of Ireland to re-seise Reynald because he was disseised by Erroneous Judgment Clause 28. H. 3. m. 7. The King writes to M. Donenald King of Tirchonill to aid him against the King of Scots Witness c. The like Letters to other Kings and Nobles of Ireland Clause 40. E. 3. m. 12. Dorso The King takes notice of an illegal proceeding to Judgment in Ireland Ordered to send the Record and Process into England It was objected by one of my Brothers That Ireland received not the Laws of England by Act of Parliament of England but at the Common Law by King John's Charter If his meaning be that the Fact was so I agree it but if he mean they could not receive them by Act of Parliament of England as my Brother Maynard did conjecturally inferr for his purpose then I deny my Brothers Assertion for doubtless they might have received them by Act of Parliament And I must clear my Brother Maynard from any mention of an Union as was discoursed of England and Ireland Nor was it at all to his purpose If any Union other than that of a Provincial Government under England had been Ireland had made no Laws more than Wales but England had made them for Ireland as it doth for Wales As for the Judgment Obj. One of my Brothers made a Question Whether George Ramsey the younger Brother inheriting John Earl of Holdernes before the naturalization of Nicholas Whether Nicholas as elder Brother being naturalized should have it from him Doubtless he should if his Naturalizing were good He saith the Plaintiff cannot have Iudgment because a third person by this Verdict hath the Title Answ If a Title appear for the King the Court ex Officio ought to give Iudgment for him though no party But if a man have a prior Possession and another enters upon him without Title I conceive the priority of Possession is a good Title against such an Entry equally when a Title appears for a third that is no party as if no Title appear'd for a third But who is this third party For any thing appears in the Verdict George Ramsey died before the Earl 2. It appears not that his Son John or the Defendant his Grand-child were born within the Kings Liegeance Patient appears to be born at Kingston and so the Daughters of Robert by the Verdict The Acts of Ireland except all Land whereof Office was found before the Act to entitle the King but that is in Ireland for the Act extends not to England If Nicholas have Title it is by the Law of England as a consequent of Naturalization So it may be for the Act of 7 Jac. cap. 2. he that is Naturalized in England since the Act must receive the Sacrament but if no Alien by consequent then he must no more receive the Sacrament than a Postnatus of Scotland Obj. Ireland is a distinct Kingdom from England and therefore cannot make any Law Obligative to England Answ That is no adequate Reason for by that Reason England being a distinct Kingdom should make no Law to bind Ireland which is not so England can naturalize if it please nominally a person in Ireland and not in England But he recover'd by saying That Ireland was subordinate to England and therefore could not make a Law Obligatory to England True for every Law is coactive and it is a contradiction that the Inferior which is civilly the lesser power should compel the Superior which is greater power Secondly He said England and Ireland were two distinct Kingdoms and no otherwise united than because they had one Soveraign Had this been said of Scotland and England it had been right for they are both absolute Kingdoms and each of them Sui Juris But Ireland far otherwise For it is a Dominion belonging to the Crown of England and follows that it cannot be separate from it but by
the Remainder because it is a Collateral warranty but because the Statute de Donis doth not restrain his warranty from barring him in the Remainder as hath been clear'd but leaves it as at Common Law but it doth restrain his warranty from barring him in the Reversion as shall appear There is one Case in Littleton remarkable for many Reasons where the warranty of Tenant in tayl is lineal and not collateral to the person in Remainder and therefore binds not if the Case be Law as may be justly doubted as Littleton is commonly understood Litt. Sect. 719. Land is given to a man and the heirs males of his body the Remainder to the heirs females of his body and the Donee in tayl makes a Feoffment in Fee with warranty and hath Issue a Son and a Daughter and dieth this warranty is but a lineal warranty to the Son to demand by a Writ of Formedon in the Descender and also it is but lineal to the Daughter to demand the same Land by a Writ of Formedon in the Remainder unless the Brother dieth without Issue male because she claimeth as Heir female of the body of her Father engendred But if her Brother release to the Discontinuee with warranty and after dye without Issue this is a collateral warranty to the daughter because she cannot conveigh the right which she hath to the Remainder by any means of descent by her brother 1. Here the warranty of the Father Donee in tayl is but lineal to the Daughter in Remainder in tayl But she claims saith the Book her Remainder as heir female of the body of the Donee in tayl which differs the Case from other persons in Remainder of an Estate tayl But of this more hereafter 2. And by the way in this Case Sir Edward Coke though he hath commented upon it hath committed an over-sight of some moment by using a Copy that wanted a critical emendation For where it is said That the warranty of the Father is but lineal to the Daughter to demand the Land by a Formedon in the Remainder unless the Brother dye without Issue-male because she claims as Heir female of the body of her Father By which reading and context the sense must be That if the Son dye without Issue male of his body then the warranty of the Father is not lineal to the Daughter cujus contrarium est verum for she can claim her Remainder as heir female of the body of her Father and thereby make the Fathers warranty lineal to her but only because her Brother died without Issue male That which deceived Sir Edward Coke to admit this Case as he hath printed it was a deprav'd French Copy thus Si non frere devyast sans Issue male which truly read should be Si son frere devyast and the Translation should be Not unless the Brother dye without Issue male but If her Brother dye without Issue male Another reason is that his French Copy was deprav'd Because the French of it is Si non frere devyast sans Issue male which is no Language for that rendred in English is Vnless Brother dye For it cannot be rendred as he hath done it unless the Brother dye without the French had been Si non le frere devyast and not Si non frere devyast Sir Edward Coke's first Edition of his Littleton and all the following Editions are alike false in this Section I have an Edition of Littleton in 1604. so deprav'd which was long before Sir Edward Coke publisht his but I have a right Edition in 1581. which it seems Sir Edward Coke saw not where the Reading is right Si son frere devyast sans Issue male Therefore you may mend all your Littletons if you please and in perusing the Case you will find the grossness of the false Copies more clearly than you can by this my Discourse of it And after all I much doubt whether this Case as Littleton is commonly understood that is That this lineal warranty doth not bind the Daughter without Assets descending be Law my Reason is for that no Issue in tayl is defended from the warranty of the Donee or Tenant in tayl but such as are inheritable to the Estates intended within that Statute and no Estates are so intended but such as had been Fee-simples Conditional at the Common Law And no Estate in Remainder of an Estate tayl that is of a Fee Conditional could be at Common Law All Issues in tayl within that Statute are to claim by the Writ there purposely formed for them which is a Formedon in the Descender not in Remainder 3. A third thing to be cleared is That the Statute de Donis did not intend to preserve the Estate tayl for the Issue or the Reversion for the Donor absolutely against all warranties that might barr them but only against the Alienation with or without warranty of the Donee and Tenant in tayl only for if it had intended otherwise it had restrain'd all Collateral warranties of any other Ancestor from binding the Issue in tayl which it neither did nor intended though well it might such warranters having no title 4. The Statute de Donis did not intend to restrain the Alienation of any Estates but Estates of Inheritance upon Condition expressed or implyed such as were Fee-simples Conditional at Common Law And therefore if Tenant for life aliened with warranty which descended upon the Reversioner such Alienation or Warranty were not restrained by this Statute but left at Common Law 1. Because the Estate aliened was not of Inheritance upon Condition within that Statute 2. He in the Reversion had his remedy by entring for the forfeiture upon the Alienation if he pleas'd which the Donors of Fee-simples Conditional could not do These things cleared I think it will be most manifest by the Statute de Donis and all ancient Authority That the warranty of Tenant in tayl though it be a Collateral warranty will not barr the Donor or his Heir of the Reversion After the Inconvenience before recited That the Donees disinherited their Issue against the form of the Gift then follows Et praeterea cum deficienti exitu de hujusmodi Feoffatis Tenementum sic datum ad donatorem vel ad ejus haeredes reverti debuit per formam in Charta de dono hujusmodi expressam licet exitus si quis fuerit obiisset per factum tamen Feoffamentum eorum quibus Tenementum sic datum fuit sub conditione exclusi fuerunt hucúsque de Reversione eorundem Tenementorum quod manifeste fuit contra formam doni Hitherto the Inconveniences and Mischiefs which followed the Issue of the Donees and to the Donor when they fail'd by the Donees power of Alienation are only recited in the Statute without a word of restraint or remedy The follows the remedy and restraint in these words only and no other Propter quod Dominus Rex perpendens quod necessarium utile est in praedictis casibus which
108 Stagnum ibid. Appertaining 108 109 Reputation 109 Without any lett 121 Quiete pacifice ibid. Lawfully enjoy 124 Dedi Concessi 126 Wreck 168 Derelict ibid. Imported or brought 171 172 Per Nomen 174 175 Claim 188 193 Una cum 197 Nature what it is 221 224 Unnatural 221 222 224 Uncle 241 Communia 255 Remainder 269 in loco 279 Naturalization 280 Antenati Postnati 273 Neer of kin 306 307 308 309 310 Malum prohibitum malum in se 332 333 334 c. 358 359 Dispensation 333 336 349 Exemption 349 Commot 405 Exposition of Sentences 1. Words which are insensible ought to be rejected so also words of known signification so placed in the Deed that they make it repugnant and sensless are to be rejected equally with words of no signification 176 2. In things necessary there are no degrees of more or less necessary 344 3. What appears not to be must be taken in Law to be as if it were not 169 4. Lands usually letten shall be intended Lands twice letten 33 5. Lands which have at any time before been usually letten how expounded 34 6. How long time will gain a Reputation to pass a thing as appertaining 109 Extinguishment 1. Extinguishment of a Rent is when it is absolutely conveyed to him who hath the Land out of which it issues or the Land is conveyed to him to whom the Rent is granted 199 2. A perpetual union of the Tenancy to the Rent or Rent to the Tenancy is an extinguishment of the Rent 39 3. Where Rent is arrear and afterwards it is granted over in Fee and an Attornment thereunto here the Grantor hath absolutely lost his arrears and cannot after distrain 40 Extent 1. An Extent is sueable into Wales but a Ca. Sa. or Fi. Fa. is not 397 Fee-simple 1. A Fee-simple determinable upon a Contingent is a Fee to all intents but not so durable as an absolute Fee-simple 273 2. A. had issue W. T. and R. and devised to T. and his heirs for ever and if T. died without issue living W. then W. should have the Land this is a good Fee in T. And W. hath a Fee in possibility by Executory Devise if T. dyed without issue before him 272 Fieri Facias See Execution  Fine Fines 1. A Fine levied without consideration or use expressed is to the use of the Conizor 43 2. The Seisin of the Conizee of a Fine is but a meer fiction and an invented form of Conveyance only 41 42 3. The wife in that case shall not be endowed neither shall it descend to his Heir 41 Formedon 1. The Statute de Donis formed a Writ of Formedon in the Descender for the new Estate Tayl created by that Statute but makes no mention of a Formedon in the Reverter as already known in the Chancery 367 Franchise 1. Franchises Inferiour and Counties Palatine are derived out of the Counties by the Kings Grants where the Kings Writ did run 418 Fraud 1. Wheresoever an Action of Debt upon Bond or Contract is brought against an Executor he may confess the Action if there be no fraud in the case although he have notice of a former Suit depending 95 Gardian in Soccage See Title Statutes 26. 1. WHO is Gardian in Soccage at the Common Law 178 244 2. What a Gardian may do in his own name 182 3. Who were Legitimi tutores or Gardians by the Civil Law 244 4. The Exposition of the Statute made 12 Car. 2. 183 184 5. The Gardian by the Statute of 12 Car. 2. doth not derive his authority from the Father but from the Law 186 6. The Lands follow the Gardianship and not the Gardianship the Lands 178 7. The Gardianship now by the Statute may be till One and twenty years 179 8. Such a special Gardian cannot transfer the custody of the Ward by Deed or Will to any other 179 181 9. The trust is only personal and not assignable neither shall it go to the Executors or Administrators 180 181 10. If the father appoint the custody until One and twenty and the Gardian dies it determines with the death of the Gardian and is a Condition in Law if he live so long 185 Grants Grantor Grantee 1. The Law doth not in the Conveyances of Estates admit Estates regularly to pass by implication But in Devises they are allowed with due restrictions 261 262 c. 2. A thing so granted as none can take by the Grant is a void Grant 199 3. In Grants words which are insensible ought to be rejected so likewise words of known signification when they are so placed in the Deed that they are Repugnant are to be rejected equally with words of no known signification 176 4. The meaning of the word appertaining in a Grant and how far it will extend and what it will pass 108 109 5. Land in possession cannot pass by the Grant of a Reversion but by the grant of Land a Reversion will pass 83 6. By the Grant of Stagnum Gurgitem aquarum the Soyl of the Pond passes 107 108 109 7. Where by the Deuise of the Farm of H. the Mannor of H. will well pass 71 8. To a Grant of a Rent by the Common Law an Attornment is requisite 39 9. A Lease is made habendum for 40 years after the expiration of a Lease made to another person whereas in truth there is no such Lease this Lease for 40 years shall commence presently 73 74 80 81 83 84 10. To give or grant that to a man which he had before is no gift at all 42 Grants by the King See Non Obstante Pardon Prerogative 1. Where the Kings Grant is void although there be a saving in an Act of Parliament of all the Right of such Grantee yet that shall not aid it 332 2. If a Patent is not void in its creation it remains good after the death of the King that granted it 332 Habendum 1. A Lease is made habendum for Forty years after the expiration of a Lease made to another person whereas in truth there is no such Lease this Lease for Forty years shall commence presently 73 74 80 81 2. A Rent is granted habendum for Seven years after the death of the Grantor Remainder in Fee 46 Habeas Corpus 1. The Writ of Habeas Corpus is now the most usual Remedy by which a man is restored again to his liberty if against Law he hath been deprived of it 136 2. The Cause of the imprisonment ought as specifically and certainly appear to the Judges upon the Return as it did appear to the Court or person authorized to commit 137 138 139 140 3. A prisoner committed per mandatum of the Lord Chancellor by vertue of a Contempt in Chancery was presently bailed because the Return was generally for Contempts to the Court but no particular Contempt exprest 139 140 4. The Court of Common Pleas or Exchequer upon Habeas Corpus may discharge Prisoners imprisoned by other