is not sufficient by the Rule of the Act of 25. unless confirmed by the King It was otherwise in the Popes case before the Act. There are many Presidents in Mr. Noy's Book where in like Obj. 2 case the King after the death of a Bishop holding in Commendam after his translation to another See and after his resignation hath presented All those Presidents are since the Twentieth of the Queen which Answ 1 cannot alter the Law 2. Who knows in the cases of death whether those Presentations were not by consent of the Patrons and doubtless there are Presidents wherein the Patrons did present else this Question had been earlier But Judicandum est legibus non exemplis Vpon Translation of a Bishop holding a Commendam in the Answ 2 Retinere as long as he continued Bishop there the King ought to present for the Dispensation is determined upon his remove and then is as if it had not been and a Dispensation gives no property to the Living nor takes away any But where property is given to the Living as by Presentation Institution and Induction or by Grant as in Appropriations Hob. Colts and Glovers Case and sometimes otherwise by the King such presenting or granting for a year or six is to grant it during life As an Atturnment cannot be for a time nor a Confirmation nor a Denization or Naturalization and the like but such Acts are perfect Manwarings Case 21 Jac. Crook f. 691. as they may be notwithstanding Restriction to time as is agreed well in Manwaring's Case I shall say nothing of the case of Resignation as not being in the present Question Judgment was given by the Opinion of the whole Court That the Avoidance was by Death not by Cession Hill 19 20 Car. II. C. B. Rot. 1785. Baruck Tustian Tristram Plaintiff Anne Roper Vicountess Baltinglass Vidua Defendant in a Plea of Trespass and Ejectment THe Plaintiff declares That the Defendant vi Armis entred into 20 Messuages 1000 Acres of Land 200 Acres of Meadow and 500 Acres of Pasture cum pertinentiis in Thornbury Shalston Evershaw Oldwick Westbury and Looffield and into the Rectory of Thornbury which Thomas Gower Kt. and Baronet and George Hilliard to the said Baruck demis'd the First of Octob. 19 Car. 2. Habendum from the Feast of St. Michael the Arch-angel last past for the term of Five years next ensuing into which he the said Baruck the same day entred and was ousted and ejected by the Defendant ad damnum 40 l. To this the Defendant pleads Not Guilty And the Jury have found specially That the Defendant is not guilty in all those Tenements besides 5 Messuages 400 Acres of Land 50 Acres of Meadow 100 Acres of Pasture cum pertinentiis in Thornbury Shalston Evershaw Oldwick and Westbury and in the Rectory of Thornbury and besides in one Messuage 100 Acres of Land 50 Acres of Meadow and 100 Acres of Pasture cum pertinentiis in Looffield And as to the Trespass and Ejectment aforesaid in the said five Messuages c. and in the Rectory of Thornbury the Iury say upon their Oath that before the said Trespass and Ejectment suppos'd 22 Junii 12 Jac. Sir Arthur Throgmorton Kt. was seis'd in Fee of the aforesaid Rectory and Tenements last mentioned and of the said Premisses in Looffield and so seis'd A certain Indenture Tripartite was made 22 Junii 12 Jac. between him the said Sir Arthur of the first part Edward Lord Wootton Augustine Nicholls Kt. Francis Harvey Esq and Rowly Ward Esq of the second part and Sir Peter Temple and Anne Throgmorton Daughter of the said Sir Arthur of the third part To this effect That the said Sir Arthur Throgmorton did covenant and promise with the said Lord Wootton and Sir Augustine Nicholls in consideration of Marriage to be had between the said Sir Peter Temple and the said Anne and other the considerations mentioned in the said Indenture by Fine or Fines before the Feast of St. Michael the Arch-angel next ensuing or other good Conveyance to be levied by him and the said Dame Anne his wife to the said Lord Wootton c. The scite and precinct of the Priory of Looffield the Rectory of Thornbury and divers Mannors Lands and Tenements in the said Indenture mentioned several yearly Rents therein mentioned and all other his Lands in the Counties of Northampton Buckingham and Oxford at any time belonging to the said Priory to convey and assure To the use of himself for life without Impeachment of Waste Then to the use of Dame Anne his Wife Then to the use of the said Sir Peter Temple and the said Anne his Wife during their natural lives and the longer Liver of them and after both their Deceases To the use of the first Son of the Body of Anne by the said Sir Peter begotten and of the Heirs Males of the Body of the said first Son so to the sixth Son Then to the use of all other Sons in succession in like manner of the Body of Anne begotten by the said Sir Peter And for default of such Heirs To the use of all the Issues Female of the Body of the said Anne by the said Sir Peter begotten and the Heirs of the Bodies of the said Issues Female For default thereof To the first Son of the said Anne by any other Husband and his Heirs Males and so to the tenth In like manner to the Issues Female of the Body of Anne with divers Remainders over A Proviso That it be lawful for Sir Arthur at all times during his life to lett set and demise all or any the said Premisses aforesaid which at any time heretofore have been usually letten or demised to any person or persons for and during the term of One and twenty years or under in possession and not in Reversion or for or during any other number of years determinable upon one two or three Lives in Possession and not in Reversion reserving the Rents therefore now yielded or paid or more to be yearly due and payable during such Lease and Leases unto such person and persons unto whom the said Premises so to be demised shall come and be by virtue of these Presents if no such demise had been made so long as the same Lessees their Executors and Assigns shall duly pay the Rents and perform their Conditions according to the true meaning of their Indentures of Lease and commit no waste of and in the things to them demised The like Proviso verbatim for Sir Peter Temple and Anne his Wife to make like Leases during their Lives and the Life of the longer liver of them after the death of Sir Arthur and Dame Anne his Wife That a Fine was accordingly levied c. to the uses aforesaid They find that all the Messuages Lands Tenements and Rectory in the Declaration mentioned are compris'd in the said Indenture Tripartite They find the death of Sir Arthur Throgmorton and Anne his Wife 2. Septemb.
Arrears in strictness of Law when the Fine is levied are not due at all but remitted and so no absurdity to have no remedy for a thing not due 1. By this reason a Law should be equally good that provides no remedy for performance of Contracts as that which doth because all Contracts for performance of which the Law gives no remedy shall in Iudgment of Law be dispens'd with releas'd discharg'd 2. By this reason a Rent-seck before seisin had of it shall be no duty because the Law gives no Remedy before seisin And consequently such Rent or such Arrears as in the present Case being paid by the Tenant may be recover'd again as the proper mony of the Tenant deliver'd to the Grantee of the Rent without any consideration upon an indebitatus Assumpsit the Law creating a promise So might a Debt paid after six years elaps'd for which by the Statute of Limitations there was no remedy yet that doth not cease to be a Debt as if it had been released By like reason if a man hath by accident had his Bonds burn'd or destroy'd whereby he had no remedy to recover the Debt by Law it should cease to be a Debt at all 32 H. 8. c. 37. To this the words of the Statute of 32 H. 8. c. 37. may be added which gives remedy for recovery of such Debts by Executors as were due to the Testators and for which there was no remedy before viz. That the Tenants did retain in their hands such Arrearages of Rents whereby the Executors could not therewith pay the Debts and perform the will of the Testator c. and surely no Arrearages could be of Rent if they were remitted in Law nor was it fit the Executors should pay the Debts or perform the Testators Will with that which was no part of the Testators Estate either in possession or as a credit If a common Recovery had been to uses of Lordships and Mannors before the Statute of 27. the Recoverors had no remedy to make the Tenants attorn for a quid Juris clamat would not lye upon a Recovery before the Statute of 7 H. 8. 7 H. 8. c. 4. c. 4. which did give remedy and which saith That such refusal of Attornment was to the great offence of their Conscience refusing and not only to the disinheritance of the Recoverors but often to the breaking of the last Wills of the Recoverees and also to the disinheritance of Husbands Wives and others to whose use the Recovery was had By which it is plain that duties for which there is no remedy often in Law are not therefore dispenced with and discharged by the party as is superficially said in Ognell's Case That the Conizee of a Rent granted by Fine to uses cannot have any actual seisin or be in possession of such Rent since the Statute of 27 H. 8. cap. 10. Before the Statute of 27 H. 8 If a Feoffment had been to uses and no Livery given or given by one Attorney when it ought to have been by two the uses in such Deed of Feoffment could never rise so if a Reversion had been granted to uses and no Attornment to the Grantee no use could rise because there was no sufficient Estate in possession And when the Statute of Vses came it could have no operation when the Estates in possession were not sufficient So if an Estate for life had been granted to the use of a man and his Heirs an Estate in Fee could not rise out of it by the Statute of 27 H. 8. c. 10. And if before the Statute a Reversion had been granted by Fine to Vses and no quid Juris clamat brought though the Land pass'd by the Fine yet the Tenant could not be distrain'd nor a Writ of Waste brought against him until he attorn'd and when the Statute came to transferr the use into the possession it could be but into such a possession as the Conizee had by the Fine without power to distrain or bring Waste for the words of the Statute are That the Estate Title Right and Possession that was in such person or persons that were or hereafter shall be seis'd of any Lands or Hereditaments to the use confidence or trust of any person or persons be from henceforth adjudged to be in him or them that have or hereafter shall have such use confidence or trust c. And therefore if before the Statute of 27. a Fine had been levied of a Rent-charge to uses as this Case is if before Attornment to or seisin had by the Conizee the Statute had come and brought the possession of the Rent to the use the Cestuy que use could have had the Rent but as a Rent-seck for which he could not distrain for want of Attornment nor have an Assise for want of seisin for the Conizee had no other possession of the Rent but after Attornment and seisin to or by Cestuy que use his possession perhaps became perfected But since the Statute if a Fine be levied of a Reversion of Lands to uses or of a Rent because the use and possession by the Statute come instantly together and the Conizee of the Fine hath no time possible to bring either a quid Juris clamat or a quem redditum reddit Sir Moyl Finch's Case Coke 6. f. 68. a for or to receive an Attornment to perfect his possession It was resolv'd in Sir Moyl Finch's Case that the Cestuy use should notwithstanding distrain and have the same advantage as if the Conizees possession had been perfected by Attornment and seisin The intent of the Statute of 27. which was to bring together the possession and the use when the use was to one or more persons and the possession in one or more other separate persons was soon after the Statute wholly declined upon what good construction or inference I know not For now the use by the name of trust which were one and the same before the Statute remains separately in some persons and the possession separately in others as it did before the Statute and are not brought together but by Decree in Chancery or the voluntary Conveyance of the possessor of the Land to Cestuy que trust So as now the principal use of the Statute of 27. especially upon Fines levied to uses is not to bring together a possession and use which at no time were separate the one from the other but to introduce a general form of Conveyance by which the Conizors of the Fine who are as Donors in the Case may execute their intents and purposes at pleasure either by transferring their Estates to Strangers by enlarging diminishing or altering them to and among themselves at their pleasure without observing that rigour and strictness of Law for the possession of the Conizee as was requisite before the Statute Which I have sufficiently evidenc'd by shewing that the Attornment of the Lessee to the Conizee or Reversioner or of the Tenant to him as
than a local Subject ibid. 286 5. He must be otherwise a Subject than any Grant or Letters Patents can make him ibid. 6. The Natives of Jersey Garnsey Ireland and the English Plantations c. are not Aliens 268 in loco 278 279 7. Those which are born in the Kings Forreign Plantations are born his Natural Subjects and shall inherit in England 279 8. A Natural Subject is correlative to a Natural Prince and a man cannot have two natural Soveraigns no more than two Fathers or two Mothers 280 273 in loco 283 9. The several ways by which men born out of England may inherit in England 281 10. An Antenatus in Scotland shall not inherit without an Act of Parliament because he is an Alien 274 in loco 284 287 11. Who are the Antenati Postnati and the difference between them 273 in loco 283 12. An Act of Parliament in Ireland shall never Naturalize an Alien to England to make him inheritable there 274 in loco 284 13. No Tenure by Homage c. in any of the Kings Dominions acquired by Conquest or by Grant or Letters Patents can make a man inheritable in England 279 14. No Laws made in any Dominion acquired by Conquest or new Plantation by the Kings Governor or people there by virtue of the Kings Letters Patents can make an Alien inheritable in England 279 15. One Naturalized in Scotland since the Union cannot inherit in England 268 in loco 278 279 280 285 16. A man born a Subject to one that is King of another Country and who afterwards comes to be King of England is an Alien and shall not inherit in England ibid. 285 286 17. An act of Law making a man as if he had been born a Subject shall not work the same effect as his being born a Subject which is an effect of Law 280 18. An Alien hath issue a Son and afterwards is Denizen'd and he afterwards hath another Son here the youngest Son shall inherit 285 Allegiance 1. All Allegiance and Subjection are acts and obligations of Law the subjection begins with the birth of the Subject at which time the Kings protection of him likewise begins 279 Appendant 1. Whatsoever is appendant to the Land goes to the Occupier thereof naturally 190 2. An Advowson may be appendant to a Mannor 12 Apprentice 1. The Law permits not persons who have served Seven years to have a way of livelyhood to be hindred from the exercise of their Trades in any Town or part of the Kingdom 356 Arch-bishop See Ordinary Dispensation 1. The Arch-bishop may dispense for a Plurality 20 Assets 1. The manner of pleading Assets ultra 104 Assignee and Assignment 1. Offices or acts of personal Trust cannot be assigned for that Trust which any man may have is not personal 180 181 2. An Occupant becomes an Assignee in Law to the first Lessee 204 3. If a man Covenants against himself his Executors Administrators and Assigns yet if his Assigns do a tortious act it is no breach of the Covenant because he may have remedy by Action for the tort 118 to 128 Assise 1. An Assise will not lye for a Rent issuing out of Tythes barely 204 Attaint See Title Statutes 3 11. 1. An Attaint lies only in Civil not Criminal Causes 145 146 2. Jurors are not finable for a false Verdict an Attaint only lies against them 145 Attorney 1. An Attorney cannot bring Debt for Soliciting but Case only 99 2. The Defendant cannot wage his Law for Attorneys Fees ibid. Attornment 1. By the Common Law an Attornment was requisite to entitle the Lord the Reversioner the Grantee of a Remainder or of a Rent by Deed or Fine to distrain for Rent in arrear 39 2. By a Grant and Attornment the Grantee becomes actually seised of the Rent 40 3. Attornment and power to distrain follows the possession and not the use 43 4. An Attornment cannot be for a time 27 5. An Attornment of the Tenant doth not disclaim but affirm his possession For it is the act of the Tenant by reason of his being in possession 193 6. A mans Estate in a Rent-charge may be enlarged diminished or altered and no new attornment or privity requisite to such alteration 44 7. Attornment is requisite to the Grant of an Estate for life but to a Confirmation to enlarge an Estate it is not 44 45 46 8. A Rent-charge is granted to Commence Seven years after the death of the Grantor Remainder in Fee Attornment must be made in the life time of the Grantor 46 9. If a Fine is levied of the Reversion of Land or of a Rent to uses the Cestuy que use may distrain without Attornment 50 51 10. Where a Rent Reversion or Remainder is sold by Bargain and Sale the Bargainee may distrain without Attornment 51 11. Where a man is seised of a Rent-charge and grants it over to which the Tenant attorns and he afterwards retakes that Estate here must be a new Attornment for the former privity is wholly destroyed 44 12. Where an Attornment shall be good to a contingent use 52 Bargain and Sale See Intollment 1. WHere a Rent Reversion or Remainder is sold by Bargain and Sale the Bargainee may distrain for the Rent without Attornment 51 Baron and Feme 1. The man after the marriage hath the deduction of the woman ad Domum Thalamum and all the civil power over her and not she over him 306 2. The Interdicts of carnal knowledg in the Levitical Law were directed to the men not to the women who are interdicted but by a consequent for the woman being interdicted to the man the man must also be interdicted to the woman for a man cannot marry a woman and she not marry him 305 Bishop See Ordinary Archbishop 1. What Bishops were originally 22 2. A Parson is chosen Bishop his Benefices are all void and the King shall present 19 20 3. It is not at all inconsistent for a Bishop to be an Incumbent 22 4. A Bishop may be an Incumbent after Consecration 24 5. How many Benefices a Bishop may retain by a Dispensation 25 6. No Canon Ecclesiastical can be made and executed without the Kings Royal assent 329 7. Bishops in Wales were originally of the foundation of the Prince of Wales 411 Canons Ecclesiastical See Title Ecclesiastical Court 1. WHat Canons are good and binding and what not 327 328 Capias ad Satisfaciendum See Execution Certiorari 1. A Certior lies out of the Chancery to Ireland to certifie an Act of Parliament but it doth not lye to Scotland 287 2. A Certiorari doth not lye to Wales to certifie a Record to the Courts at Westminster to the intent that Execution may issue out here upon it 398 Certificate 1. There are many things whereof the Kings Courts sometimes ought to be certified which cannot be certified by Certiorari 288 Chancery 1. The Chancery may grant a Habeas Corpus and discharge a Prisoner thereupon as well
the Kings license must be without any limitation to him that hath it to exercise his Trade as before it was prohibited otherwise it is no license 346 17. Where the King may dispense generally he is not bound to it but may limit his Dispensation 346 18. Where the King can dispense with particular persons he is not confined to number or place but may license as many and in such places as he thinks fit 347 19. A Corporation is capable of a Dispensation 347 348 20. A Dispensation to a person to keep an Office which person is not capable of such Office is void 355 21. Where a license Ex speciali gratia is good to dispense with a penal Law without a Non obstante 356 Distress 1. A privity is necessary by the common Law between the Distrainer and Distrained 39 2. Attornment and power to Distrain follows the possession and not the Use 43 3. Where a Rent is well vested and there is an Attornment when ever the Rent is arrear a Distress is lawful unless the power is lost 39 4. Where Rent is arrear and afterwards the Rent is granted over in Fee and an Attornment thereunto here the Grantor hath lost his arrears and cannot Distrain 40 5. If a Fine is levied of the Reversion of Land or of Rent to Uses the Cestuy que use may Distrain without attornment 50 51 Dominion 1. Dominions belonging to the Crown of England cannot be separated from it but by Act of Parliament made in England 300 2. What are Dominions belonging to the Realm of England though not in the Territorial Dominions of England ibid. 3. By what Title the Crown of England held Gascoign Guyen and Calais 401 Dower 1. The wife of a Conizee of a Fine shall not be thereof endowed because it is but a fictitious Seisin 41 2. The wife is dowable of a Rent in Fee 40 Droit d'Advowson 1. Where the Writ lies and for whom 11 16 2. In a Droit d'Advowson the King may alledge Seisin without alledging any time 56 Ecclesiastical Court See Archbishop Prohibition THe Secular Judges are most conuzant of Acts of Parliament 213 2. The Temporal Judges have conuzance of what marriages are within the Levitical Degrees and what not and what are incestuous 207 3. The Clergy of this Kingdom shall not enact or execute any Canon Constitution or Ordinance Provincial unless they have the Kings license 329 Elegit 1. It lies upon a Recognizance taken in any of the Courts at Westminster or before any Judge out of Term 102 Error See Presidents Iudgment 1. An erroneous Judgment is a good Judgment to all intents whatsoever until reversed 94 2. If an inferiour or superiour Court gives an erroneous Judgment it is reversible by Writ of Error 139 3. Where the matter concerns the Jurisdiction of the Court a Writ of Error lies no where but in Parliament 396 4. A Writ of Error lies to reverse a Judgment in any Dominion belonging to England 290 402 5. A Writ of Error lay to reverse a Judgment in Calais 402 6. It lies to reverse a Judgment in Ireland 290 291 298 402 Escheat 1. Where the Heir at Law dies without heir the Land escheats and the Lord's Title will precede any future Devise 270 Esplees 1. The profits of a Mine is no Esplees for the Land but only the Esplees for the Mine it self 255 2. So likewise for a Wood the profits of it is no Esplees but only for the Land only upon which the Wood grows ibid. Estates See Grant 1. The Law doth not in Conveyances of Estates admit Estates to pass by Implication as being a way of passing Estates not agreeable to the plainness required by Law in the transferring of Estates 261 262 c. 2. But in Devises they are admitted with due restrictions 261 262 263 c. 3. What Executory Devises and contingent Remainders are good and what not 272 273 4. When a new Estate is granted the privity to the old Estate is destroyed 43 5. The Estate may be changed and yet the possession not changed but remain as formerly 42 6. An Estate in a Rent-charge may may be enlarged diminished or altered and no new Attornment or privity requisite 44 45 46 7. The Seisin of the Conizee of a Fine is but a meer fiction and an invented form of Conveyance only 41 8. His wife shall not be endowed neither shall his heir inherit 41 Estoppel or Conclusion 1. A Demise by Indenture of a Term habendum from the expiration of another term therein recited when really there is no such term in esse is no Estoppel to the Lessor or Lessee but the Lessee may presently enter and the Lessor grant the Reversion 82 Evidence 1. No evidence can be given to a Jury of what is Law 143 2. A witness may be admitted to prove the Contents of a Deed or Will 77 3. The Jury may go upon evidence from their own personal knowledge 147 Execution See Elegit 1. Lands Persons or Goods ought not to be lyable to Judgments in other manner than they were at the time of the Judgment given which was where the Court had Jurisdiction which gave the Judgment 398 2. What Execution shall be sued out upon a Recognizance acknowledged in any of the Courts at Westminster or before a Judge 103 3. What Execution shall be sued out upon a Statute 102 4. Upon a Recovery in England an Execution doth not lye into Wales 397 398 5. Perhaps by special Writs to the chief Officer of the King Execution may be made of Judgments given at Westminster in any of his Dominions 420 Executor See Title Statute 10 20. 1. How they are to administer the Testators estate 96 2. An Executor may refuse but cannot assign over his Executorship 182 3. It is no Devastavit in an Executor to satisfie a Judgment obtained upon a simple Covenant before a debt due by Obligation 94 95 97 4. Where an Action of Debt upon Bond or Judgment is brought against him he may confess the Action if there be no fraud in the Case although he hath notice of a former Suit 95 100 5. The Executor may plead an erroneous Judgment in Barr 94 97 6. A Recognizance in Chancery must be paid before Debts upon simple Contracts and Debts by Bond 103 7. It is a Devastavit in an Executor to pay voluntarily a Debt by simple Contract before a Debt by Bond whereof he had notice and not otherwise 94 95 8. It is a Devastavit to satisfie a later Judgment if there are not Assets left to satisfie a former Judgment 95 9. An Action will not lye against Executors upon a Tally because it is no good Specialty 100 10. The pleading of Plene administravit praeter plene administravit ultra and in what Cases it may be pleaded and how 104 Exposition of Words Quam diu 32 Dum ibid. Dummodo ibid. Usually letten 33 34 At any time 34 Or more 35 More or less ibid. Gurges
recover any thing from me it is not sufficient for you to destroy my Title but you must prove your own to be better than mine 58 60 2. In a Quare Impedit if the Defendant will leave the general Issue and controvert the Plaintiffs Title he must do it by his own Title 58 3. The Plaintiff must recover by his own strength and not by the Defendants weakness 8 58 4. Priority of possession is a good Title against him who hath no Title at all 299 5. No man can Traverse an Office except he can make himself a good Title 64 Trade 1. The Law permits not persons who have served Seven years to have a way of livelyhood to be hindred in the Exercise of their Trades in any Town or part of the Kingdom 356 Traverse 1. No person shall Traverse an Office unless he can make himself a good Title 64 2. When in a Quare Impedit the Defendant Traverseth any part of the Plaintiffs Count it ought to be such part as is inconsistent with his Title and being found against the Plaintiff destroys his Title 8 9 10 3. Where the presentation and not the seisin of the Advowson is to be traversed 9 10 11 12 4. Where the Presentation and not the Appendancy is traversable 10 11 15 5. Where the Seisin in Gross or Appendancy is Traversable 12 13 6. The Appendancy is well Traversed when it is all the Plaintiffs Title to present and inconsistent with the Defendants 13 15 7. Where either the Appendancy or Presentation may be Traversed 15 8. Where neither the Seisin in Gross nor Appendancy shall be Traversed but only the Vacancy 16 9. Where the King may take a Traverse upon a Traverse which regularly a common person cannot do but where the first Traverse tendred by the Defendant is not material to the Action brought 62 10. Where the King may refuse to maintain his own Title which is Traversed by the Defendant and take a Traverse to the Title made by the Defendant 62 64 Trespass 1. By the ancient Law it was adjudged in Parliament no man ought to be condemned in a Trespass de praecepto or auxilio if no man were convicted of the Fact done 115 116 2. Action of Trespass against Officers within the Statute as Constables c. and their Assistants must be laid in the proper County 111 112 113 114 115 116 117 Tryal 1. Actions upon Bond or Deed made in Wales Ireland Normandy c. where to be brought 413 2. How Dominions Leagues and Truces are to be tryed 288 3. An Issue arising out of the Jurisdiction of the Courts of England although it arise within the Dominions of England out of the Realm shall not be tryed in England 404 4. If a Signiory in Wales that is not part of the Principality be to be tryed it must be tryed by the Common Law but if Land within the Signiory is to be tryed it must be tryed within the Mannor there 407 5. A person naturalized in Ireland commits Treason beyond the Seas where no local Allegiance is due to the King how and where he shall be tryed 291 292 Tythes 1. Though Tythes pass by Deed only yet where a Rectory and the Tythes de D. are granted if there is not Livery neither the Rectory nor Tythes will pass because they were intended to be granted together 197 2. There can be no primary and immediate Occupancy of Tythes 191 194 3. A Rent cannot be reserved out of a bare Tythe only to make the Lease good within the 13 Eliz. cap. 10. because neither a Distress nor Assise can be brought thereof 204 Verdict See Evidence Issue 1. THE Jury may find a Deed or a Will the Contents thereof being proved by witnesses 77 2. But if they will collect the Contents of the Deed and by the same Verdict find the Deed in haec Verba the Court is not to adjudge upon their Collection but the Deed it self ibid. 3. A Deed or Will must not be found in part because the Court cannot but adjudge upon the whole matter and not upon part only 84 4. The legal Verdict of the Jury is finding for the Plaintiff or the Defendant and what they answer if asked concerning some particular Fact is no part of their Verdict 150 5. In a general Verdict finding the point in Issue by way of Argument although never so concluding is not good 75 187 6. In a Special Verdict the Case in Fact must be found clear to a common intent without Equivocation 75 78 87 7. The Issue was Whether a Copyhold was grantable to three for the lives of two The Jury find that it is grantable for Three Lives this was argumentative only and therefore a void Verdict 87 8. Where a man by Lease reciting a former Lease to have been made doth Demise for Forty years after the Expiration of that Lease paying the same Rent as is mentioned in the recited Lease and only the Lease for Forty years and not the recited Lease is found in the Verdict This Verdict is a void Verdict and findeth neither the one or other Lease 74 75 76 81 82 Vintners See Title Statute 21. 1. The King could not better answer the end of the Act of 7 E. 6. than to restrain the Sellers of Wine to Freemen of London 2. To the Corporation of Vintners men bred up in that Trade and serving Apprenticeships to it 355 3. And that such should be licensed without restraint is most agreeable to the Law of the Kingdom which permits not persons who have served Seven years to have a way of livelyhood to be hindred in the Exercise of their Trades 356 Voucher Vouchee 1. No man shall Vouch who is not privy to the Estate that is who hath not the same Estate as well as the Land to which the warranty was annexed 384 2. When a man will be warranted by Voucher he must make it appear how the warranty extends to him 385 Vse See Title Statutes 19. 1. The Statute brings the new Uses raised out of a feigned possession and for no time in the Conizee to the real possession and for all times in the Conizors which operates according to their Intents to change their Estates but not possessions 42 2. By the Statue of 27 H. 8. the Use and Possession come instantly together 50 3. The principal use of the Statute of Uses is to introduce a general form of Conveyance by which the Conizors of the Fine may execute their purposes at pleasure 50 4. An old Use may be revoked and a new Use raised at the same time 42 5. Uses declared by Indenture made a year after the Recovery 51 6. If a Fine be levied of the Reversion of Land or of a Rent to Uses the Cestuy que use may Distrain without Attornment 50 51 7. A Rent may arise out of the Estate of Cestuy que use upon a Recovery which was to arise out of the Recoverers Estate 52 Vsurpation 1. A void
Avowry is in liew of an Action and thereto privity is requisite for the same cause he cannot have an Action of Waste nor many other Actions there mentioned and the Authorities cited and so is Littleton himself expresly Litt. Sect. 580. Section 580. Where a man by grant to himself or by descent from his Ancestor hath a Rent-charge and might once lawfully distrain and Avow for such Rent if Arrear by due Attornment made to him or his Ancestor he may still do so whenever the Rent is behind unless by Law that power be some way lost 1. That power may be lost by extinguishment of the Rent by a perpetual union of the tenancy to the rent or rent to the tenancy or in other manner the Grantee having no Heir 2. It may be lost for a time by Suspension as by such union for a time and after restored again 3. It may be lost by a Grant of the Rent upon Condition 7 H. 6.3 Br. Extinguishment p. 17. and upon performance or breach of the Condition restored again but the power of distraining is not in this Case lost by any of these ways 4. It may be principally lost by a sufficient granting over and transferring the Rent to another which way comes nearest to the Case in question And therefore I shall agree the Case so much insisted on which is said to be agreed per Curiam Andrew Ognell's Case 4. Rep. f. 49. in Andrew Ognell's Case in the fourth Rep. That if a man be seized of a Rent-service or Rent-charge in Fee and grant it over by his Deed to another and his Heirs and the Tenant Attorn such Grantor is without remedy for the Rent arrear before his Grant for distrain he cannot and other remedy he hath not because all privity between him and the Tenant is destroyed by the Attornment to the Grantee and he hath no more right than any Stranger to come upon the Land after such transferring over of the Rent I shall likewise agree another Case That if such Grantee should regrant the same Rent back to the Grantor either in fee in tail or for life and the Tenant Attorn as he must to this regrant yet the first Grantor shall never be enabled to distrain for Arrears due to him before he granted over the Rent for now the privity between him and the Tenant begins but from the Attornment to the regrant the former being absolutely destroyed and the Tenant no more distrainable for the ancient Arrears than he was upon the creation of the Rent for Arrears incurred before till first attorn'd If the Case in question prove to be the same in effect with either of these Cases then the reason of Law for these Cases must sway and determine the Case in question And I conceive that there is no likeness or parity between the Case in question and either of those Cases either for the fact of the Cases or the reason of Law I shall therefore begin with comparing this Case with the first of those Cases 1. In the first of those Cases he that is seis'd of the Rent-charge doth intend to transferr his Estate in the Rent to the Grantee and it is accordingly actually transferr'd by the Tenants Attornment to the Grant 2. The Grantee by his Grant and Attornment to it becomes actually seis'd of the Rent and may enjoy the benefit of it by perception of the Rent 3. His Wife becomes dowable of it 4. It is subject to Statutes Recognizances and Debts enter'd into by the Grantee or due from him to the King 5. It is possible to descend to his Heir 6. It may be Arrear and he hath a possibility to distrain and avow for it 1. But in the Case in question the Conizors of the Fine did never intend to transfer their Estate in the Rent to the Conizee nor that any Attornment be made to him What a man intends to pass to another he intends to be without it himself at least for some time which is not in this Case 2. The Conizee never becomes actually seiz'd of the Rent and not only doth not but never can enjoy the perception of it for there is no moment of time wherein the Conizors themselves are not actually in seisin of it and consequently may distrain if it be in Arrear and the Conizee can never have actually seisin or possibility to have Attornment or distrain his seisin being but a meer fiction and an invented form of Conveyance only 3. The Conizee's Wife is never dowable of it 4. It is not subject to any Statutes Recognizances or Debts of the Conizee 5. It is never possible to descend to his Heir for it instantly vests in the Conizors 6. It can never be Arrear to the Conizee nor hath he ever a possibility to distrain for it To this purpose what is agreed in the Lord Cromwell's Case L. Cromwell's Case 2. Rep. f. 77. 2. Rep. is applicable Then it is to be consider'd what seisin Perkins had who was the Conizee of a Fine in that Case and he had but a Seisin for an instant and only to this purpose to make a Render for his Wife shall not be endowed nor the Land subject to his Statutes or Recognizances f. 77. Therefore that first Case cited out of the Report of Andrew Ognell's Case which I admit to be good Law hath no resemblance with the present Case in any circumstance or consequent but had the Fine been to a third persons use the consequents had been the same as in the Case cited out of Ognell's Case not as to the Conizee but as to that third person to whom the rent was intended To conclude then this first part 1. That whereof the Conizors were alwaies actually and separately seiz'd the same was never by them transferr'd to the seisin of another But of this Rent the Conizors were alwaies in actual seisin for there was no moment of time wherein they were not seis'd therefore this Rent was never transferr'd to the seisin of another nor could any other for any moment of time have a separated seisin thereof for what was mine at all times could be anothers at no time 2. It is an impossibility in Law that two men severally shall have several Rights and Fee-simples in possession in one and the same Land Dyer 28 H. 8. f. 12. a. p. 51. simul semel per Fitz-herbert in the Argument of Bokenhams Case and the same impossibility is so to have of a Rent Nor hath this relation to the learning of Instants in Digbie's Case Coke 1. Rep. and Fitz-williams in the sixth Report That an old Use may be revoked and a new rais'd in the same time and an old possession ended and a new begun this is usual in all transmutation of Estates and things also For in nature a new form introduc'd doth in the same moment destroy the old according to that Generatio unius est corruptio alterius but a separate possession can never be
Robert the son had Issue Margaret Isabel Jane Antenatas living the First of Octob. 14 Car. 1. and now have Issue at Kingston John naturalized 9. Maii 1 Jac. John the third son by the name of Sir John Ramsey was naturalized by Act of Parliament holden at Westminster May the Ninth 1. Jac. and after made Earl of Holdernes George Ramsey the fourth Son George naturalized 7 Jac. was naturalized in the fourth Session of Parliament held at Westminster begun by Prorogation 19 Febr. 17 Jac. and after had Issue John primogenitum filium Quodque idem Johannes had Issue John the now Defendant primogenitum suum filium but finds not where either of these were born nor the death of George Nicholas the second Son had Issue Patrick his only Son Nicholas had Issue Patrick a Native 15 Jac. born at Kingston after the Union 1 Maii 1618. about 15 Jac. John the third Son Earl of Holdernes seiz'd of the Mannors Rectory and Premisses in the Declaration mentioned with other the Mannors of Zouch and Taylboys John covenanted to levy a Fine de Premissis 1 Jul. 22 Jac. and divers other Lands in the County of Lincoln in Fee by Indenture Tripartite between him on the first part Sir William Cockayne and Martha his Daughter of the second part c. Dated the First of July 22 Jac. Covenanted to levy a Fine before the Feast of St. Andrews next ensuing to Sir William of all his said Lands To the use of himself for life then to the use of Martha his intended Wife for life with Remainder to the Heirs Males of his body begotten on her Remainder to such his Heirs Females Remainder to his right Heirs The Marriage was solemnized the Seven and twentieth of Sept. 22 Jac. John married 29 Sept. 22 Jac. He levied the Fine Octab. Michael 22 Jac. John died 1 Car. 1. Jan. 24. The Fine accordingly levied in the Common Pleas Octabis Michaelis 22 Jac. of all the Lands and Premisses among other in the Declaration mentioned The Earl so seiz'd as aforesaid with the Remainder over at Kingston aforesaid died the Four and twentieth of January 1 Car. 1. His Countess entred into the Premisses in the Declaration mentioned and receiv'd the Profits during her life After the Earls death a Commission issued Inquisition after his death capt 29 Febr. 7 Car. 1. and an Inquisition taken at Southwark in Surrey the Nine and twentieth of February 7 Car. 1. By this Inquisition it is found the Earl died seiz'd of the Mannor of Zouch and Taylboys and divers Land thereto belonging in Com. Lincoln and of the Mannor of Westdeerham and other Lands in Com. Norfolk and of the Rectory of Kingston and of the Advowson of the Vicaridge of Kingston in Com. Surrey but no other the Lands in the Declaration are found in that Office And then the Tenures of those Mannors are found and that the Earl died without Heir But it finds that the Earl so seiz'd levied a Fine of the Premisses to Sir William Cockayne per nomina Maneriorum de Zouches Taylboys Rectoriae de Kingston cum omnibus Decimis dictae Rectoriae pertinentibus and finds the uses ut supra and so finds his dying without Heir c. It finds the Fine levied in terminis Michaelis 22 Jac. but not in Octabis Michaelis as the Special Verdict finds but between the same persons The Irish Act to naturalize all Scots 4 Jul. 10 Car. 1. The general Act of Naturalizing the Scottish Antenati in the Kingdome of Ireland was made in the Parliament there begun at the Castle of Dublin the Fourth of July 10 Car. 1. Nicholas died 1 Sept. 10 Car. 1. Nicholas died the First of September 10 Car. 1. Leaving Issue Patrick Murrey's Pat. 25 Octob. 10 Car. 1. King Charles the First by his Letters Patents dated the Five and twentieth of October the Tenth of his Reign under the Great Seal granted to William Murrey his Heirs and Assigns in Fee-farm All the said Mannors Lands and Rectory mentioned in the Declaration with the Reversion depending upon any life lives or years Patrick conveys to the Earl of Elkin 16 Febr. 1651. Patrick and Elizabeth his wife by Indenture dated the Sixteenth of February 1651. Covenant with the Earl of Elkin and Sir Edward Sydenham in consideration of Eleven hundred pounds and bargained and sold the Premisses in the Declaration to them and their Heirs and covenanted at the Earls charge to levy a Fine with proclamation Patrick Uxor levy a Fine à die Paschae in fifteen days to the use of the Earl and his Heirs of the Premisses before the end of Easter Term next and accordingly did levy it with warranty against them and the Heirs of Patrick by force whereof and of the Statute of Uses the said Earl and Sydenham were seiz'd c. The Earl and Sydenham convey to the Countess Dowager 10 Mar. 1652. The Earl of Elkin and Sydenham by Indenture of Lease dated the Tenth of March 1652. and by Deed of Release and Confirmation conveys the Premisses to Amabel Dowager of Kent and the Lady Jane Hart viz. the Eleventh of March 1652. by way of Bargain and Sale to them and their Heirs who entred by the Lease and were in quiet possession at the time of the Release The Dowager conveys to Pullayne and Neale The Dowager and Lady Hart by like Conveyance of Lease and Release bargained and sold to Pullayne and Simon Neale dated the First and Second of November 1655. who entred and were in possession as aforesaid John Ramsey the now Defendant entred in 15 Car. 2. and kept possession Dat. 25 Sept. 1656. Pullayne and Neale convey to Talmuch and Weld by Bargain and Sale 20 Jan. 16 Car. 2. John Pullayne and Symon Neale by Deed of Bargain and Sale duly inrolled convey'd the Premisses to Lionel Talmuch and Humphrey _____ their Heirs and Assigns Lionel and Humphrey demis'd to Philip _____ the Plaintiff having entred and being in possession by Indenture dated the Twentieth of January 16 Car. 2. John then in possession and John re-entred upon the Plaintiff and Ejected him The Questions upon this Record will be three 1. Whether a Naturalization in Ireland will naturalize the person in England If it will not all other Questions are out of the Case 2. If it will then whether by that Act for naturalizing the Antenati of Scotland any his brothers had title to inherit the Earl of Holdernes in the lands in question By reason of the Clause in the Act of Naturalization That nothing therein contained should extend to avoid any Estate or Interest in any Lands or Hereditaments which have already been found and accrewed to his Majesty or to King James for want of naturalization of any such person and which shall and doth appear by Office already found and return'd and remaining of Record or by any other matter of Record An Office was found as appears
1 Car. 1. and that Sir Peter Temple entred and was seis'd for term of his life They find he had Issue of the Body of Anne his Wife Anne the now Defendant Daughter and Heir of the Bodies of the said Sir Peter and Anne his Wife and that Anne Wife of Sir Peter died 2. Sept. 3 Car. 1. 1. They find a Demise by Sir Peter Temple to Sir Thomas Gower and Hillyard of the Rectory of Thornbury 9. Maii 23 Car. 1. for 30 l. Rent 2. They find a Demise by him to them of a Messuage in Thornbury 9. March 23 Car. 1. of Woolheads Tenement for 16 l. 13 s. 4 d. Rent 3. They find a Demise to them 9. March 23 Car. 1. of Land in Thornbury held by Roger Rogers Rent 13 l. 6 s. 8 d. 4. They find a Demise 9. March 23 Car. 1. of Nelson's Tenement in Thornbury Rent 16 l. 13 s. 4 d. at Michaelmass and Lady-day 5. They find a Demise 13. March 23 Car. 1. of Lands in Shalston Eversham and Oldwick held formerly by William Hughes Rent 15 s. 4 d. These respective Leases were made for the term of 90 Years determinable upon the Lives of the Lady Baltinglass the Defendant Sir Richard Temple's and the Life of a younger Son of Sir Peter Temple as long as the Lessees should duly pay the Rents reserved and commit no waste according to the Limitation of the Proviso in 12 Jac. which is recited in the respective Leases 6. Then the Iury find quod predicti separales reditus super praedictis separalibus Indenturis Dimissionis reservat fuerint reservat reditus de super premissis praedictis 22. dii Junii Anno Jacobi Regis 12. supradict Et quod praedict separales reditus c. in forma praedict reservat ad Festum Sancti Michaelis Arch-angeli quod fuit 1653. debit non solut sive oblat suerint super idem Festum sed quod iidem reditus infra unum mensem prox post Festum praedictum praefat Annae Roper Defend solut fuerunt 7. They find a Demise to them of the Scite and Priory of Looffield 9. March 23 Car. 1. at the Rent of 100 l. payable equally on Lady-day and Michaelmass-day demised by Sir Arthur Throgmorton and Anne his Wife 20th of May 12 Eliz. 1570. to William Hewer for 21 years Rent 100 l. Lady-day and Michaelmass with some Exceptions for the like term of 90 years and upon like Limitations as in the former Leases The Iury find quod Tenementa praedicta cum pertinentiis in Looffield supranominat tempore dict Eliz. nuper Reginae Angl. fuerint dimissa ad redditum 100 l. pro termino 21. Annorum sed dimissio terminus 21 Annorum expirati fuerunt Et dicunt quod eisdem Juratoribus non constabat quod dicta Tenementa in Looffield praedict 22 die Junii 12 Jac. aut per spatium 20 Annorum tunc antea fuerint dimissa Et dicunt ulterius quod 50 l. pro dimidio unius Anni de praedictis Tenementis in Looffield ad Festum Sancti Michaelis Arch-angeli quod fuit Anno Dom. 1653. debit oblatae fuerint Et quod praedicta Anna Roper ante Festum Annunciationis prox sequent intravit They find that Gower and Hillyard claiming the said 5 Messuages 400 Acres of Land 50 Acres of Meadow and 100 Acres of Pasture in Thornbury Shalston Evershaw Oldwick and Westbury As also the said Messuage and other the Premisses in Looffield and the Rectory of Thornbury before the supposed Trespass and Ejectment entred upon the Possession of the Lady Baltinglass and so possessed made a Lease to the Plaintiff by virtue of which he entred and was possessed until outed by the Defendant as by the Declaration But whither the Defendant be culpable they refer to the Court. Vpon this Verdict the Questions are two 1. The first Whither the Defendants entry into the six Tenements leased to Gower and Hillyard for not payment of the Rent reserv'd upon the day of payment were lawful or not And as to that the Court is of opinion that the Defendants Entry was lawful for that the Leases were not deriv'd out of the Estate of Sir Peter Temple who was but Tenant for life and had no Reversion in him but out of the Estate of Sir Arthur Throgmorton by Limitation of the Proviso in the Deed 12 Jac. so as the Leases were not Leases upon Condition to pay the Rent at the day to which any Demand or Re-entry was requisite for Non-payment but were Leases by Limitation and determined absolutely according to the Limitation Littl. f. 235. a. For this Littleton is express that the words quamdiu dum and dummodo are words of Limitation As if a Lease be made to a Woman dum sola fuerit or dum casta vixerit or dummodo solverit talem reditum or quamdiu solverit talem reditum so are many other words there mentioned And if there be not a performance according to the Limitation it determines the Lease But it is otherwise where a Rent is reserv'd upon Condition for there is a Contract between the Lessor and Lessee and the Law evens the Agreement between them as is most agreeable to Reason and the supposition of their Intention But in the present case Sir Peter Temple had no interest in him out of which such Leases could be deriv'd but had a power only to make them by virtue of the Proviso in Sir Arthur Throgmortons Deed and the Lessees must be subject to such Limitations as are thereby made It was agreed by the Council of the Plaintiff That it was not a Condition for payment of the Rent nor could it be but they would call it a Caution A Condition to determine a Lease or a Limitation is a Caution and a material one but such a Caution as hath no more effect than if it were not at all is a thing insignificant in Law and therefore must not supplant that which in proper terms is a Limitation and hath an effect 2. The next Question is upon the Lease of Looffield which arises upon the words of the Proviso That it should be lawful for Sir Peter Temple to demise all or any the Premisses which at any time heretofore have been usually letten or demised for the term of 21 years or under reserving the Rent thereupon now yielded or paid And the Iury finding the Lands in Looffield to have been demised 12th of the Queen for 21 years for 100 l. Rent and that that term was expired and not finding them demis'd by the space of twenty years before at the time of the Indenture 12 Jac. Whither the Lease by Sir Peter Temple of them be warranted by the Proviso there being reserv'd the Rent reserv'd by the Lease in 12. Eliz. viz. 100. l. The Court is of opinion that the Lease of Looffield is not warranted by that Proviso for these Reasons 1. It is clear Sir Arthur Throgmorton intended to exclude some Lands from being demisable by that
Proviso namely Such as at any time before were not usually let and set to Farm For where a mans power is limited to lease Lands so specially qualified that is let and set usually at any time before when he could not lease at all without such special power given him he is absolutely barr'd from leasing Land which is not so qualified 2. It must be presumed Sir Arthur Throgmorton knew he had such Lands as according to his Intention were not at any time before usually set and let and had reason not to suffer them to be demiseable within that Proviso to the prejudice of those in Reversion As for example his Mansion-house Gardens Curtilages and Lands occupied in Demesne For it had been vain to provide against the leasing of Land in such manner condition'd whereof he had none so condition'd But if notwithstanding it shall be taken that any his Lands which at any time past how long soever since one two or three hundred years were demised as perhaps the scite of his House and all his Demesne were though he knew not of it shall therefore now be demiseable within this Proviso Then is the Proviso inconsistent with it self and repugnant to his meaning for he intended thereby to hinder the demising of some of his Lands But by that construction of the Proviso every part of his Land might be demised for doubtless at some time or other every part of it was demised and probably by Records or other ancient Evidence might appear so to be 3. If this were the meaning of the Proviso the word usually in it was to no purpose for it had been much clearer to say That any Lands at any time heretofore demis'd should be demiseable for 21 years by Sir Peter Temple which doubtless was not Sir Arthur's meaning and consequently this Lease of Looffield not according to his meaning 1. Now for the literal sense of the Proviso Rolls Title Power f. 261. n. 11. 2 Jac. in Banâ—o If power be to make Leases for 3 lives or 21 years of Lands usually letten Land which hath been twice letten is within the Proviso but not Land which hath been but once letten Therefore this Land of Looffield letten but once 12 Eliz. is not within the Proviso But I insist not much upon this case for the words usually demis'd may be taken in two senses The one for the often farming or repeated Acts of leasing Lands to which sense this Case doth reasonably extend But the other sense of Land usually demis'd is for the common continuance of Land in lease for that is usually demis'd and so Land leas'd for 500 years long since is Land usually demis'd that is in lease though it have not been more than once demis'd which is the more receiv'd sense of the words Land usually demis'd 2. The meaning of the words at any time is various and of contrary meaning If it be asked by way of Question Were you at any time at York It is the same as Were you ever or sometime at York So in the Question Was this Land at any time in Lease is the same as Was it ever or some time in Lease But when the words at any time are not part of a Question but of an Answer they have a different and contrary meaning As if it be asked Where may I see or speak with John Stiles and it be answered You may speak with him or see him at any time at his House There the words at any time signifie at all times and not as in the question at some time So when the words are used by way of a plain enunciation and not as part of a Question or Answer As You shall be welcome to my House at any time signifie You shall be welcome at all times So in the present Case if it-be made a Question Was such Land heretofore at any time usually letten and set to Farm imports in the Question Was this Land ever or at some time heretofore how long ago soever usually let to Farm But by way of enunciation if it be said This Land was usually let to Farm at any time heretofore it means This Land was commonly at all times heretofore let to Farm So this Land was usually in Pasture at any time heretofore signifies this Land was always or commonly in Pasture heretofore So you may lease any Land heretofore letten to Farm at any time usually is the same with heretofore letten to Farm commonly at all times And this Construction of the Proviso agrees both with the words and intention of Sir Arthur But what was not farmed at the time of this Proviso made nor 20 years before could not be said to be at any time before commonly Farmed for those 20 years was a time before in which it was not farmed But to come closer The Proviso is that Leases may be made for 21 years of any the Lands in the Deed reserving the Rents thereupon reserved at the time of the Deed made viz. 12 Jac. Which necessarily implies that the Land demiseable by that Proviso must be Land which then was under Rent for where no Rent then was the Rent then thereupon reserv'd could not be reserv'd But Looffield had then no Rent upon it for it was not let of 20 years before nor then and therefore was not demiseable by that Proviso The words or more will not at all help the Plaintiff for the words more or less are words of relation the one of addition to what was before the other of diminution for more or less must relate to something positive in the kind before and can never be a relation to nothing So more wages necessarily implies some before more meat more drink more company and in all expressions more denotes a relation to somewhat before of the kind and in the present Case reserving more Rent must imply some before reserved And therefore where none was at the time of the Deed made 12 Jac. there cannot in any congruity of speech more be reserved or intended to be reserved Quaere If the Record be mended in the point of finding the death of Sir Peter Temple and when he died In this the Chief Justice delivered the Resolution of the whole Court Hill 21 22 Car. II. Rot. 2259. C. B. Ralph Dixon Plaintiff Harts ss versus Dean Harrison Defendant In a Replevin Quare cepit Averia ipsius Radulphi ea detinuit contra vadios plegios c. Distress 21 Maii 21 Car. 2. THe Plaintiff declares That the Defendant 21 die Maii 21 Regis nunc at Sandridge in a place called Fregmorfield took three Cows of the Plaintiffs and detain'd them against Pledges quousque to his damage 40 l. The Defendant as Bailiff of Elizabeth Rooper Widow Samuel Hildersham Gent. and Mary his Wife Michael Biddulph Esq and Frances his Wife Humphrey Holden Esq and Theodosia his Wife avows and justifies the Caption for that the place in quo c. contains a Rood of
Land cum pertinentiis in Sandridge aforesaid That long before the Caption Ralph Rowlett Knight was seis'd of the Mannor of Sandridge in the said County whereof the said place is and was parcel time out of mind Grant of the Rent June 26 8 Eliz. That the said Sir Ralph 26. June 8 Eliz. at Sandridge aforesaid by his Deed in writing under his Seal produc'd in Court thereby granted and confirmed to Henry Goodyeare then Esquire and after Knight and to the Heirs of his Body a yearly Rent of 30 l. out of all his said Mannor and other his Lands in Sandridge aforesaid payable at the Feasts of St. Michael the Arch-angel and the Annunciation The first payment at such of the said Feasts which should happen after the expiration surrender or forfeiture to be made after Sir Ralph Rowlett's death of certain terms of years of parcel of the Premisses made to one William Sherwood and Ralph Dean severally With Clause of Entry and Distress to Henry and the Heirs of his Body if the Rent were unpaid And that Sir Ralph gave the said Henry seisin of the said Rent by payment of a peny as appears by the Deed. Rowletts death 1 Sept. 33 Eliz. Sir Ralph Rowlett after the First day of September 33 Eliz at Sandridge aforesaid died That after the Second day of September Terms expired Sept. 2. 33 Eliz. 33 Eliz. the said terms of years expired whereby the said Henry became seis'd of the said Rent in tail That Henry had Issue the said Elizabeth and Mary Hen. Good-year died 1. Octob. 33 Eliz. and one Anne his Daughters and Coheirs and died 1. Octob. 33 Eliz so seis'd That the said Coheirs being seis'd of the said Rent Mary married Samuel 1. May 1634. and Anne the same time married John Kingston to them and the Heirs of their Bodies the First of May 1634. Mary married the said Samuel Hildersham and Anne married one John Kingston whereby the said Elizabeth and Samuel and Mary in right of the said Mary and John and Anne in right of Anne were seis'd of the Rent December 25. 1635. Anne had Issue by John her Husband Anne had Issue Frances and Theodofia she and her Husband John died 1 Jan. 1635. the said Frances and Theodosia and John her Husband and Anne died 1. Januarii 1635. That thereby Elizabeth Samuel and Mary in right of Mary Frances and Theodosia became seis'd of the Rent April the 10th 1647. Frances married the said Biddulph and Theodosia the said Humphrey Holden whereby Elizabeth Samuel and Mary in right of Mary Biddulph and Frances in right of Frances and Holden and Theodosia in right of Theodosia became seis'd of the Rent And for 120 l. for four years arrear after the death of John and Anne ending at the Feast of St. Michael 1655. being unpaid at the time and place c. the Defendant as their Bailiff entred and distrained the said Cows The Plaintiff demands Oyer of the Deed of Grant and hath it in these words c. And then the Plaintiff replies that before the time of the Caption that is A die Paschae in quindecim dies a Fine was levied in the Court of Common Pleas in the One and twentieth of the King before the Iustices there c. between Richard Harrison Esquire and the Avowants of the said Rent with Warranty to the said Richard and his Heirs And that this Fine was to the use of the Conizors and their Heirs and demands Iudgment The Defendant thereupon demurrs WHERE the Law is known and clear though it be unequitable and inconvenient the Iudges must determine as the Law is without regarding the unequitableness or inconveniency Those defects if they happen in the Law can only be remedied by Parliament therefore we find many Statutes repealed and Laws abrogated by Parliament as inconvenient which before such repeal or abrogation were in the Courts of Law to be strictly observed But where the Law is doubtful and not clear the Iudges ought to interpret the Law to be as is most consonant to equity and least inconvenient And for this reason Littleton in many of his Cases resolves the Law not to be that way which is inconvenient which Sir Edward-Cook in his Comment upon him often observes and cites the places Sect. 87. In the present Case there are several Coparceners whereof some have Husbands seis'd of a Rent Charge in tail the Rent is behind and they all levy a Fine of the Rent to the use of them and their Heirs If after the Fine levied they are barr'd from distraining for the Rent arrear before the Fine is the Question It being agreed they can have no other remedy because the Rent is in the reality and still continuing If they cannot distrain the Consequents are 1. That there is a manifest duty to them of a Rent for which the Law gives no remedy which makes in such case the having of right to a thing and having none not to differ for where there is no right no relief by Law can be expected and here where there is right the relief is as little which is as great an absurdity as is possible 2. It was neither the Intention of the Conizors to remit this Arrear of Rent to the Tenant nor the Tenants to expect it nor could the Conizors remit it but by their words or intentions or both nor did they do it by either 3. It is both equitable in it self and of publick convenience that the Law should assist men to recover their due when detain'd from them 4. Men in time of Contagion of Dearth of War may be occasioned to settle their Estates when they cannot reasonably expect payment of Rents from their Tenants for Lives or others and consequently not seasonably distrain them and it would be a general inconvenience in such case to lose all their Rents in Arrear So as both in Equity and Conveniency the Law should be with the Avowants In the next place we must examine Whether the Avowants that is the Conizors of the Fine be clearly barr'd by Law to distrain for the Rent arreare before the Fine For it must be agreed they have no other remedy by the Common Law or otherwise to which purpose I shall open some Premises that my Conclusion may be better apprehended 1. A privity is necessary by the Common Law to distrain and avow between the Distrainor and the Distrained that the Tenant may know to whom the Rent or other Duty ought to be paid and likewise know a lawful distress from a tortious taking of his Cattel 2. This privity is created by Attornment either in Fact or in Law by the Tenant to the Lord to the Reversioner to the Grantee of a Remainder or of a Rent by Deed or by Fine Litt. Sect. 579. For this Sir Edward Cooe upon the 579th Section of Littleton and in many other of his Sections The Conizee of a Fine before Attornment cannot distrain because an
the Grantee for life when his Estate was enlarg'd needing no new Attornment or privity he did not thereby lose the Rent-arrear If two Jointenants in Fee let the Land for life Litt. Sect. 574 reserving a Rent to them and their Heirs if one release to the other and his Heirs this Release is good and he to whom it was made shall have the Rent of Tenant for life only and a Writ of Waste without Attornment to such Release for the privity which once was between the Tenant for life and them in the Reversion So is it if one Jointenant confirms the Land to the other and his Heirs Litt. Sect. 523. The Law must necessarily be the same if a man seis'd of a Rent-service or Rent-charge in Fee grant it to two and their Heirs or to two and the Heirs of one of them and the Tenant attorn if after one Jointenant release to the other or he which hath the Inheritance to him which hath but an Estate for life and to his Heirs the person to whom such Release is made shall thereby have a Fee-simple whereas before he had but for life in the Rent and an Estate absolute which before was joynt without any new Attornment for the reason of the former Case because there was once a privity between the Tenant and them which was never destroyed So is it if there be Lessee for life the Remainder for life he Litt. Sect. 573 in the Reversion releaseth to him in the Remainder and to his Heirs all his right he in the Remainder hath thereby a Fee and shall have a Writ of Waste and likewise the Rent of Tenant for life if any were without any Attornment of the Tenant for life for the former privity between them Enlargement of Estate by descent If a man seiz'd of a Rent-charge in Fee grant it for life to A. and the Tenant attorns after the Grantor grants the Reversion of this Rent to the Father of A. and his Heirs to whom A. attorns as in this Case he may by Sir Edward Coke's Comment and after the Father dies Coke's Litt. Sect. 556. and this Reversion descends upon A. whereby he hath a Fee-simple in the Rent no new Attornment is requisite for this enlargement of Estate Diminishing of Estate A man seis'd of a Rent-charge in Fee grants this Rent for Seven years to commence from the time of his death the Remainder in Fee and the Tenant attorns in the life time of the Grantor 2. Rep. Sir Rowland Hayward's Case as he must by the Resolution in Sir Rowland Hayward's Case 2. Rep. here the Grantor hath diminish't his Estate in the Rent from a Fee-simple to an Estate for life yet it cannot be doubted but he may distrain for his Rent-arrear And so is the Law where a man seis'd in Fee of a Rent for good consideration Covenants to stand seiz'd for life with Remainder over Vpon these grounds upon Littleton If a man seis'd of a Rent-charge in Fee grant it over to a Feme sole for a term of years the Tenant attorns and she take Husband and during the term the Grantor confirm the Rent to the Husband and Wife for their lives or in Fee they become Jointenants for life or in Fee of this Rent and need no new Attornment This Case is proved by a Case in Littleton Sect. Hence it is manifest that where a man hath a Rent for which he may once lawfully distrain by Attornment of the Tenant which gives sufficient privity to avow such Grantee or Possessor of the Rent may enlarge or change his Estate in the Rent to a greater or lesser or different Estate and needs no new Attornment or privity therefore to distrain and avow for such Rent whenever Arrear unless he become dispossess'd of the Rent and the privity to distrain and avow thereby be destroyed by a Right gained by some other to have the Rent and a Right in the Tenant to pay it to some other 9 H. 6. f. 43. Br. Avoury p. 123. To this purpose there is a Case If a man be seis'd of Land in Jure uxoris in Fee and leaseth the Land for years reserving Rent his Wife dies without having had any Issue by him whereby he is no Tenant by the Curtesie but his Estate is determined yet he may avow for the Rent before the Heir hath made his actual Entry This Case is not adjudg'd but it is much the better Opinion of the Book Objections The Conizors are in possession since the Fine of another Estate Obj. 1 than they were before the Fine that is according to the uses of the Fine which they could not be without an Alienation of the Rent to the Conizee by the Fine to enable the raising of that new use out of the Estate transferr'd to the Conizee by the Fine That by such Alienation the former privity between the Conizors and the Tenant which they had as Parceners by Attornment to the first grant of the Rent was destroy'd and therefore they cannot now distrain but for Rent-arrear since the Fine by the possession given them by the Statute of 27 H. 8. to which no Attornment is necessary and not for any Arrears due before upon the old privity As specious as this Reason seems it may be answer'd Answ That the Conizors had alwaies an actual and separate seisin and possession of the Rent and were at no time without it therefore the Conizee could have no several and separate possession of it at any time for it is not possible that two severally can possess the same thing simul semel for the same thing can no more be in two separate possessions at the same time civilly then the same thing can be in two separate places at the same time naturally Is not the Reason then of equal force that the Conizors were at no time out of possession and seisin of this Rent and consequently never lost the power to distrain for it As to say the Conizee had sometime a separate possession of the Rent from the Conizors out of which the new uses were raised and therefore the privity to distrain for the old Arrears was for sometime destroy'd Besides if the old privity be destroy'd the greatest absurdity imaginable in Law follows That a man hath a right to a thing for which the Law gives him no remedy which is in truth as great an absurdity as to say the having of right in law and having no right are in effect the same When as on the other side the loss of the Arrears and the Conizors right to them is a Consequent deduc'd from the destruction of the old privity between the Conizors and the Tenant by an imaginary and not a real possession of the Rent by the Conizee Obj. 2 Ognell's Case 4. Rep. Nor will it serve to say as is insinuated in Ognell's Case that the Conizors have dispens'd with their own right in the Arrears and therefore such
all Lands Tenements Meadows Tithe Corn and Grain Hay and Wool and all Profits to the said Parsonage belonging And also the Vicaridge of Hooknorton aforesaid with the Appurtenances And all Lands Tithes Profits to the said Vicaridge belonging And also a Pasture called Prestfield with the Appurtenances in Hooknorton aforesaid And all Commons of Sheep call'd by the name of their Founders Flock And the Hay of a Meadow call'd Brown-mead with the customary works thereto pertaining And the Tithe and Duty of a Mead call'd Hay-mead in Hooknorton aforesaid Except and reserved to the said Abbot and Covent and their Successors All Tenants and Tenantries then or after to be set by Copy of Court-Roll All Fines Reliefs Escheats Herriots Amerciaments Pains Forfeits and all Perquisites of Courts Barons and Leets To have and to hold the said Farm or Mannor and all other the Premisses with the Appurtenances Except before excepted to the said Croker his Executors and Assigns from the Feast of the Annunciation of our Lady last past before the Date of the said Deed Indented for the term of Eighty years rendring to the said Abbot Covent and their Successors yearly during the said term For the said Mannor and Farm 9 l. For the said Parsonage 22 l. 2 s. For the Common of Sheep Hay and Custom-works of Brown-Mead 5 l. For the Wool 12 l. For Prest-field 6 l. 13 s. 4 d. For the Vicaridge 6 l. 13 s. 4 d. of lawful mony c. at the Feasts of St. Michael the Arch-angel the Annunciation of our Lady by equal portions As by the same Deed Indented amongst divers other Covenants and Grants more plainly appeareth And where also as the said Bishop by his other Deed Indented Dated 8. October 1 Edw. 6. hath demis'd and to farm lett unto the said John Croker all that his Mannor of Hooknorton aforesaid with all Messuages Tofts Cottages Orchards Curtilages Lands Tenements Meadows Leasowes Pastures Feedings Commons waste Grounds Woods Underwoods Waters Mills Courts-Leets Fines Herriots Amerciaments Franchises Liberties Rents Reversions Services and all other Hereditaments whatsoever they be set lying and being in Hooknorton aforesaid in the said County with the Appurtenances Except certain Lands and Tenements in the said Town in the Tenure of the said John Croker for certain years then enduring To have and to hold All the said Mannor of Hooknorton and all other the Premisses with the Appurtenances Except before excepted to the said John Croker and his Assigns from the Feast of St. Michael the Arch-angel last past before the Date of the said latter Deed Indented to the full end of the term of Ninety years from thence next ensuing Rendring to the said Bishop and his Successors yearly during the said term Eleven pounds four shillings and nine pence at the Feasts of the Annunciation and St. Michael the Arch-angel by equal portions as by the said latter Deed among other Covenants and Grants more plainly appears The Reversion of all which Premisses are in the said Bishop and to him and his Successors do belong as in Right of his Church Now witnesseth That the said Bishop hath demis'd Ind. 1 Mar. and to Farm lett and by these Presents doth demise c. to the said John Croker All the said Mannor and Farm of Hooknorton together with all Messuages c. And all and singular other the Premisses with the Appurtenances in the said several Indentures specified and contain'd To have and to hold the said Premisses contain'd in the said first Indenture to the said John Croker his Executors and Assigns from the end expiration and determination of the said term specified in the said first Indenture unto the end and term of Ninety years next ensuing yielding therefore yearly to the said Bishop and his Successors for the said Premisses specified in the said first Indenture such and like Rents as in the said first Indenture are reserv'd at the same daies and times and To have and to hold All the Premisses specified in the said latter Indenture from the end expiration and determination of the said term specified in the said latter Indenture until the end and term of Ninety years then next ensuing Rendring yearly for the Premisses in the said latter Indenture specified such and like Rent as is reserv'd by the said latter Indenture and at the same days and times Then follows a Clause of Distress if the Rent be behind for a Month. And if the said several yearly Rents reserved by these Indentures or any of them be unpaid in part or in all by the space of one quarter of a year after any the said Feasts at which the same ought to be paid and be lawfully demanded and no sufficient Distress upon the Premisses whereupon the same is reserved to be found Then to be lawful for the said Bishop and his Successors into such of the Premisses whereupon such Rents being behind is or are reserved to re-enter and to have as in their former estate And the said Jurors further say That the aforesaid Indenture of Demise afterwards the Tenth of May Anno 1 Mar. aforesaid by the then Dean and Chapter of Oxford under their Common Seal was confirm'd and find the tenor of the Confirmation in haec verba They further find That the said Two hundred Acres of Pasture at the time of making the said Indenture and at the time of the Trespass and Ejectment were and yet are parcel of the said Mannor of Hooknorton They further find That the Rent for all the said demis'd Premisses reserv'd by the said Indenture for one whole half year ended at the Feast of Saint Michael the Arch-angel 1643. was behind and unpaid and that Robert late Bishop of Oxford the Nine and twentieth and Thirtieth Day of December 1643. into the Parsonage House then and by the Space of Forty or Fifty years before reputed and call'd the Mannor-house And that he then at the said Parsonage-house by the space of One hour next before the Sun-setting of both the said two daies remain'd and continued until and by the space of One hour after Sun-setting of both daies demanding and then did demand the Rent for the half of the year aforesaid They further say That there was no sufficient Distress upon the Premisses at the time of the demand of the said Rent thereupon And that the said Bishop the said Thirtieth Day of December 1643. aforesaid into the said Premisses enter'd They further say That all the Right State and Title term of Years and Interest of and in the Mannor Tenements Rectory and other the said Premisses by virtue of the said Indenture of Demise by the said late Bishop as aforesaid granted to the said John Croker by mean Assignments came to the said Thomas Wise That by virtue of the said several Assignments the said Thomas Wise afterwards the Fourth of January 1667. into the Premisses enter'd and was possessed for the Residue of the term of years prout Lex postulat That he so possessed
England or into parts not of the Dominion of England nor follows it because Goods were intended to be sold that is as Merchandise in a place where good market was for them that they were intended to be sold at any other place where no profit could be made or not so much or where such Goods were perhaps prohibited Commodities therefore the words of the Act brought as Merchandise must mean that the Goods are for Merchandise at the place they are brought unto And Goods brought or imported any where as Merchandise or by way of Merchandise that is to be sold must necessarily have an Owner to set and receive the price for which they are sold unless a man will say That Goods can sell themselves and set and receive their own prises But wreck Goods imported or brought any where have no Owner to sell or prize them at the time of their importation and therefore are not brought by way of or as Merchandise to England or any where else Secondly Though in a loose sense inanimate things are said to bring things as in certain Seasons Rain to bring Grass in other Seasons some Winds to bring Snow and Frost some Storms to bring certain Fowl and Fish upon the Coasts Yet when the bringing in or importing or bringing out and exporting hath reference to Acts of Deliberation and Purpose as of Goods for sale which must be done by a rational Agent or when the thing brought requires a rational bringer or importer as be it a Message an Answer an Accompt or the like No man will say That things to be imported or brought by such deliberative Agents who must have purpose in what they do can be intended to be imported or brought by casual and insensible Agents but by Persons and Mediums and Instruments proper for the actions of reasonable Agents Therefore we say not That Goods drown'd or lost in passing a Ferry a great River an arm of the Sea are exported though carried to Sea but Goods exported are such as are convey'd to Sea in Ships or other Naval Carriage of mans Artifice and by like reason Goods imported must not be Goods imported by the Wind Water or such inanimate means but in Ships Vessels and other Conveyances used by reasonable Agents as Merchants Mariners Sailors c. whence I conclude That Goods or Merchandise imported within the meaning of the Act can only be such as are imported with deliberation and by reasonable Agents not casually and without reason and therefore wreck'd Goods are no Goods imported within the intention of the Act and consequently not to answer the Kings Duties for Goods as Goods cannot offend forfeit unlade pay Duties or the like but men whose Goods they are And wreck'd Goods have not Owners to do these Offices when the Act requires they should be done Therefore the Act intended not to charge the Duty upon such Goods Judgment for the Plaintiff The Chief Justice delivered the Opinion of the Court. Hill 23 24 Car. II. C. B. Rot. 695. Richard Crowley Plaintiff In a Replevin against Thomas Swindles William Whitehouse Roger Walton Defendants THE Plaintiff declares That the Defendants the Thirtieth of December 22 Car. 2. at Kings Norton in a place there called Hurley field took his Beasts four Cows and four Heifers and detain'd them to his damage of Forty pounds The Defendants defend the Force And as Bailiffs of Mary Ashenhurst Widow justifie the Caption and that the place contains and did contain when the Caption is suppos'd Twenty Acres of Land in Kings Norton aforesaid That long before the Caption one Thomas Greaves Esquire was seis'd of One hundred Acres of Land and of One hundred Acres of Pasture in Kings Norton aforesaid in the said County of Worcester whereof the Locus in quo is and at the time of the Caption and time out of mind was parcel in his demesne as of Fee containing Twenty Acres That he long before the Caption that is 18 die Decemb. 16 Car. 1. at Kings Norton aforesaid by his Indenture in writing under his Seal which the Defendants produce dated the said day and year in consideration of former Service done by Edmond Ashenhurst to him the said Thomas did grant by his said Writing to the said Edmond and Mary his Wife one yearly Rent of Twenty pounds issuing out of the said Twenty Acres with the Appurtenances by the name of all his Lands and Hereditaments scituate in Kings Norton aforesaid Habendum the said Rent to the said Edmond and Mary and their Assigns after the decease of one Anne Greaves and Thomas Greaves Vncle to the Grantor or either of them which first should happen during the lives of Edmond and Mary and the longer liver of them at the Feasts of the Annunciation of the blessed Virgin Mary and St. Michael the Arch angel by equal portions The first payment to begin at such of the said Feasts as should first happen next after the decease of the said Anne Greaves and Thomas the Vncle or either of them That if the Rent were behind in part or in all it should be lawful for the Grantees and the Survivor of them to enter into all and singular the Lands in King's Norton of the Grantor and to distrain and detain until payment By vertue whereof the said Edmond and Mary became seis'd of the said Rent in their Demesne as of Free hold during their Lives as aforesaid The Defendants say further in Fact That after that is to say the last day of February in the Two and twentieth year of the now King the said Anne Greaves and Thomas the Vncle and Edmond the Husband died at King's Norton That for Twenty pounds of the said Rent for one whole year ending at the Feast of Saint Michael the Arch-Angel in the Two and twentieth year of the King unpaid to the said Mary the Defendants justifie the Caption as in Lands subject to the said Mary's Distress as her Bailiffs And averr her to be living at King's Norton aforesaid The Plaintiff demands Oyer of the Writing Indented by which it appears That the said Annuity was granted to Edmond and Mary and their Assigns in manner set forth by the Defendants in their Conuzance But with this variance in the Deed And if the aforesaid yearly Rents of Ten pounds and of Twenty pounds shall be unpaid at any the daies aforesaid in part or in all That it shall be lawful for the said Edmond and Mary at any time during the joynt natural Lives of the said Anne Greaves and Thomas Greaves the Uncle if the said Edmond and Mary or either of them should so long live and as often as the said Rents of Twenty pounds or any parcel should be behind to enter into all the said Thomas Greaves the Grantors Lands in King's Norton aforesaid and to Distrain Vpon Oyer of which Indenture the Plaintiff demurrs upon the Conuzance Two Exceptions have been taken to this Conuzance made by the Defendants The first for that
it is said The Rent was granted out of the Twenty Acres being the Locus in quo by the Name of all the Grantors Lands and Hereditaments in King's Norton and that a per nomen in that Case is not good The Case of Grey and Chapman was urg'd 43 Eliz. Cro. f. 822. where by Indenture S. one Prudence Cousin let a House and Twenty Acres of Land by the Name of all her Tenements in S. But it was not alledg'd in what Vill the Acres were The Court was of Opinion in Arrest of Judgment that the naming of the Vill in the per nomen was not material Another Case to the same purpose was urg'd of Gay against Cay where a Grant in possession was pleaded 41 Eliz. Cro. f. 662. pl. 10. and not as in Reversion And upon view of the Record the Grantor had granted Tenementa praedicta per nomen of a Mesuage which A. P. held for life where the per nomen was adjudg'd not to make good the Grant The Court is of Opinion notwithstanding these Cases That in the present Case the per nomen is well enough because it is alledg'd the Grantor was seis'd of Two hundred Acres of Land in Kings Norton whereof the locus in quo being Twenty Acres is parcel By reason whereof the Rent being granted out of every parcel of the Two hundred Acres it is well enough to say it was granted out of the Twenty Acres per nomen of all his Lands in Kings Norton because the Twenty Acres are alledg'd to be parcel of all his Lands there being Two hundred Acres But in Chapman's Case It is not alledg'd that the Twenty Acres of Land demis'd were parcel of all the Tenements in S. per nomen of which the Twenty Acres were to pass As for the second Case of Gay it was not possible that Lands granted as in possession should pass per nomen of Land that was in Reversion The second Exception is Because the Clause of Entry and Distress in the Deed upon Oyer of it differs from the Clause of Entry and Distress alledg'd in the Conizance For in the Conizance it is said It should be lawful to Enter and Distrain if the rent were unpaid and behind after any of the Feasts whereon it was due that is at any Feast that should first happen after the death of Anne or Thomas Greaves for the Rent did not commence before But by the Deed If the Rent were behind at any the Feasts the Entry and Distress is made to be lawful for it during the joynt Lives of Anne and Thomas Greaves the Uncle and during their joynt lives it could not be behind for it commenc'd not till one of them were dead Scarplus Handkinson 37 El. Cro. f. 420. words repugnant and sensless to be rejected So as the sense must run That if the Rent were behind it should be lawful to distrain during the joint Lives of Anne and Thomas Greaves which was before it could be behind for it could not be behind till the death of one of them Therefore those words during their joynt natural lives being insensible ought to be rejected For words of known signification but so placed in the Context of a Deed that they make it repugnant and sensless are to be rejected equally with words of no known signification Judgment pro Defendent The Chief Justice delivered the Opinion of the Court. Trin. 16 Car. II. C. B. Rot. 2487. But Adjudg'd Mich. 20 Car. II. Bedell versus Constable BY the Act of 12 Car. 2. cap. 24. It is among other things Enacted That where any person hath or shall have any Child or Children under the Age of One and twenty years and not married at the time of his death It shall and may be lawful to and for the Father of such Child or Children whether born at the time of the decease of the Father or at that time in ventre sa mere or whether such Father be within the Age of One and twenty years or of full Age by his Deed executed in his life time or by his last Will and Testament in writing in the presence of two or more credible Witnesses to dispose of the custody and tuition of such Child or Children for and during such time as he or they shall respectively remain under the Age of One and twenty years or any lesser time to any person or persons in possession or remainder other than Popish Recusants And such disposition of the Custody of such Child or Children made since the Four and twentieth of February 1645. or hereafter to be made shall be good and effectual against all and every person or persons claiming the custody or tuition of such Child or Children as Guardian in Soccage or otherwise And such person or persons to whom the custody of such Child or Children hath been or shall be so disposed or devised as aforesaid shall and may maintain an Action of Ravishment of Ward or Trespass against any person or persons which shall wrongfully take away or detain such Child or Children for the Recovery of such Child or Children and shall and may recover Damages for the same in the said Action for the use and benefit of such Child or Children And such person or persons to whom the custody of such Child or Children hath been or shall be so disposed or devised shall and may take into his or their custody to the use of such Child or Children the profits of all Lands Tenements and Hereditaments of such Child or Children and also the custody tuition and management of the Goods Chattels and personal Estate of such Child or Children till their respective Age of One and twenty years or any lesser time according to such Disposition aforesaid and may bring such Action or Actions in relation thereto as by Law a Guardian in Common Soccage might do By the Will is devised in these words I do bequeath my son Thomas to my Brother Robert Towray of Rickhall to be his Tutor during his Minority Before this Act Tenant in Soccage of Age might have dispos'd his Land by Deed or last Will in trust for his Heir but not the Custody and Tuition of his Heir for the Law gave that to the next of Kinn to whom the Land could not descend But Tenant in Soccage under Age could not dispose the Custody of his Heir nor devise or demise his Land in trust for him in any manner Now by this Statute he may grant the Custody of his Heir but cannot devise or demise his Land in trust for him for any time directly for if he should the devise or demise were as before the Statute as I conceive which is most observable in this Case I say directly he cannot but by a mean and obliquely he may for nominating who shall have the Custody and for what time by a consequent the Land follows as an incident given by the Law to attend the custody not as an Interest devis'd or demis'd
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
as much as to say wherein no man had right for that which is equally every mans right is no mans right Whence it follows for I shall not speak of the usage or extent of such a possession by natural Occupancy it being a subject too large and not necessary for my present purpose 1. That there can be no Occupancy natural of any thing wherein another than the Occupant hath right For by the definition made natural Occupancy is the first right 2. A Claim without actual possession cannot make a man a natural Occupant For 1. When a Claim is cannot be possibly known to all concern'd in the Occupancy of a natural thing and what cannot be known is as to all effect of right as if it had not been nor is there any Character of a natural Claim but the possession and use of the thing but civilly there may either by word or other sign agreed on 2. The end of a natural Right to any natural thing is the separate use of the thing to a part of Mankind which cannot be used by all Mankind but if Claim only would give a Right to the things of nature they might still remain as much without use after the Claim as before which agrees not with the end of Nature in giving a Right to natural things 3. If Claim could give a Natural Right one might claim all things in the Universe not already appropriated and might have done so in the beginning of time when nothing almost was appropriated 4. A natural Occupant hath no Estate of Fee Freehold or the like which are Estates formed and raised by municipal Laws but hath only a bare possession to keep or forsake 5. That Land possessed by a natural Occupant must be without any sort of Vassallage of Service Rent Condition or other Charge whatsoever for those servitudes upon the Land cannot be conceiv'd without a former right in him that laid them but natural Occupancy of things wherein none had any former right or having any have deserted it for naturally a man can have nothing against his own will 6. Two or more cannot at the same time have severally plenary possession that is Occupancy of the same thing therefore none can have right to that by reason of possession whereof another is already possess'd for then there would be two plenary Possessors severally of the same thing at the same time which is impossible And although every Nation hath by Consent and Agreement among the people of it its proper Laws to guide and determine mens Properties to all things capable of property and ownership yet the ancientest Nations of the World have no other right against each other to their own Countries and Territories than this original and natural occupancy and that Nation that will not admit a right by occupancy to another Nation in the Land so possess'd by it must at the same time confess they have no right to their own which they hold but in like manner They who would be further satisfied concerning this kind of occupancy may resort for exactness above other Books upon this Subject to Mr. Selden's Mare Clausum Seldeni Mare Clausum l. 1. Grotius de Jure Belli l. 1. c. 3 4. lib. 1. and to Hugo Grotius his first Book de Jure Belli Pacis c. 3. de acquisitione originaria rerum c. 4. de derelictione praesumpta eam secuta occupatione c. 1. By Civil Occupancy I mean such an occupancy either of things immoveable as Lands or of things moveable as is according to institution and the law of the place and particularly according to the Law of England as to the decision of the Question before us 2. By the Law of England there is no occupancy by any person of any thing which another hath a present right to possess wherein the Law of the Land agrees with that of natural occupancy Occupancy by the Law must be of things which have natural existence as of Land or of other natural things not of things which have their being and creation from Laws and Agreements of men for there is no direct and immediate occupancy of a Rent a Common an Advowson a Fair a Market a Remainder a Dignity and the like Cok. Litt. f. 41. b. Cr. 41 El. f. 721. Crauleys C. p. 50. no Occupancy of a Rent There can be no Occupant of any thing that lieth in grant and cannot pass without Deed because every Occupant must claim by a que estate and averr the life of Cestuy que vie And in this the Civil Occupancy with us of Land agrees with Natural Occupancy which must be of a thing that hath natural existence and not only legal But although the Occupancy be always of a natural thing yet the Occupant doth thereby by the Law enjoy several things many times that have their being by Law only as an Occupant of Land may thereby enjoy a Common Occupant of a House Estovers of the demesne Lands of a Mannor the Services and Advowsons appendant which are not themselves natural things but things created by Law nor are they immediately and by themselves capable of Occupancy but with reference to and as adjuncts of the Land and herein the civil Occupany differs from the natural And the reason is clear because the occupancy of the Land which ought not to lye void doth not sever or separate any thing from the Land which the Law hath joyned with it and if it doth not separate from it that which is joyn'd with it by Law though that be not capable of Occupancy in it self as an Advowson or Common it must follow that such things continue joyn'd or belonging to the Land as before notwithstanding the occupancy of the Land Cok. Litt. f. 41. b. In civil occupancy the Land in occupancy is charg'd with all the servitude impos'd by the first Lessor or by the Law As 1. to the payment of Rent 2. to be subject to waste 3. to forfeiture 4. to other Conditions wherein it differs from Land whereof a man is a natural occupant As to the civil occupancy of moveable things which are commonly termed personal things or goods there are few of those in our Law that have not a Proprietor and consequently no Occupant can be of them those which fall under occupancy of that kind are for the most part found in things ferae naturae whose acquisition is either per piscationem Bract. l. 2. c. 1. as in Fish or per aucupium as in Fowl or per venationem by hunting These do cedere occupanti communi Jure 1. Hence it follows by way of Inference and Corollary That there can be no primary and immediate Occupancy of a Tithe for it is not in its own nature capable of Occupancy more than a Rent or Common is and is in truth in its nature but a Rent it cannot pass by it self but by Deed and as other things which lye in grant A second thing that follows
Interest for the Lessee Taverner had a Lease of the House Glebe and Barn and the Tithe continued in Astly 2. This severance was equally the same as if the Tithe had been demis'd to Taverner and the House and Land had remained still in Astly's possession 3. Though the Freehold of both remained still in Astly at his death notwithstanding the divided Interest in the Land and Tithe yet the Freehold being a thing quatenus Freehold not capable in it self of Occupancy nor no natural but a legal thing which the Law casts upon him that is Occupant that will not concern the Questions either who was Occupant or of what he was Occupant Cok. Litt. f. 41. b. 4. I take it for clear That a naked Tithe granted by it self pur auter vie and the Grantee dying without assignment living Cestuy que vie is not capable of Occupancy more than a Rent a Common in gross and Advowson in gross a Fair or the like are it being a thing lying in Grant equally as those others do Coke's Littleton There can be no Occupant of any thing which lyeth in Grant and cannot pass without Deed. I cited the place at full before with other Authorities against Occupancy of a Rent 5. If a man dye seis'd of Land which he holds pur auter vie and also dies seis'd of Rent held pur auter vie or of an Advowson or Common in gross held by distinct Grants pur auter vie and the same Cestuy que vie or the several Cestuy vies for that will not differ the Case living Though the Grantee died seis'd of a Freehold in these several things I conceive that he which enters into the Land first after his death will be Occupant of the Land which was capable of Occupancy but neither of the Tithe Advowson nor Common which are not capable of Occupancy and have no more coherence with dependence upon nor relation to the Land than if they had been granted pur auter vie to another who had happen'd to dye in like manner as the Grantee of the Land did And that which hath intricated men in this matter hath been a Conception taken up as if the Occupant had for his object in being Occupant the Freehold which the Tenant died seis'd of which is a mistake for the subject and object of the Occupant are only such things which are capable of Occupancy not things which are not and not the Freehold at all into which he neither doth nor can enter but the Law casts it immediately upon him that hath made himself Occupant of the Land or other real thing whereof he is Occupant that there may be a Tenant to the Precipe But as was well observed by my Brother Wilmott No Precipe lies for setting out Tithe at Common Law and I doubt not by the Statute of 32 H. 8. c. 7. though Sir Edward Coke in his Litt. f. 159. a. seems to be of opinion Coke Litt. 159. a. that a man may at his Election have remedy for witholding Tithe after that Statute by Action or in the Ecclesiastical Court by that Statute doubtless he hath for the title of Tithe as for title of Land or for the taking of them away but not perhaps for not setting them out 6. When a Severance therefore is once made of the Land and Tithe it is as much severance of them though the Tithe remain in Astly's possession as if he had leas'd the Land to Taverner and the Tithe to another if then Taverner becoming Occupant of the Land should have had nothing in the Tithe leas'd to another as the Land was to him no more shall he have the Tithe remaining in Astly himself at his death Still we must remember the ground insisted on That no Occupancy begins with the Freehold but begins by possessing the Land or other real thing which was void and ownerless and that by Act of Law the Freehold is cast upon the Possessor either entring where the possession was void or being in possession when Tenant pur auter vie died either as Lessee for years or at will to Tenant pur auter vie for the Law equally casts the Freehold upon him as was resolved in Chamberleyne and Eures Case reported by Serjeant Rolls and others Second Part. f. 151. Letter E. and in Castle and Dods Case 5 Jac. Cr. f. 200. Therefore after such Severance made by the Tenant pur auter vie the Land and Tithe are as distinct and sunder'd from each other as if Tenant pur auter vie had held them by distinct Grants or leas'd them to distinct persons In the next place I shall agree That the Occupant of a House shall have the Estovers or way pertaining to such House the Occupant of the Demesne of a Mannor or of other Land shall have the Advowson appendant or Villain regardant to the Mannor or Common belonging to the Land and the Services of the Mannor not sever'd from the Demesne before the occupancy For a Possessor of a House Land Demesne of a Mannor as Occupant doth not by such his possession sever any thing belonging to the Land House or Demesne more than the Possessor by any other title than occupancy doth and if they be not sever'd it follows they must remain as before to the Possessor of that to which they pertain So if a Mannor being an intire thing consisting of Demesnes and Services which are parts constituent of the Mannor the possessing and occupancy of the Demesns which is one part can make no severance of the Services from the intire and therefore the Occupant hath all And these things though primarily there can be no occupancy of them being things that lye in Grant and pass not without Deed yet when they are adjuncts or pertaining to Land they do pass by Livery only without Deed. Coke Litt. f. 121. 8. Sect. 183. Whatsoever passeth by Livery of Seisin either in Deed or in Law may pass without Deed and not only the Rent and Services parcel of the Mannor shall with the Demesns as the more principal and worthy pass by Livery without Deed but all things regardant appendant or appurtenant to the Mannor as Incidents or Adjuncts to the same shall together with the Mannor pass without Deed without saying cum pertinentiis And if they pass by Livery which must be of the Land they must likewise pass by any lawful Entry made into the Land and such the Entry of the Occupant is But as by occupancy of the demesn Lands of a Mannor the Services are not sever'd so if they be sever'd at the time when the occupancy happens that shall never of it self unite them again Now in the Case before us The Tithe is neither appendant or appurtenant or any sort of Adjunct to the Glebe or House nor are they to the Tithe nor will a lease and livery of the Glebe simply with the appurtenances pass the Tithe at all nor a Grant of the Tithe pass the Glebe nor are either
of them constituent parts of the Prebendary or Rectory as the Services are of a Mannor for a total severance of the Services and Demesne destroy the Mannor but a severance of the Tithe or Glebe will not destroy the Rectory more than the severance of a Mannor parcel of the possessions of a Bishoprick will destroy the Bishoprick for the Glebe and the Tithe are but several possessions belonging to the Rectory But it is true that in the Case before us and like Cases a Grant of the Prebendary or of the Rectory una cum terra Glebali decimis de Woolney The Tithe which alone cannot pass without Deed doth pass by Livery of the Rectory Browlow part 2. f. 201. Rowles and Masons Case and so pass that though the Deed mentions the Tithe to be pass'd yet if Livery be not given which must be to pass the Land the Tithe will not pass by the Deed because the intention of the parties is not to pass them severally but una cum and together Therefore the Tithe in such Case must pass in time by the Livery which did not pass without it though granted by the Deed. Yet it is a Question Whether in such Case the Tithe passeth by the Livery or by the Deed For though the passing it by Deed is suspended by reason of the intention to pass the Land and Tithe together and not severally it follows not but that the Tithe passeth by the Deed where Livery is given though not until Livery given If a man be seis'd of a Tenement of Land and likewise of a Tithe and agrees to sell them both and without Deed gives Livery in the Tenement to the Bargainee in name of it and of the Tithe I conceive the Tithe doth not pass by that Livery But a Prebend or Church man cannot now by the Statute of 13 Eliz. cap. 10. make a Lease of the possessions of his Prebendary without Deed. 13 Eliz. c. 10. A Prebendary or Rectory is in truth neither the Glebe nor Tithe nor both for the one or the other may be recover'd and might at Common Law have been aliened the Rectory remaining But the Rectory is the Church Parochial whereof the Incumbent taketh the Cure and Seisin by his Induction after his Institution which is his Charge and without other Seisin then of the Ring or Key of the Church-door by Induction into the Rectory the Parson is seis'd of all the possessions belonging to his Rectory of what kind soever But though by the name of the Rectory the possessions belonging to it of what nature soever actually vest in the Incumbent upon Induction and may pass from the Prebendary by Livery of the Prebend or Rectory to his Lessee according to the parties intention Yet it follows not That therefore an Occupant who can be Occupant but of some natural and permanent thing as Land is should by being Occupant of that whereof occupancy may be have thereby some other thing heterogene to the nature of Land and not capable of occupancy as a Tithe is being neither appendant or appurtenant or necessary part of that whereof he is Occupant nor will it follow that because by giving Seisin of the Rectory the Tithe and Glebe belonging to it will pass that therefore giving Livery of the Glebe will pass the Tithe For it is observable That if a man be Tenant in tayl of a Mannor to which an Advowson is appendant or of a Tenement to which a Common is belonging and discontinue the Issue in tayl shall never have the Advowson or Common until he hath recontinued the Mannor or Tenement But if a man be seis'd in tayl of a Rectory consisting of Glebe and Tithe and discontinue it after the death of Tenant in tayl the Heir in tayl shall have the Tithe which lay in grant but must recover by Formedon the Rectory and Glebe This was agreed in this Court in a Case between Christopher Baker and Searl in Ejectment Cr. 37 El. f. 407. p. 19. Baker and Searls Case upon a Demise by the Earl of Bedford of the Rectory of D. de decimis inde provenientibus for Lives of three other persons and that Case seems to admit an occupancy of the Tithe the Question being concerning the Tithe only Quest 3 The next Question will be That if Taverner being Occupant of the House and Land shall not have the Tithe whereof Astly was in possession at the time of his death what shall become of this Tithe during the lives of the Cestuy que vies which is the hard question And as to this Question If a Rent be granted to A. for the life of B. and A. dies living B I conceive this Rent to be determined upon the death of A. equally as if granted to him for his own life I say determined because it is not properly extinguish'd nor is it suspended For Extinguishment of a Rent is properly when the Rent is absolutely conveyed to him who hath the Land out of which the Rent issues or the Land is convey'd to him to whom the Rent is granted And Suspension of a Rent is when either the Rent or Land are so convey'd not absolutely and finally but for a certain time after which the Rent will be again reviv'd The Reasons why it is determined are because a thing so granted as none can take by the Grant is a void Grant that is as if no such Grant had been Therefore a Grant to the Bishop of L. and his Successors when there is no Bishop in being at the time or to the Dean and Chapter of Pauls or to the Mayor and Commonalty of such a place when there is no Dean or Mayor living at the time of the Grant is a void Grant that is as if it had not been though such a Grant by way of Remainder may be good By the same Reason it follows That when any thing is so granted that upon some contingent hapning none can take by the Grant nor possibly have the thing granted both the Grant and thing granted must necessarily determine for what difference is there between saying that Rent can no longer be had when it is determined by his death for whose life it was granted and saying none can longer have this Rent when it determines by the death of the Grantee pur auter vie For there is no Assignee Occupant or any other can possibly have it and it is therefore determined In an Action of Trover and Conversion brought by Salter against Boteler Salter versus Boteler 44 El. Cr. 901. the Defendant justifies for that one Robert Bash was seis'd in Fee of Twenty Acres in Stansted and granted a Rent-charge to another Robert Bash his Executors and Assigns during the life of Frances the Grantees Wife of Sixteen pounds per Annum The Grantee dies and Frances his wife takes Letters of Administration and the Defendant as her Servant and by her command took a Distress in the said Twenty Acres for Rent
arrear and impounded them And Traverseth the Conversion and taking in other manner Vpon Demurrer to this Plea all the Court held the Plea to be bad and gave Iudgment for the Plaintiff 1. Because the Rent was determined by the death of the Grantee because no Occupant could be of it 2. Because the Feme was no Assignee by her taking of Administration 3. None can make title to a Rent to have it against the terr Tenant unless he be party to the Deed or make sufficient title under it Moore 664. p. 907. Salter vers Boteler The same Case is in Moore reported to be so adjudg'd because the Rent was determined by the death of the Grantee and Popham said That if a Rent be granted pur auter vie the Remainder over to another and the Grantee dies living Cestuy que vie the Remainder shall commence forthwith because the Rent for life determined by the death of the Grantee which last Case is good Law For the particular Estate in the Rent must determine when none could have it and when the particular Estate was determined the Remainder took place And as the Law is of a Rent so must it be of any thing which lies in Grant as a several Tithe doth whereof there can be no Occupant when it is granted pur auter vie and the Grantee dies in the life of Cestuy que vie 20 H. 6. f. 7 8. This is further cleared by a Case in 20 H. 6. A man purchas'd of an Abbot certain Land in Fee-farm rendring to the Abbot and his Successors Twenty pounds yearly Rent If all the Monks dye this Rent determined because there is none that can have it It lies not in Tenure and therefore cannot Escheat and though new Monks may be made it must be by a new Creation wholly In vacancy of a Parson or Vicar the Ordinary ex officio shall cite to pay the Tithes Fitz. N. Br. Consultation Lett. G. This Case agrees exactly with the Grant of a Rent or other thing which lies in Grant pur auter vie the Grantee dying the Rent determines though it were a good Grant and enjoyed at first yet when after none can have it it is determined So was the Rent to the Abbot and his Successors a good Rent and well enjoyed But when after all the Covent died so as none could have the Rent for the Body Politique was destroyed the Rent determined absolutely By this I hold it clear That if a man demise Land to another and his Heirs habendum pur auter vie or grant a Rent to a man and his Heirs pur auter vie though the Heir shall have this Land or Rent after the Grantees death yet he hath it not as a special Occupant as the common expression is for if so such Heir were an Occupant which he is not for a special Occupant must be an Occupant but he takes it as Heir not of a Fee but of a descendible Freehold and not by way of limitation as a Purchase to the Heir but by descent though some Opinions are that the Heir takes it by special limitation as when an Estate for life is made the Remainder to the right Heirs of J. S. the Heir takes it by special limitation if there be an Heir when the particular Estate ends But I see not how when Land or Rent is granted to a man and his Heirs pur auter vie the Heir should take by special limitation after the Grantees death when the whole Estate was so in the first Grantee that he might assign it to whom he pleas'd and so he who was intended to take by special limitation after the Grantees death should take nothing at all But to inherit as Heir a descendible Freehold when the Father or other Ancestor had not dispos'd it agrees with the ancient Law as appears by Bracton which obiter in Argument is denied in Walsinghams Case Si autem fiat donatio sic Bract. l. 2. de acquirendo rerum dominico c. 9. Ad vitam donatoris donatorio haeredibus suis si donatorius praemoriatur haeredes ei succedent tenendum ad vitam donatoris per Assisam mortis Antecessoris recuperabunt qui obiit ut de feodo Here it is evident That Land granted to a man and his Heirs for the life of the Grantor the Grantee dying in the life of the Grantor the Heirs of the Grantee were to succeed him and should recover by a Writ of Mordancester in case of Abatement which infallibly proves the Heir takes by descent who died seis'd as of a Fee but not died seis'd in Fee 1. Hence I conclude That if a man dye seis'd pur auter vie of a Rent a Tithe an Advowson in gross Common in gross or other thing whereof there can be no Occupancy either directly or by consequence as adjuncts of something else by the death of the Grantee in all these Cases the Grant is determined and the Interest stands as before any Grant made 2. If any man dye seis'd of Land pur auter vie as also of many of these things in gross pur auter vie by distinct Grant from the Land The Occupant of the Land shall have none of these things but they are in the same state and the Grants determine as if the Grantee had died seis'd of nothing whereof there could be any occupancy But I must remember you that in this last part of my Discourse where I said That if a Rent a Tithe a Common or Advowson in gross or the like lying in Grant were granted pur auter vie and the Grantee died living Cestuy que vie that these Grants were determin'd my meaning was and is where such Rent Tithe or other things are singly granted and not where they are granted together with Land or any other thing out of which Rent may issue with Reservation of a Rent out of the whole For although a Rent cannot issue out of things which lye in Grant as not distrainable in their nature yet being granted together with Land with reservation of a Rent though the Rent issue properly and only out of the Land and not out of those things lying in Grant as appears by Littleton yet those are part of the Consideration for payment of the Rent Cok. Litt. f. 142. a. 144. a. as well as the Land is In such case when the Rent remains still payable by the Occupant it is unreasonable that the Grant should determine as to the Tithe or as to any other thing lying in Grant which passed with the Land as part of the Consideration for which the Rent was payable and remain to the Lessor as before they were granted for so the Lessor gives a Consideration for paying a Rent which he enjoys and hath notwithstanding the Consideration given back again And this is the present Case being stript and singled from such things as intricate it That Doctor Mallory Prebend of the Prebendary of Woolney consisting of Glebe-land
a House Barns and Tithe of Woolney and thereof seis'd in the right of his Prebendary makes a Lease to Astly of the Prebend una cum the Glebe House Barn and Tithe for Three Lives rendring the accustomed and ancient Rent of Five pounds Twelve shillings Astly demiseth to Taverner the House Glebe and Barn for a year reserving Twenty shillings and dies the Cestuy que vies living As I concluded before Taverner is Occupant of the House Barn and Glebe-land and consequently lyable to pay the whole Rent being Five pounds twelve shillings yearly though the Land House and Barn be found of the yearly value of Twenty shillings only but because the Rent cannot issue out of Tithes or things that lye in Grant it issues only out of the House Barn and Land which may be distrain'd on 2. If Taverner being Occupant of the Land shall not have the Tithes which remain'd in Astly according to his Lease for three Lives at the time of his death and whereof by their nature there can be no direct Occupancy It follows that the Lease made by Doctor Mallory is determin'd as to the Tithe for no other can have them yet continues in force as to the Land and House and all the Rent reserv'd which seems strange the Land and Tithe being granted by the same Demise for three Lives which still continue yet the Lease to be determined as to part 3. Though the Rent issue not out of the Tithe yet the Tithe was as well a Consideration for the payment of the Rent as the Land and Houses were and it seems unreasonable that the Lessor Doctor Mallory should by act in Law have back the greatest Consideration granted for payment of the Rent which is the Tithe and yet have the Rent wholly out of the Land by act in Law too which cannot yield it 4. Though Doctor Mallory could not have reserv'd a Rent out of the Tithe only to bind his Successor upon a Lease for Lives more than out of a Fair though it were as the ancient Rent and had been usually answered for the Fair as is resolv'd in Jewel Bishop of Sarum's Case Jewell's Case 5 Rep. Yet in this Case where the Tithe together with Land out of which Rent could issue was demis'd for the accustomed Rent the Successor could never avoid the Lease either in the whole or as to the Tithe only 13 Eliz. c. 10. This seems clear by the Statute of 13 Eliz. cap. 10. which saith All Leases made by any Spiritual or Ecclesiastical persons having any Lands Tenements Tithes or Hereditaments parcel of the Possessions of any Spiritual Promotion other than for One and twenty years or three Lives whereupon the accustomed yearly Rent or more shall be reserv'd shall be void Cokes Litt. f. 142. a. f. 144. a. Whence it is apparent this Statute intended that Leases in some sense might be made of Tithes for One and twenty years or Three Lives and an ancient Rent reserv'd but of a bare Tithe only a Rent could not be reserv'd according to Jewell's Case for neither Distress nor Assise can be of such Rent though an Assise may be de Portione Decimarum as is clear by the Lord Dyer 7 E. 6. and the difference rightly stated Therefore a Lease of Tithe and Land out of which a Rent may issue and the accustomed Rent may be reserved must be good within the intention of the Statute or Tithe could in no sense be demis'd 5. Taverner the Lessee being Occupant here by his possession becomes subject to the payment of the Rent to Waste to Forfeiture Conditions and all things that Astly the Lessee or his Assignee if he had made any had been subject to Also Coke's Litt. 41. He must claim by a que Estate from Astly he must averr the Life of Cestuy que vie so as he becomes to all intents an Assignee in Law of the first Lessee 6. Without question the Occupant being chargeable with the Rent shall by Equity have the Tithe which was the principal Consideration for payment of the Rent when no man can have the benefit of the Tithe but the Lessor Doctor Mallory who gave it as a Consideration for the Rent which he must still have Therefore I conceive the Reason of Law here ought necessarily to follow the Reason of Equity and that the Occupant shall have the Tithe not as being immediate Occupant of the Tithe whereof no occupancy can be but when by his possession of the Land he becomes Occupant and the Law casts the Freehold upon him he likewise thereby becomes an Assignee in Law of Astly's Lease and Interest and consequently of the Tithe An ancient Rent reserv'd within the Statute of 1. or 13. of the Queen upon a Lease of One and twenty years or Three Lives is by express intention of that Statute a Rent for publique use and maintenance of Hospitality by Church-men as is resolv'd in Elsemere's Case Elsmers C. 5. Rep. the 5. Rep. and therefore if the Lessee provide not an Assignee to answer the Rent to the Successors of the Lessor for the ends of that Law the Law will do it for him and none fitter to be so than the Occupant in case of a Lease pur auter vie as this is And if the Occupant being Assignee hath pass'd all his Estate and Interest to the Plaintiff hath good cause of Action for the Tithe converted by the Defendant Pasch 22 Car. II. Judgment for the Defendant Three Justices against the Chief Justice Trin. 20 Car. II. C. B. Rot. 2043. Harrison versus Doctor Burwell In a Prohibition for his Marriage with Jane the Relict of Bartholomew Abbot his Great Uncle The Questions are Quest 1 WHether the marriage of Thomas Harrison the Plaintiff with Jane his now wife being the Relict of Bartholomew Abbot his great Vncle that is his Grand-fathers Brother by the Mothers side be a lawful marriage within the Act of 32 H. 8. cap. 38 Quest 2 Admitting it to be a lawful marriage within the meaning of that Act Whether the Kings Temporal Courts are properly Judges of it because the unlawfulness or lawfulness of it by that Act doth depend upon its being a marriage within or without the Levitical Degrees For if within those Degrees it is not a lawful marriage by that Act. And the right knowledge of marriages within or without those Degrees must arise from the right knowledge ot the Scriptures of the Old Testament specially the Interpretation of which hath been and regularly is of Ecclesiastick Conizance and not of Lay or Temporal Conizance in regard of the Language wherein it was writ and the receiv'd Interpretations concerning it in all succession of time Quest 3 Admitting the Kings Temporal Courts have by that Act of 32. or any other special Conizance of the Levitical Degrees and of marriages within them And though this be no marriage within the Levitical Degrees it being articled in general to be an Incestuous marriage
not the Land devis'd to him when the son and the two daughters dye without Issue of their respective bodies by way of Remainder which cannot be but by way of Executory devise which well may be 5. That by such Executory devise no perpetuity is consequent to it or if it were such a perpetuity is no way repugnant or contrary to Law To manifest the difference taken between an implication in a Will that is necessary and implication that is only possible the first Case I shall cite is that known Case 13 H. 7. which I shall exactly put as it is in the Book at large 13 H. 7. f. 17. Br. Devise pl. 52. A man devis'd his Goods to his wife and that after the decease of his wife his son and heir shall have the House where his Goods are The son shall not have the House during the wives life for though it be not expresly devis'd to the wife yet his intent appears the son shall not have it during her life and therefore it is a good devise to the wife for life by implication and the Devisors intent Quod omnes Justitiarii concesserunt Here I observe 1. That this was a devise of the House to the wife by necessary implication for it appears by the Will that the Testators son and heir was not to have it until after the death of the wife and then it must either be devis'd to the wife for life by necessary implication or none was to have it during the wives life which could not be 2. I observe upon this Case That though the Goods were by particular devise given to the wife and expresly that was no hindrance to the wives having the House devis'd to her also by her husband by implication necessary which I the rather note because men of great name have conceiv'd That where the devisee takes any thing by express devise of the Testator such devisee shall not have any other thing by that Will devis'd only by implication Which difference if it were according to Law it makes clearly against the Plaintiff because his Lessor being one of the Daughters of the Testator had devis'd to her expresly for a Portion and therefore she should not have any Estate in the Land by the same Will by a Devise by Implication as is pretended But the truth is that is a vain difference that hath been taken by many as I shall anon evince and therefore I shall not insist upon any Aid from it to my conclusion 3. I note that this Devise being before the Statute of 32 H. 8. of Wills the House devis'd must be conceiv'd devisable by Custome at the Common Law Before I proceed further I must take notice that Brook in abridging the Case of 13 H. 7. in the same numero saith Devise Br. n. 52. It was agreed tempore H. 8. per omnes That if a man will that J. S. shall have his Land in Dale after the death of his wife the wife shall have the House for her life by his apparent intent I note first That this Case is imperfectly put in Brook for it mentions a devise of the Land in Dale to J. S. after the death of his wife and then concludes that the wife shall have the House for her life by his apparent intent whereas no mention is made of a House but of the Land in Dale in the devise And this Case seems to be only a memory of another Case Br. Devise 29 H. 8. n. 48. not abridg'd by Brook out of any other Year-book but reported in his Abridgment in the Title Devise as a Case happened in 29 H. 8. which is That if a man will that J. S. shall have his Land after the death of his wife and dies the wife of the Devisor shall have those Lands for term of her life by those words ratione intentionis voluntatis Which Cases being in truth but one and the same Case seem to go further than the Case of 13 H. 7. for there as I observ'd before the wife was to take by necessary implication because the Heir was excluded expresly by the Will during the life of the wife But by this Case in Br. Title Devise n. 48. 52. there is no excluding of the Heir and yet it is said the wife shall have the Land during her life by implication which is no necessary implication as in the Case of 13 H. 7. but only a possible implication and seems to cross that difference I have taken before But this Case of Br. hath many times been denied to be Law and several Iudgments have been given against it I shall give you some of them to justifie the difference I have taken exactly as I shall press the Cases Trinity 3 E. 6. A man seis'd of a Mannor part in Demesne 3 E. 6. Moore Rep. f. 7. n. 24. and part in Services devis'd all the demesne Lands expresly to his wife during her life and devis'd to her also all the Services and chief Rents for Fifteen years and then devis'd the whole Mannor to a stranger after the death of his wife It was resolved by all the Justices That the last devise should not take effect for any part of the Mannor but after the wives death but yet the wife should not have the whole Mannor by implication during her life but should have only the demesnes for her life and the Rent and Services for Fifteen years and that after the Fifteen years ended the Heir should have the Rents and Services as long as the wife liv'd Here being no necessary Implication that the wife should have all the Mannor during her life with an exclusion of the Heir she had no more than was explicity given her by the Will viz. the Demesnes for life and the Rents and Services for Fifteen years but after the Fifteen years the Heir had the Rents and Services for it could be no more at most but a possible Implication that the wife should have the whole Mannor during her life But with a small variance of this Case if the demesnes had been devis'd to the wife for life and the Services and Rents for Fifteen years and the whole Mannor after the wives life to J. S. and that after the wives life and the life of J. S. his Heir should have had the Demesnes and Services and Rents in that Case it had been exactly the same with the Case of 13 H. 7. because the Devisors intent had been then apparent that the Son was not to have the Mannor or any part until the wife and stranger were both dead and as it was adjudg'd the stranger had nothing in the Mannor until the wifes death therefore in that case by necessary implication the wife must have had both Demesnes and Services during her life notwithstanding the explicit devise to her of the Rents and Services for Fifteen years otherwise none should have had the Rents and Services after the Fifteen years
ratione be tryed in the County next adjoyning whereof there is no Vestigium for the one or the other nor sorts it any way with the rule of the Law 2. This Ordinance of Parliament extended not to all Wales but only to the Lordships Marchers there nor any way comprehended the ancient Shires of Wales or Body of the Principality to which the Ordinance of the Statute of Rutland only extended For Lordships Marchers were out of the Shires as appears by Statute 27 H. 8. 3. It appears by the Case that Gower was not within any County at that time Another Case to the same purpose is in Fitz herbert Fitz. Jurisdiction 13 E. 3. pl. 23. Title Jurisdiction and not in any other Reports 13 E. 3. in a Writ of Cosenage the Demand was of Castle of K. and Commot of J. the Defendant pleaded the Castle and Commot were in Wales where the King 's Writ runs not and it was said that the word was not intelligible in the Courts of England and Judgment was prayed if the Court would take Conizance To give the Court Jurisdiction it was urged pressingly 1. That they had given the Court Jurisdiction by alledging the Court knew not what was meant by Commot which the Court was to determine whether it did or not Therefore Jurisdiction was admitted therein 2. Parning pressed they had demanded the view which gave the Court Jurisdiction 3. For that the Original was directed to the Sheriff of Hereford who by his Retorn had testified the Summons and the Tenant had appeared and so affirmed the Summons 4. For that the view was had Notwithstanding all which to give the Court Jurisdiction it was said to Parning He must say more before the Court would have Jurisdiction Which evidently proves that the Court had no Jurisdiction generally of Land in Wales as I observed from the former Case And no act of the party gives Jurisdiction to the Court by elapsing his time to plead to the Jurisdiction if it appear by the Record the Court hath no Jurisdiction as in this Case it did Then Woodstock said Though the Castle and Commot were in Wales the Court ought not to be outed of Jurisdiction for by Commot a great Signiory was demanded consisting of Lands Rents and Services and that the Castle and Commot were held in Capite of the King as of his Crown and said those so held were to be impleaded here and not elsewhere 7 H. 6. f. 36. b. so is 7 H. 6. f. 36. b. And said the King by his Charter had granted the Castle and Commot to the Tenant in tayl and thereupon pray'd aid of the King and it was granted hereupon But before this was shew'd and that it was a great Signiory and held of the King in Capite by which it was no part of the Principality nor held under it the Court would own no Jurisdiction but when that appeared the Case was the same with the former in 18 E. 2. and the Defendant had no remedy but in the Kings Courts This Case was cited by Sir Edward Coke in the Case before cited 11 Jacobi concerning the Sheriff of Radnor but the difference not observ'd of its being a Lordship in Wales held immediately of the King in Capite nor that the Court owned no Jurisdictions generally concerning Lands in Wales by the Summons and view of the next adjoyning Sheriff William de Cosington and Elizabeth his Wife brought a Writ of Dower of the third part of the Land in Gower against the Earl of Warwick as Tenant and the Writ was Quod reddat ei rationabilem dotem de libero tenemento quod fuit Jo. Moubray quondam viri sui in terra de Gowre in Wallia It appears not in the Case to what Sheriff the Writ was directed though this Case be in the Book at large but it appears that those of the Chancery and the Judges of the Kings Bench had been consulted with concerning the Writ in bringing it for Dower in terra de Gower in Wallia therefore it must issue from the High Court of Chancery and must be directed consequently to the Sheriff of Glocester as the Assise was in 18 E. 2. Br. abridging this Case saith The Action was against the Earl of Warwick as being Lord of the intire Signiory of Gower and then he was to be impleaded by Writ out of the Chancery here equally and upon the same reason for a third part of the Signiory as for the whole according to the Case of 18 E. 2. first cited for the Lord could no more make a Precipe to summon himself to his own Minister or to make Execution against himself for a third part of the Royalty than for the whole And therefore the Ordinance of Parliament then mentioned equally extended to this Case as to that of 18 E. 2. This is not strange that Acts of Parliament are lost sometimes Note the Act of 3 E. 1. by which old Customes were granted not extant but clear proofs of it remain These three last Cases therefore wherein the Tenants were impleaded in the Courts here for Land in Wales and Summons and Execution made by the Sheriff of the next adjoyning County are well warranted by an Act of Parliament not extant being for either the Lordships Marchers themselves or some part of them and against the Lord himself as that Case of 18 E. 2. expresly resolves All these were real Actions The first an Assise of Novel Disseisin the second a Writ of Cosenage the third a Writ of Dower The like Case is cited 19 H. 6. 19 H. 6. f. 12. A. That when the Mannor of Abergavenny was demanded the Writ was directed to the Sheriff of Hereford as Newton urged for this was a Lordship Marcher and held of the King in Capite as appears by Moore 's Reports in Cornwals Case in that the Barony of Abergavenny was held by the Lord Hastings of the King in Capite to defend it at his charge ad utilitatem Domini Regis Exactly agreeing with this Doctrine is the Book of 21 H. 7. f. 33. b. if a Signiory in Wales be to be tryed 21 H. 7. f. 33. B. it shall be tryed here by the Course of the Common Law but if Lands be held of a Signiory in Wales it shall be tryed within the Mannor and not elsewhere As for that expression by the Course of the Common Law 19 H. 6. f. 12. A. it is also in the Book 19 H. 6. that Deeds and all other things alledged in Wales shall be tryed in the adjoyning Countries at the Common Law otherwise there would be a failer of Right And of this opinion seemed most of the Iustices arguendo obiter the Case before them not concerning Wales but the County Palatine of Lancaster Of Churches in Wales a Quare Impedit shall be brought in England yet the Land and other things in Wales 30 H. 6. f. 6. B. shall be determined before the Stewards of
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
usually letten Lands which have been twice letten are within this proviso 33 2. Of Lands which have at any time before been usually letten that which was not in Lease at the time of the proviso nor twenty years before is out of the power 34 Possession 1. He that is out of possession if he brings his Action must make a good Title 8 2. Where one man would recover any thing from another it is not sufficient to destroy the Title of him in possession but you must prove your own to be better than his 58 60 3. When a man hath gotten the possession of Land that was void of a Proprietor the Law casts the Freehold upon him to make a sufficient Tenant to the Precipe 191 4. Prior possession is a good Title against him who hath no Title at all 299 5. A separate possession of one and the same Land can never be in two persons at one and the same time 42 47 6. By a Fine the Estate may be changed although the possession is not changed 42 43 7. The Conuzee of a Rent granted by Fine to Uses cannot have any actual Seisin nor be in possession since the 27 H. 8. 49 Quare Impedit 1. WHere in a Quare Impedit the Plaintiff and Defendant are both actors 6 7 8 58 2. The Plaintiff in his Count must alledge a presentation in himself or in those from whom he claims 7 8 17 57 3. So likewise must the Defendant because they are both Actors 7 8 57 60 4. The Plaintiff must recover by his own strength and not by the Defendants weakness 8 58 60 5. Where the King or a common person in a Quare Impedit sets forth a Title which is no more than a bare Suggestion he shall not then forsake his own and endeavour to destroy the Defendants Title 61 6. In all Quare Impedits the Defendants may traverse the presentation alledged by the Plaintiff if the matter of Fact will bear it 16 17 7. But the Defendant must not deny the presentation alledged where there was a presentation 17 8. Where the Presentation and not the Seisin in gross of the Advowson or Appendancy is traversable 10 11 12 13 9. When the Seisin in gross or appendancy is traversable 12 10. An Incumbent is elected Bishop and before Consecration he obtains a Dispensation in Commendam Retinere he is afterwards consecrated and dyes the Patron shall present and not the King 18 19 20 21 22 23 24 25 26 27 11. If a man who hath a Benefice with Cure accepts of another without Dispensation or Qualification the first Benefice is void and the Patron may present and his Clerk who is admitted instituted and inducted may bring his Action of Trespass or Ejectment 129 130 131 12. All Quare Impedits for disturbance to Churches within the Lordships Marchers of Wales shall be brought in England in the next adjoyning County 409 410 13. Judgment with a Cessat Executio upon the Bishops Disclaimer 6 14. Where the Parson Patron and Ordinary are sued in a Quare Impedit and the Ordinary disclaims and the Parson looseth by default the Plaintiff shall have Judgment to recover his presentation and a Writ to the Bishop to remove him with a Cessat Executio until the plea is determined between the Plaintiff and Patron ibid. Rebutter See Title Warranty 1. WWO may Rebut 384 2. The difference between a Rebutter and Voucher 385 386 387 3. Whether the Tenant in possession may Rebut without shewing how he came to the possession 385 4. Whether a Rebutter may be when the warranty is determined 387 5. How many several sorts of persons may Rebut and how those that come in ex institutione dispositione legis may Rebut 390 391 392 Recital 1. The Recital of one Lease in another is not a sufficient proof that there was such a Lease as is recited 74 75 Recognizance See Title Statutes 8. 1. The Chancery and all the Courts at Westminster had before the Statute of Acton Burnel and still have power to take Recognizances 102 2. So likewise may every Judge take a Recognizance in any part of England as well out of Term as in Term 103 3. Where a Recognizance taken before the Chief Justice of the Common Pleas is in the nature of a Statute Staple 102 4. Execution upon such Recognizances are not as upon Statutes but by Elegit ibid. Record 1. How a Record is to be pleaded 92 Recovery and Common Recovery See Title Statutes 13. See Voucher Warranty 1. Where a Recovery against its nature shall be a Forfeiture because it is taken as a common Conveyance 51 2. A Rent may arise out of the Estate of Cestuy que use upon a Recovery which was to have risen out of the Estate of the Recoverer 51 Release 1. Joyntenants may release and confirm to each other 45 Remainder See Title Warranty 1. A Remainder must depend upon some particular Estate and be created at the same time with the particular Estate 269 2. A Remainder cannot depend upon an absolute Fee simple 269 367 3. If Land is devised to A. and his Heirs as long as B. hath Heirs of his body the Remainder over this is good in a Devise not as a Remainder but as an Executory Devise 270 4. A Remainder in Fee upon a Lease for years 46 5. The Statute de Donis restrains not the warranty of Tenant in Tayl from barring him in the Remainder in Tayl by his warranty descending upon him 367 377 Rent 1. By the Common Law there ought to be an Attornment to enable the Distrainor to make a good Avowry upon a Distress for Rent 39 2. Where a Rent is well vested and there is an Attornment when ever the Rent is arrear a Distress is lawful unless the power is lost ibid. 3. An Estate in a Rent-charge may be enlarged diminished or altered and no new Attornment or privity requisite 44 45 46 4. The power to distrain may be lost by a perpetual Union Suspension pro tempore Dying without Heir Granting of it upon Condition and by a granting over 39 5. The several things that a Rent is subject to 40 6. Rent is granted pur auter vie the Grantee dies the Rent is thereby determined 200 201 7. Where Rent is arrear and afterwards it is granted over in Fee and an Attornment thereupon here the Grantor hath lost his arrears and cannot afterwards distrain 40 8. A Rent may arise out of the Estate of Cestuy que use upon a Recovery 52 9. There can be no Occupancy of a Rent 200 Reversion See Title Warranty 1. By the grant of a Reversion Lands in possession will not pass but by the grant of Lands a Reversion will pass 83 2. If Tenant for life alien with warranty which descends upon the Reversioner such alienation with warranty is not restrained by the Statute de Donis 370 3. An alienation with warranty which shall hinder the Land from reverting to the Donor or his
to the King to license as he thought fit 355 2. The intent of the Act being That every man should not sell Wine that would his Majesty could not better answer the ends of the Act than to restrain the sellers to Freemen of London to the Corporation of Vintners men bred up in that Trade and serving Apprenticeships to it ibid. 13 El. c. 12 Not reading the Articles 1. Immediately upon not reading the Articles the Incumbent is by this Statute deprived ipso facto 132 2. Upon such Deprivation the Patron may present Ante 14. and his Clerk ought to be admitted and instituted but if he do not no Lapse incurrs until after Six months after notice of such Deprivation given to the Patron 132 3. Where the Incumbent subscribes the Articles upon his Admission and Institution that makes him perfect Incumbent pro tempore 133 4. But if he hath a Benefice and afterwards accepts another and doth not subscribe nor read the Articles then he never was Incumbent of the second and consequently never accepted a second Benefice to disable him from holding the first 132 133 134 1. That all Leases by Spiritual persons of Tythe c. 13 Eliz. cap. 10. Concerning Leases to be made by Ecclesiastical persons parcel of their Spiritual Promotions other than for One and twenty years or three Lives reserving the accustomed yearly Rent shall be void 2. This Statute intended that Leases in some sense might be made of Tithes for One and twenty years or three Lives and an ancient Rent Reserved but of a bare Tythe only a Rent could not be reserved for neither Distress nor Assise can be of such a Rent 203 204 3. Therefore a Lease of Tythe and Land out of which a Rent may issue and the accustomed Rent may be reserved must be good within the intent of the Statute 204 7 Jac. cap. 5.21 Jac. cap. 12. For Officers to be sued in the proper County 1. The question upon these Acts was Whether an Officer or any in their assistance that shall do any thing by colour of but not concerning their Office and be therefore impleaded shall have the benefit of these Acts. 2. Or if they are impleaded for any thing done by pretence of their Offices and which is not strictly done by reason of their Office but is a mis-seazante Whether they may have the like benefit 3. Without this Act the Action ought to be laid where the Fact was done and the Act is but to compel the doing of that where an Officer is concerned that otherwise Fieri debuit 114 4. The Statute intends like benefit to all the Defendants where the Fact is not proved to be done where the Action is laid as if the Plaintiff became Non-suit or suffered a Discontinuance viz. that they should have double costs 117 12 Car. 2. cap. 4. For granting Tonnage and Poundage to the King 1. Those Wines which are to pay this Duty according to the Act must be Wines brought into Port as Merchandise by his Majesties Subjects or Strangers 165 2. But Wines which are by their kind to pay Duty if they shall be brought into Ports or Places of this Kingdom neither by his Majesties Subjects nor Aliens they are not chargeable with this Duty ibid. 3. If they are not brought into the Ports and Places as Merchandize viz. for Sale they are not chargeable with the Duty 165 170 4. Wines coming into this Kingdom as Wreck are neither brought into this Kingdom by his Majesties Subjects nor Strangers but by the Wind and Sea 166 5. Wreck'd Goods are not brought into this Kingdom for Merchandise viz. for Sale but are as all other the Native Goods of the Kingdom for sale or other use at the pleasure of the owner ibid. 6. All Goods chargeable with the Duties of this Act must be proprieted by a natural born Merchant or Merchant Alien and accordingly the greater and lesser Duty is to be paid 166 168 7. All Goods subject to this Duty may be forfeited by the disobedience and mis-behaviour of the Merchant-proprietor or those entrusted by him 167 1. The intent of this Statute is to priviledge the Father against common Right 12 Car. 2 cap. 24. To enable the Father to devise the Guardianship of his Son to appoint the Guardian of his Heir and the time of his Wardship under One and twenty 179 2. Such a special Guardian cannot transfer the custody by Deed or Will to any other 179 3. He hath no different Estate from a Guardian in Soccage but for the time the of Wardship 179 4. The Father cannot by this Act give the custody to a Papist 180 5. If the Father doth not appoint for how long time under One and twenty years his Son shall be in Ward it is void for Uncertainty 185 6. The substance of the Statute and sense thereof is That whereas all Tenures are now Soccage and the Law appoints a Gardian till Fourteen yet the Father may nominate the Gardian to his Heir and for any time until his Age of One and twenty and such Gardian shall have like remedy for the Ward as Gardian in Soccage at the Common Law 183 Supersedeas 1. If a priviledged person as an Attorney c. or his Menial Servant is sued in any Jurisdiction forreign to his priviledge he may have a Supersedeas 155 Surplusage 1. Surplusage in a special Verdict 78 Suspension 1. A Suspension of Rent is when either the Rent or Land are so conveyed not absolutely and finally but for a certain time after which the Rent will be again revived 199 2. A Rent may be suspended by Unity for a time and afterwards restored 39 Tayl See Title Warranty 1. SEE an Exposition upon the the Statute de Donis 370 371 372 c. 2. What shall be a good Estate Tayl by Implication in a Devise 262 3. A. having Issue Thomas and Mary deviseth to Thomas and his Heirs for ever and for want of Heirs of Thomas to Mary and her Heirs This is an Estate Tayl in Thomas 269 270 4. A Copyholder in Fee surrenders to the use of F. his Son and J. the Son of F. and of the longest liver of them and for want of Issue of J. lawfully begotten the Remainder to M. here it being by Deed J. had only an Estate for Life but had it been by Will it had been an Estate Tayl by Implication 261 5. The Warranty of the Tenant in Tayl descending upon the Donor or his Heirs is no barr in a Formedon in the Reverter brought by them although it be a Collateral Warranty 364 365 6. The lineal Warranty of Tenant in Tayl shall not bind the Right of the Estate Tayl by the Statute de Donis neither with or without Assets descending 365 Tenures See Title Estates  Testament See Devise 1. A Custody as a Gardianship in Soccage is not in its nature Testamentary it cannot pay Debts nor Legacies nor be distributed as Alms 182 Title 1. When you would