taken in Execution 1 Cro. 239. Hob. 180. Rol. Rep. 233. 2. The Promise here was not to pay the Mony absolutely but sub modo so that the Evidence did not maintain the Action and the Plaintiff was Nonsuited Nichols versus Ramsel Release of all Demands usque 26 Apr. a Bond dated that day is not released TRespass done 24 Martii 26 Car. 2. usque 26 Augusti 28 Car. 2. diversis diebus vicibus c. The Defendant pleaded that on the 24th day of April in the 26th year of King Charles the Second he paid the Plaintiff 6 d. which he received in full satisfaction of all Trespasses usque ad the said 24th day of April absque hoc that he was guilty ad aliquod aliud tempus praeter praedictum 24 Aprilis anno 26 Car. 2. aut aliquo tempore postea but leaveth out the 24th day of April and for that Reason the Plaintiff demurred because the Defendant had not answered that day for the Word usque excludes it So where Debt was brought upon a Bond dated 9 Julii the Defendant pleaded a Release of all Actions Owen ' 50. 2 Rol. Abr. 521. c. the same day usque diem dati ejusdem scripti the Bond was not discharged because the Release excludes the 9th day on which it was made But Serjeant Weston contra Though generally in pleading the Word usque is exclusive yet in the Case of Contracts because of the intent of the Parties 't is inclusive and therefore in one Nichol's Case 20 Car. 2. in B. R. Rot. 21. the Term was not named a Lease was made Habendum from Lady-day usque Festum Sancti Michaelis 1665. paying the Rent reserved at Michaelmas during the Term the Rent shall be paid on Michaelmas-day 1665. and so the day shall not be excluded So where a Man prescribes to put Cattle from and immediately after Lady-day where they are to stay till Michaelmas-day the putting them in on Lady-day and driving them away on Michaelmas-day is not justifiable in strictness yet it hath been allowed good So in a Devise the Question was whether the Testator was of Age or not and the Evidence was that he was born the first day of January in the Afternoon of that day and died in the Morning on the last day of December And it was held by all the Iudges that he was of full Age for there shall be no fraction of a day North Chief Iustice said that prima facie this is to be intended good for a day is but Punctum temporis and so of no great consideration But the other three Iustices were of Opinion that the Word Usque was exclusive and that the Plaintiff should not be put to shew that there was a Trespass done on the 24th of April and said that in a Release of all Demands till the 26th of April a Bond dated that day is not released wherefore Iudgment was given for the Plaintiff Trevil versus Ingram COvenant to pay an Herriot post mortem J. S. or 40 s. at the election of the Plaintiff Release of all Demands doth not barr a future Duty Mod. Rep. 216. and sets forth the death of J. S. and that afterwards he chose to have the 40 s. for which he brought this Action and assigns the Breach for Non payment The Defendant pleaded that the Plaintiff released to him all Actions and Demands c. But this Release was made in the Life time of J. S. and there was an Exception in it of Herriots The Plaintiff demurred and Serjeant George Strode argued that this Action was not discharged by that Release and cited Hoes Case 5 Co 70. where it was held that a Duty incertain at first which upon a Condition precedent was to be made certain afterwards was but a possibility which could not be released that the Duty in this Case was incertain because the Plaintiff could not make his Election till after the death of J. S. A Covenant to repair 2 Cro. 170. Roll. Abr. 407. But a Release of all Covenants in such an Indenture had been a Barr 5 Co. 71. a. and a Release pleaded to it within thrée days after the date of the Indenture And upon a Demurrer it was held that it being a future Covenant and not in demand at the time of the Release although it was of all Demands yet that Covenant was not thereby released So here neither the Herriot nor the 40 s. were either of them in demand at the time of the Release given and it plainly appears by the Exception in the Release that it was the intention of the Parties not to release the Herriots 2 Cro. 623. and of that Opinion was the whole Court whereupon Iudgment was given for the Plaintiff North Chief Iustice It is the Opinion of * Sect. 508 510. 2 Roll. Abr. 408. Sid. 141. Littleton That a Release of all Demands doth Release a Rent And of that Opinion was Iustice Twisden in the Argument of Hen and Hanson 's Case though it was resolved there that a Release of all Demands did not discharge a Rent reserved upon a Lease for years because such Rent is executory and incident to the Reversion 2 Cro. 486. and grows every year out of the Land but when it is severed from the Reversion as by assigning over the whole Term then it becomes a Sum in gross and is due upon the Contract and in that Case a Release of all Demands discharges a Rent afterwards due DE Term. Sancti Hill Annis 29 30 Car. II. in Communi Banco Shambrok versus Fettiplace PRohibition Prescription to have an Isle in a Church because of repairing no good cause for a Prohibition Hob. 69. The Question was whether a Prescription be good to an Isle in a Church which he and all those c. used to repair as belonging to a Mannor where he had no Dwelling House but only Land and Serjeant Geo. Croke argued that it was good and cited the Case of Boothby and Bayly where such a Prescription as this was held to be a good ground for a Prohibition Vide Moor Rep. 878. contra The Court inclined that it was not good but ordered the Prohibition to go and the Defendant to plead that it might come Iudicially before them to be argued Dashwood versus Cooper alios in Cammera Scaccarii ERror of a Iudgment in Trespass In a Negative Plea viz. That three did not such a thing it must be said nec eorum aliquis wherein Cooper and others brought an Action of Trespass against Dashwood for entring into a Brew-house and keeping of possession and taking away of 50 s. The Defendant pleaded That the Plaintiffs had committed an Offence against the Statute of 12 Car. 2. cap. 23. by which it is Enacted That all Offences thereby prohibited except in London shall be heard by two or more of the next Justices of Peace and in case of their neglect or refusal by
Heirs and Assigns that he and they from time to time during the said Lease should have liberty and full power to Fell the said Trees and root them up repairing the Hedges where they did grow That the said Martin granted some of the Trees to the Defendant by virtue whereof he and the rest of his Servants did cut them down which is the same breaking of the Close of which the Plaintiff complains To which Plea Mr. Pollexfen did demurr for the Insufficiency because the Defendant did not shew that upon cutting down the Trees he did repair the Hedges as by the Agreement ought to have been done for this being a limited and qualified power ought to be set forth at large and that it was a power only annexed to the Reversion and not assignable to any one else and so the Defendant hath wholly failed in his Plea he might have justified under Martin but not in any of their own Rights But the Court were of Opinion That an Action doth lie in this Case both against the Lessor and his Assignee acting under his Power and they agreed that a bare power was not assignable but where 't is coupled with an Interest it may be assigned and here was an Interest annexed to the power for the Lessor might sever the Trees from the Reversion Whereupon Iudgment was given for the Defendant Scoble versus Skelton Presciption must be alledged with a Seisin in Fee THE Plaintiff declared That he was seised of a Tenement called East and the Defendant of another Tenement called West Travallock and that he and all those whose Estate he had did use to fetch Pot Water from the Defendants Close c. Issue was taken upon this Prescription and a Verdict for the Plaintiff and Mr. Pollexfen moved in Arrest of Iudgment That the Declaration did set forth generally that he was seised and it did not appear it was in Fee for if it be for Life only then the Action doth not lie because a Prescription cannot be annexed to an Estate for Life Tremain insisted that the Declaration was sufficient and certain enough for when the Plaintiff doth alledge that he was seised generally it shall be intended a seisin in Fee especially after Verdict But the Court held the Declaration to be defective in Substance because a Prescription cannot be annexed to any thing but an Estate in Fee and therefore 't is not helped after Verdict The Iudgment was reversed Putt versus Roster A Recovery in Trespass good Plea in bar to an Action of Trover TRespass for taking of his Cattle The Defendant justifies for a Herriot and upon a Demurrer had Iudgment The Plaintiff did afterwards bring an Action of Trover and Conversion for the same Cattle and the Defendant pleaded the former Iudgment in Trespass in barr to this Action of Trover and the Plaintiff demurred Serjeant Maynard argued That the Plea was not good because Trespass and Trover are distinct Actions and one may be where the other is not as if an Infant give Goods to one an Action of Trover doth lie to recover them but Trespass will not So if Goods be delivered to another and he refuse to deliver them upon demand Trover but not Trespass will lie and therefore these being different Actions a Recovery in one shall be no barr to the other A Formedon brought in the Descender and Iudgment thereon is not pleadable in barr to a Formedon in Remainder There is a great difference between a barr to the Action 5 Co. 33.6 Co. 37. a. Cro. El. 667. Eo Entr. 38. b. 2 Cro. 15. pl. 20. Antea and to the Right as where an Administrator sues not knowing that he was made Executor and Iudgment against him and he afterwards proved the Will and brought an Action as Executor the former Iudgment had against him as Administrator shall not be a barr to this new Action because 't is not a barr to the Right for by misconceiving his Action the former abated But Mr. Holt argued That these were Actions of the same nature and therfore a Iudgment in one was a good Plea in barr to the other Trespass or Trover lies for taking or carrying away the Goods of another and when he hath made his Election which to bring a Recovery there shall be a perpetual barr to the other In an Appeal of Mayhem 4 Co. 39. the Defendant pleaded a former Recovery in an Action of Assault and Battery and held good though one is of a higher nature than the other But the Court were of Opinion Curia Rose and Standen Antea That an Action of Trover doth lie where a Trespass doth not and if the Plaintiff hath mistaken his Action that shall be no barr to him As to the Case put of the Mayhem Rozal and Lampen Antea that doth not agree with this because there can be no Mayhem without an Assault but there may by a Trover without a Trespass and though the Appeal of Mayhem be of a higher nature than the Assault because it doth suppose quod felonice Mayhemiavit yet the Plaintiff can only recover damages in both If a Man bring Trespass for the taking of a Horse and is barred in that Action yet if he can get the Horse in his possession the Defendant in the Trespass can have no Remedy because notwithstanding such Recovery the Property is still in the Plaintiff The Defendant in this Case hath justified the taking of the Cattle for a Herriot and by the Demurrer the justification is confessed to be true in fact now by the taking for a Herriot the property of the Goods was altered and wherever the Property is determined in Trespass an Action of Trover will never lie for the same but 't is a good Plea in barr and so it was adjudged here James versus Trollop Prescription for a Modus good ERror of a Iudgment in the Common-Pleas on an Action upon a Prohibition where the Plaintiff did suggest That William late Prior of Norbury in Staffordshire was seised of the said Mannor and of the Tythes thereof simul semel as of a portion of Tythes c. That the said Prior 25 H. 1. granted the said Mannor and Tythes to William Fitzherbert and his Heirs rendring Rent That the said Fitzherbert did Enter and was seised and held it discharged of Tythes that his Heirs afterwards granted two Hides of Land part of the said Mannor to S. with the Tythes at 5 s. Rent and so draws down a Title by Descent for 300 years to F. who being seised devised the same to Dorothy James under whom the Plaintiff in the Prohibition claimed and then concludes That Fitzherbert and all those whose Estate c. did pay the said Rent to the said Prior which since the Dissolution was paid to the King and his Assigns in discharge of all Tythes c. The Defendant having craved Oyer of the Deed demurred to the Suggestion and Iudgment was given for the Plaintiff
Case there are general Words and the same as in * 10 Co. 63. Postea Atturney General against Turner Whistler's Case yet this differs from that for here 't is granted adeo plene as the Abbot had it by those Words it doth not pass for then it was appendant but now it is in gross and if the King intended to pass an Advowson as appendant when 't is in gross the Grant is void Hob. 303. In Whistler's Case there are the Words Adeo plene as in this and the Advowson was appendant still but yet there are general Words here that will pass it Adeo plene as the Archbishop had it will not serve because he never had it neither will Adeo plene as the Abbot had it pass this Advowson because he had it in gross but Adeo plene as the King had it by any ways or means whatsoever those general Words are sufficient to pass it The King grants the Mannor and the Advowson of the Church of Laburn which is certain and by particular Name part of what follows as spectan ' to the Archbishop is false for it never belonged to him because it was excepted in the Grant of the Mannor to him but the first discription being full and certain the falsity of the other shall not avoid the Grant especially when the King is not deceived in his Title nor in the Value and when there is a certainty of the thing granted Some false suggestions may make his Grant void as if he grant the Mannor of D. reciting that it came to him by Attainder when it came by Purchase Hob. 229. Lane 11. But if the mis-recital concerns not the Kings Title or Profit it doth not vitiate the Grant 10 H. 2. 4. Sir John Lestrange's Case where the King by Office found had the Wardship of a Mannor and makes a Grant thereof reciting Quod quidem Manerium in manus nostras seisit̄ c. which was not true yet the Grant was held good because it was only to make that certain which was certain enough before by a particular description So in Legat's Case 10 Co. 113. wherein is cited the Case of the Earl of Rutland and Markham to whom the Queén had granted the Office of Parkership c. quod quidem Officium the late Earl of Rutland habuit when in truth the Earl never had it before yet the Grant was held good So also if he grants for and in consideration of Service done or Mony paid if false it avoids not the Grant because such Considerations when past are not material whether they are true or false Cro. Jac. 34. If the King let the Mannor of D. of the value of 4 l. per annum if it be more it is ill but if he let it by a particular Name and then adds Quod quidem Manerium is of such a value 't is good because the * 2 Cro. 34. Quod quidem is but the addition of another certainty so here the Advowson is granted by special and express Name but the Clause that follows Dudum spectan̄ to the Archbishop implies a mistake and had there beén no more in the Case this falsity would never have avoided the Grant But when the King had enumerated several ways by which he thought he might be intitled at last as a proof that he was resolved to pass it he adds these Words viz. as it is in our hands by any way or means whatsoever Atkins Iustice of the same Opinion Where the thing is not granted by an express Name there if a falsity is in the description of that thing the Grant is void even in the case of a common person as if he grant Lands lately let to D. in such a Parish and the Lands were not let to D. were also in another Parish the Grant is void because the Lands are not particularly named Anders 148. Heywood's Case A fortiori in the Case of the King as if he grant omnia illa tenementa situata in Wells when in truth the Lands did not lie there for this reason the Grant was void because it was general and yet restrained to a particular Town and the Pronoun illa goes through the whole sentence But if a thing is granted by an express Name though there is a Falsity in the description yet in the Case of a common person 't is good As when the Subchantor and Vicars Choral of Lichfield made a Grant to Humfrey Peto of 78 Acres of Glebe and of their Tythes Predial and Personal and also of the Tythe of the Glebe All which late were in the occupation of Margaret Peto which was not true yet the Grant was adjudged good for the Words All which are not Words of restriction unless when the Clause is general and the Sentence entire but not when it is distinct Cro. Car. 548. But in the Case of the King if there is a falsity by which the King hath a prejudice and a Falsity upon the suggestion of the Party it will make the Grant void but every Falsity will not avoid his Grant if it be not to his prejudice But let the Falsity in this Case be what it will the Adeo plene as it is in our hands helps it and though it hath been objected that these Words will not help the Grant because nothing new is granted that being done before 't is true there is nothing new granted but that which was before was not well granted till this Clause came which supplies and amends the Falsity for now 't is apparent that the King intended to pass the Advowson as well as the Mannor and therefore at last grants it be his Title what it will In all Cases where the Kings Grant is void because of any mistake in his Title 't is to be intended the King would not make the Grant unless the Title were so as 't is recited but here 't is apparent the King resolved to grant it Judgment Wyndham Iustice agreéd and Iudgment was given accordingly Wilcox versus the Servant of Sir Fuller Skipwith Replevin Justification for an Herriot IN Replevin the Defendant justifies the taking of the Cattle for a Herriot which he alledges to be due upon every Alienation without notice The Plaintiff denies the Herriot to be due upon Alienation And thereupon Issue is joyned The Special Verdict finds the Tenure to be by Fealty and the Rent of 3 s. 1 d. though the Defendant in his Avowry had alledged the Rent to be 12 s. 4 d. and the Plaintiff in his Barr to the Avowry had confessed it to be so Suit of Court and an Herriot which was payable upon every Alienation with or without notice And whether upon this Special Verdict Iudgment should be given for the Plaintiff or the Avowant was the doubt Ex parte Def. Vpon the point of Pleading Serjeant Jones for the Defendant said it had béen objected that the Avowry was ill for ut Ballivus c. bene cogn̄ captionem in
ought to bring his Action Pemberton Serjeant for the Plaintiff Ex parte Quer. That this Covenant is not conditional for the words paying and performing signifie no more than that he shall enjoy c. under the Rents and Covenants and 't is a Clause usually inserted in the Covenant for quiet Enjoyment Indeed the word paying in some Cases may amount to a Condition but that is where without such construction the party could have no remedy But here are express Covenants in the Lease and a direct reservation of the Rent to which the party concerned may have recourse when he hath occasion A liberty to take Pot-water paying so many Turns c. 't is a Condition The Words paying and yielding make no Condition Cook and Herle Postea Vaugh. 32. nor was it ever known that for such Words the Lessor entred for Non-payment of Rent and there is no difference between these Words and the Words paying and performing Bennet's Case in B. R. ruled no Condition Duncomb's Case Owen Rep. 54. Barrel Serjeant for the Defendant said Ex parte Def. that the Covenant is to be taken as the parties have agreéd and the Lessor is not to be sued if the Lessée first commit the breach Modus Conventio qualifie the general Words concerning quiet Enjoyment The Court took time to consider and afterwards in this Term Iudgment was given for the Plaintiff Sid. 266 280. that the Covenant was not conditional Atkins Iustice doubted Simpson versus Ellis Debt by a Bailiff of a Liberty DEBT upon Bond by the Plaintiff who was chief Bailiff of the Liberty of Pontefract in Yorkshire but he did not declare as Capital Ballivus but yet by the whole Court it was held good for otherwise the Defendant might have craved Oyer and have it entred in haec verba and then have pleaded the Statute of 23 H. 6. that it was taken * Sand. 161. Sid. 383. Latch 143. colore Officii but now it shall be intended good upon the Demurrer to the Declaration And Ellis Iustice said that so it was lately resolved in this Court in the Case of one Conquest And Iudgment was given for the Plaintiff Mason versus Stratton Executor c. Judgment kept on foot per Fraudem 2 Cro. 35 102. Vaugh. 103 104. DEBT upon Bond. The Defendant pleads two Iudgments had against his Testator and sets them forth and that he had but 40 s Assets towards satisfaction The Plaintiff replies that the Defendant paid but so much upon the first Iudgment and so much upon the second and yet kept them both on foot per Fraudem Covinam And the Defendant demurred specially 1 Roll. Abr. 802. 2 Cro. 626 Because the Replication is so complicated that no distinct Issue can be taken upon it for the Plea sets forth the Iudgments severally but the Plaintiff puts them both together when he alledges them to be kept per Fraudem But on the other side it was said that all the Presidents are as in this Case Sid. 333. 8 Co. Turner's Case 132. 9 Co. Meriel Tresham's Case 108 And of that Opinion was all the Court that the Replication was good And Iudgment was given for the Plaintiff Suffeild versus Baskervil No Breach can be assigned upon a Promise DEBT upon Bond for performance of all Covenants Payments c. In an Indenture of Lease wherein the Defendant for and in consideration of 400 l. lent him by the Plaintiff granted the Land to him for 99 years if G. so long lived provided if he pay 60 l. per annum quarterly during the Life of G. or shall within two years after his death pay the said 400 l. to the Plaintiff then the Indenture to be void with a Clause of Reentry for Non-payment The Defendant pleads performance The Plaintiff assigns for breach that 30 l. for half a year was not paid at such a time during the Life of G. The Defendant demurrs For that the breach was not well assigned because there is no Covenant to pay the Mony only by a Clause Liberty is given to re-enter upon Non payment The Court inclined that this Action would not lie upon this Bond in which there was a Proviso and no express Covenant and therefore no Breach can be assigned Benson versus Idle AUdita Querela The Case upon Demurrer was Estoppel not well pleaded with a Traverse That before the Kings Restauration the now Defendant brought an Action of Trespass against the Plaintiff for taking his Cloath who then pleaded that he was a Souldier and compelled by his Fellow Souldiers who threatned to hang him as high as the Bells in the Belfry if he refused To this the Plaintiff then replied de injuriâ suâ propriâ c. And it was found for him and an Elegit was brought and the now Plaintiffs Lands extended Then comes the Act of * 12 Car. 2. cap. 11. Indempnity which pardons all Acts of Hostility done in the Times of Rebellion and from thenceforth discharges personal Actions for or by reason of any Trespas comitted in the Wars and all Iudgments and Executions thereon before the first day of May 1658. but doth not restore the party to any Sums of Mony mean Profits or Goods taken away by virtue of such Execution or direct the party to give any account for the same which Act made by the Convention was confirmed by 13 Car. 2. cap. 7. And upon these two Acts of Parliament the Plaintiff expresly averring in his Writ that the former Recovery against him was for an Act of Hostility now brought this Audita Querela The Defendant pleads the former Verdict by way of Estoppel and concludes with a Traverse absque hoc that the taking of his Goods was an Act of Hostility This was argued by Holloway Serejant for the Plaintiff and by Jones Serjeant for the Defendant who chiefly insisted That the Defendant having pleaded the substance of this Matter before and being found against him that he being now Plaintiff could not averr any thing against that Record But the Court were all of Opinion that Iudgment should be given for the Plaintiff for his remedy was very proper upon the Convention and without the Statute of Confirmation and here is no Estoppel in the Case for whether this was an act of Hostility or not is not material neither was it or could it be an Issue upon the former Tryal because all the Matter then in Question was concerning the Trespass which though found against the now Plaintiff yet it might be an act of Hostility but if it were an Estoppel 't is not well pleaded with a Traverse and the Court hath set it at large DE Term. Sanctae Trin. Anno 27 Caroli II. in Communi Banco Mayor and Cominalty of London versus Gatford IN an Action of Debt brought by the Plaintiffs Construction of an Act of Parliament for a Fine of 13 l. 6 s. 8 d. set upon the
by Serjeant Jones that they should not pass for though Lands would pass so by a Fine because it was the Agreement of the Parties yet in a Recovery 't is otherwise because more certainty is required therein But in Fines no such Certainty is required and therefore a Fine de Tenementis in Golden-Lane hath beén held good though neither Vill Parish or Hamlet is mentioned Cro Eliz. 693. Cro. Jac. 574. Addison and Ottoway Postea But there being a Vill called Walton in the Parish of Street and a Fine being levyed of Land in Street the Lands in Walton did not pass unless Walton had béen an Hamlet of Street and the Fine had beén levied of Lands in the Parish of Street And the reason of this difference is because in Fines there are Covenants which though they are real in respect of the Land yet 't is but a personal Action in which the Land is not demanded ex directo but in a Recovery greater preciseness is required that being a Praecipe quod reddat where the Land it self is demanded and the Defendant must make Answer to it Cro. Jac. 574 5 Co. 40. Dormer's Case The Word * Antea 41. Liberty properly signifies a Right Priviledge or Franchise but improperly the extent of a place Hill 22 23 Car. 2. Rot. 225. B. R. Waldron's Case Hutton 106. Baker and Johnson's Case Liberties in Iudgment of Law are incorporeal and therefore 't is absurd to say that Lands which are corporeal shall be therein contained They are not permanent having their existence by the Kings Letters Patents and may be destroyed by Act of Parliament they may also be extinguish'd abridged or increased and a Vinire fac of a * Rast Ent. 267. Liberty or Franchise is not good 't is an equivocal Word and of no signification that is plain and therefore is not to be used in real Writs Rast Entr. 382. There is no Praecipe in the Register to recover Lands within a Liberty neither is there any authority in all the Law Books for such a Recovery and therefore if such a thing should be allowed many inconveniences would follow for a good Tenant to the Praecipe would be wanting and the intent of the Parties could not supply that But Barton Serjeant said that this Recovery would pass the Lands in Cotton for as to that purpose there was no difference betweén a Fine and a Recovery Postea 2 Roll. Abr. 20 Godb. 440. they are both become Common Assurances and are to be guided by the agreément of the Parties Cro. Car. 270 276. 'T is true a Fine may be good of Lands in an Hamlet Lieu conus or Parish 1 H. 5. 9. Cro. Eliz. 692. Jones 301. Cro. Jac. 574. Monk versus Butler Yet in a * Godb. 440. contra Scire Fac̄ to have Execution of such Fine the Vill must be therein mentioned Bro. Brief 142. The demand must be of Lands in a Vill Hamlet or at farthest in a Parish Cro. Jac. 574. And of that Opinion was the whole Court absente Ellis who was also of the same Opinion at the Argument and accordingly in Michaelmas Term following Iudgment was given that by this Recovery the Lands in Cotton did well pass And North Chief Iustice denied the Case in Hutton 106. Postea to be Law where 't is said A Common Recovery of Lands in a Lieu conus is not good and said that it had béen long disputed whether a Fine of Lands in a Lieu conus was good and in King James his time the Law was settled in that Point that it was good and by the same reason a Recovery shall be good for they are both amicable Suits and Common Assurances and as they grew more in practice the Iudges have extended them farther A Common Recovery is held good of an Advowson and no Reasons are to be drawn from the Visne or the Execution of the Writ of Seisin because 't is not in the Case of adversary Procéedings but by Agréement of the Parties where 't is to be presumed each knows the others meaning Indeed the Cursitors are to blame to make the Writ of Entry thus and ought not to be suffered in such practice Where a Fine is levied to two the Fée is always fixed in the Heirs of one of them but if it be to them and their Heirs yet 't is good though incertain but a Liberty is in the nature of a Lieu conus and may be made certain by Averment The Iury in this Case have found Cotton to be a Vill in the Liberty of Shrewsbury and so 't is not incorporeal Alford versus Tatnel JVdgment against two who are both in Execution Mod. Rep. 170. and the Sheriff suffers one to escape the Plaintiff recovers against the Sheriff and hath satisfaction the other shall be discharged by an Audita Querela Osbaston versus Stanhope General Replication good DEBT upon Bond against an Heir who pleaded that his Ancestor was seised of such Lands in Fee and made a Settlement thereof to Trusteés by which he limited the Vses to himself for Life Remainder to the Heirs Males of his Body Remainder in Feé to his own right Heirs with power given to the Trusteés to make Leases for threé Lives or 99 years The Trustées made a Lease of these Lands for 99 years and that he had not Assets praeter the Reversion expectant upon the said Lease The Plaintiff replies protestando that the Settlement is fraudulent pro placito saith that he hath Assets by discent sufficient to pay him and the Defendant demurrs Ex parte Def. Newdigate Serjeant The Barr is good for the Plaintiff should not have replied generally that the Defendant hath Assets by discent but should have replyed to the praeter Hob. 104. Like the Case of Goddard and Thorlton Yelv. 170. where in Trespas the Defendant pleaded that Henry was seised in Fee who made a Lease to Saunders under whom he derived a Title and so justifies The Plaintiff replies and sets forth a long Title in another person and that Henry entred and intruded The Defendant rejoyns that Henry was seised in Fée and made a Lease ut prius absque hoc that intravit se sic intrusit and the Plaintiff having demurred because the Traverse ought to have been direct viz. absque hoc quod intrusit and not absque hoc that Henry intravit c. it was said the Replication was ill for the Defendant having alledged a Seisin in Fée in Henry which the Plaintiff in his Rejoynder had not avoided but only by supposing an intrusion which cannot be of an Estate in Fée but is properly after the death of Tenant for Life for that reason it was held ill Ex parte Quer. But Pemberton Serjeant for the Plaintiff held the Replication to be good The Defendants Plea is no more than Riens per descent for though he pleads a Reversion 't is not chargeable because 't is a Reversion after
Authorities with great exactness and nicety yet this Matter of Livery upon Endorsements of Writing was always favourably expounded of later times unless where it plainly appeared that the Authority was not pursued at all Sid. 428. as if a Letter of Attorney be made to thrée joyntly and severally two cannot execute it because they are not the Parties delegated they do not agreé with the Authority And Iudgment was given accordingly Richards versus Sely. THIS was a Special Verdict in Ejectione firmae for Lands in the County of Cornwal The Case was this viz. Covenant made to enjoy a Copy-hold de anno in annum 't is a Lease and so a Forfeiture Thomas Sely was seised of the Lands in question for life according the Custom of the Mannor of P. and he together with one Peter Sely were bound in a Bond to a third person for the payment of 100 l. being the proper Debt of the said Thomas who gave Peter a Counter-bond to save himself harmless And that Thomas being so seised did execute a Déed to Peter as a Collateral Security to indempnifie him for the payment of this 100 l. by which Deéd after a recital of the Counterbond given to Peter and the Estate which Thomas had in the Lands he did covenant grant and agree for himself his Executors Administrators and Assigns with the said Peter that he his Executors and Administrators should hold and enjoy these Lands from the time of the making of the said Déed for seven years and so from the end of seven years to seven years for and during the term of 49 years if Thomas should so long live 2 Cro. 301. In which Déed there was a Covenant that if the said 100 l. should be paid and Peter saved harmless according to the Condition of the said Counterbond then the said Déed to be void The Question was whether this being in the Case of Copyhold Lands will amount to a Lease thereof and so make a Forfeiture of the Copyhold Estate there being no Custom to warrant it Ex parte Quer. This Case was argued this Term by Serjeant Pemberton for the Plaintiff and in Trinity Term following by Serjeant Maynard on the same side who said that this was not a good Lease to entitle the Lord to a Forfeiture It hath béen a general Rule that the Word Covenant will make a Lease though the Word Grant be omitted nay a Licence to hold Land for a time without either of those Words will amount to a Lease much more when the Words are to * 2 Cro. 92 398. Noy 14. 1 Roll. Abr. 848 849. Cro. Car. 207. have hold and enjoy his Land for a Term certain for those are Words which give an Interest and so it hath béen ruled in Tisdale and Sir William Essex's Case which is reported by several and is in Hob. 35. and 't is now setled that an Action of Debt may be brought upon such a Covenant And all this is regularly true in the Case of a Fréehold But if the construing of it to be a Lease will work a Wrong then 't is only a Covenant or Agreément and no Interest vests and therefore it shall never be intended a Lease in this Case because 't is in the Case of a Copyhold Estate for if it should there would be a Wrong done both to the Lessor and Lessée for it would be a Forfeiture of the Estate of the one and a defeating of the Security of the other It has beén generally used in such Cases to consider what was the intention of the Parties and not to intend it a Lease against their meaning for which there is an express Authority 2 Cro. 172. in the Case of Evans and Thomas Noy 128. in which Howel covenants with Morgan to make a Conveyance to him of Land by Fine provided that if he pay Morgan 100 l. at the end of thirtéen years that then the use of the Fine shall be to the Congnisor and covenants that Morgan shall enjoy the said Lands for thirtéen years and for ever after if the 100 l. be not paid The Assurance was not made and this was adjuged no Lease for thirtéen years because it was the intent of the Parties to make an Assurance only in the nature of a Mortgage which is but a Covenant And this appears likewise to be the intention of the Parties here because in the very Deed 't is recited that the Lands are Copihold It also sounds directly in Covenant for 't is that Peter shall or may enjoy without the lawful let or interruption of the Lessor All Agreements must be construed secundum subjectam materiam if the Matter will bear it and in most Cases are governed by the intention of the Parties and not to work a Wrong and therefore if Tenant in Tail makes a Lease for Life it shall be taken for his own Life and yet if before the Statute of Entails he made such Lease he being then Tenant in Fée-simple it had been an Estate during the Life of the Lessée but when the Statute had made it unlawful for him to bind his Heir then the Law construes it to be for his own Life because otherwise it would work a Wrong Hob. 276. Co. Lit. 42. So in this case it shall not amount to a Lease for the manifest inconveniency which would follow but it shall be construed as a Covenant and then no injury is done On the Defendants part it was argued by Serjeant Newdigate that though this was in the Case of a Copyhold Ex parte Def. that did not make any difference for the plain meaning of the Parties was to make a Lease But where the Words are doubtful and such as may admit of diverse constructions whether they will amount to a Lease or not there they shall be taken as a Covenant to prevent a Forfeiture So also if they are only Instructions as if a Man by Articles sealed and delivered is contented to demise such Lands and a Rent is reserved and Covenants to repair c. Or if one covenants with another to permit and suffer him to have and enjoy such Lands 1 Rol. Abr. 848. these and such like Words will not amount to a Lease because as hath béen said the intention of the Parties is only to make it a Covenant but here the Words are plain and can admit of no doubt But for an Authority in the Point the Lady * 2 Cro. 301. Mountagues Case was cited where it was adjudged that if a Copyholder make a Lease for a year warranted by the Custom sic de anno in annum during ten years 't is a good Lease for ten years and a Forfeiture of the Copyhold Estate Vide Hill 15 16 Car. 2. Rot. 233. the Case of Holt and Thomas in this Court The Court inclined that it was a good Lease Curia and by consequence a Forfeiture of the Copihold and that a Licence in this
one Prescription is directly contrary to the other and for that reason one must be traversed but here the Defendant hath confessed that the Plaintiff hath a Right of Common but t is not an absolute but a qualified Right against which the Defendant may Enclose and here being two Prescriptions pleaded and one of them not being confessed it must from thence necessarily follow that the other is the Issue to be tryed which in this Case is whether the Defendant can enclose or not The Chief Iustice and the whole Court were of Opinion Curia that where there are several Free-holders who have Right of Common in a Common Field that such a Custom as this of enclosing is good because the remedy is reciprocal for as one may enclose so may another But Iustice Atkyns doubted much of the Case at Bar because the Defendant had pleaded this Custom to Enclose in barr to a Freeholder who had no Land in the Common Field where he claimed Right of Common but prescribed to have such Right there as appendant to two Acres of Land he had alibi for which reason he prayed to amend upon payment of Costs Attorny General versus Sir Edward Turner in Scaccario Exposition of the Kings Grant INformation The Case was Viz. The King by Letters Patents granted several Lands in Lincolnshire by express words and then this Clause is added upon which the Question did arise Nec non totum illud fundum solum terras suas contigue adjacen ' to the Premisses quae sunt aqua cooperta vel quae in posterum de aqua possunt recuperari and afterwards a great quantity of Land was gained from the Sea and whether the King or the Patentee was intituled to those Lands was the Question Devise of a possibility good by a common person 2 Cro. 509. pl. 21. 1 Bulst 194. Sawyer for the King argued that he had a good Title because the Grant was void he having only a bare possibility in the thing granted at the time But Levins on the other side insisted that the Grant of those Lands was good because the King may Grant what he hath not in possession but only a possibility to have it But admitting that he could not make such a Grant yet in this Case there is such a certainty as the thing it self is capable to have and in which the King hath an Interest and it is hard to say that he hath an Interest in a thing and yet cannot by any means dispose of it If it should be objected that nothing is to pass but what is contigue adjacen ' to the Premisses granted and therefore an Inch or some such small matter must pass and no more certainly that was not the intention of the King whose Grants are to be construed favourably and very bountifully for his Honour and not to be taken by Inches Postea Company of Ironmongers and Naylor If there are two Marshes adjoyning which are the Kings and he grants one of them by a particular name and description and then he grants the other contigue adjacen ' ex parte australi certainly the whole Marsh will pass and 't is very usual in pleading to say a Man is seised of a House or Close and of another House c. contigue adjacen ' that is to be intended of the whole House In this Case the King intended to pass something when he granted totum fundum c. but if such construction should be made as insisted on then those words would be of no signification 'T is true the word illud is a Relative and restrains the general words and implies that which may be shewn as it were with a Finger and therefore in Doddington's Case 2 Co. 32. a Grant of omnia illa Mesuagia scituate in Wells and the Houses were not in Wells but elsewhere the Grant in that Case was held void because it was restrained to a certain Village and the Pronoun illa hath reference to the Town but in this Case there could be no such certainty because the Land at the time of the Grant made was under Water But if the Patent is not good by the very words of the Grant the non obstante makes it good which in this Case is so particular that it seems to be designed on purpose to answer those Objections of any mistake or incertainty in the value quantity or quality of the thing granted which also supplies the defects for want of right instruction given the King in all cases where he may lawfully make a Grant at the Common Law 4 Co. 34. Moor pl. 571. Bozuns Case And there is another very general Clause in the Patent viz. Damus praemissa adeo plene as they are or could be in the Kings hands by his Prerogative or otherwise * Ante Adeo plene are operative words Whistlers Case 10 Co. And there is also this Clause omnes terras nostras infra fluxum refluxum maris 'T is true Sid. 149. these words praemissis praed ' spectan ' do follow from whence it may be objected that they neither did or could belong to the Premisses and admitting it to be so yet the Law will reject those words rather than avoid the Grant in that part In the Case of the Abbot of * 9 Co. 27. b. Strata Marcella the King granted a Mannor Et bona catalla felonum dicto Manerio spectan ' now though such things could not be appendant to a Mannor yet it was there adjudged that they did pass Such things as these the King hath by his Prerogative and some things the Subject may have by Custom or Prescription as Wrecks c. and in this very Case 't is said that there is a Custom in Lincolnshire that the Lords of Mannors shall have derelict Lands and 't is a reasonable Custom for if the Sea wash away the Lands of the Subject he can have no recompence unless he should be entituled to what he gains from the Sea and for this there are some Authorities as Sir Henry Constable's Case 2 Roll. 168. 5 Co. Land between High-Water and Low-Water Mark may belong to a Mannor But no Iudgment was given Morris versus Philpot in B. R. Release by an Executor before Probate THE Plaintiff as Executor to T. brings an Action of Debt against the Defendant as Administrator to S. for a Debt due from the said intestate to the Plaintiffs Testator The Defendant pleads that the Plaintiff released to him all Brewing Vessels c. and all other the Estate of S. lately deceased this Release was before probate of the Will to which Plea the Plaintiff demurred and whether this Release was a good Barr to the Plaintiffs Action was the Question Ex parte Quer. It was said for the Plaintiff that it was not for if a Conusee release to the Cognisor all his right and title to the Lands of the Cognisor and afterwards sues out
pass why did they levy this Fine sur concessit They might have levyed a Fine sur Cognisance de droit come ceo c. and that had beén a Disseisin Besides what need was there for them to mention any Estate which they had in these Houses if they had intended a Disseisin But this being done such a Construction is to be made as may support the intent of the Parties and it would be very unreasonable that what was intended to preserve the Estate should now be adjudged to work a Dissesin so as to forfeit it and such a Disseisin upon which this collateral Warranty shall operate and barr the Estate in Remainder And therefore no more shall pass by this Fine than what lawfully may and rather than it shall be construed to work a Wrong the Estate shall pass by fractions for both the Estates of William Mitton for Life are not so necessarily joyned and united by this Fine that no room can be left for such a Construction 2. Such a Construction will not agreé with the Nature and Words of this Fine 'T is true a Fine as it is of the most solemn and of the greatest Authority so 't is of the greatest force and efficacy to convey an Estate and the most effectual Feoffment of Record where 't is a Feoffment and likewise the most effectual Release where 't is to be a Release But on a bare Agreément made in Actions betwéen the Demandant and Tenant at the Barr and drawn up there the Iudges will alter and amend such Fines if they did not in all things answer the intention of the Parties 24 Ed. 3. 36. Postea 'T is agreed that Fines can work a Disseisin when they can have no other Interpretation as if Tenant pur auter vie levy a Fine to a Stranger for his own Life 't is more than such a Tenant could do because his Estate was during the Life of another and no longer So a Fine sur Cognisance de droit c. implies a Fée which being levyed by any one who has but a particular Estate will make a Disseisin But this Fine sur concessit has beén always taken to be the most harmless of all others and can be compared to nothing else than a Grant of totum statum suum quicquid habet c. by which no more is granted than what the Cognisor had at the time of the Grant and so it hath been always construed Indéed there is a Fine sur concessit which expresses no Estate of the Grantor and this is properly levyed by Tenant in Fée or Tail but when particular Tenants pass over their several Estates they generally grant totum quicquid habent in tenementis praedictis being very cautious to express what Estate they had therein When this Fine sur concessit was first invented the Iudges in those days looked upon the Words quicquid habent c. to be insignificant and for that reason in Anno 17 E. 3. 66. they were refused The case was Two Husbands and their Wives levied such a Fine to the Cognisee and thereby granted totum quicquid habent c. which Words were rejected and the Iudge would not pass the Fine because if the Party had nothing in the Land then nothing passed and so is 44 Ed. 3. 36. By which it appears that the Iudges in those times thought these Fines did pass no more than what the Cognisor had and for this there are multitude of Authorities in the Year Books Now these Words cannot have a signification to enlarge the Estate granted they serve only to explain what was intended to pass for in the Case at the Barr if the Grant had béen totum quicquid habent in tenementis praedictis there would have been no question of the Estate granted but the Cognisors having granted tenementa praedicta they seem by these subsequent Words to recollect themselves viz. totum quicquid habent in tenementis praedictis Object But it may be objected that the Limitation of the Estate viz. durante vita eorum alterius eorum diutius viventis works a Disseisin because by those Words two Estates for Life pass entire in possession whereas in truth there was but one Estate for Life of the Husband in possession and therefore this was more than they could grant because the Estate Tayl came between the Estate which the Husband and Wife had for their Lives and for the Survivor of them and the Estate which the Husband had for his own Life And this is farther enforced by that Rule in Law That Estates shall not pass by fractions for otherwise there can be no reason why they should not thus pass Answ But this Rule is very fallible and not so much to be regarded 't is true the Rule is so far admitted to be true where without inconveniency Estates may pass without fraction but where there is an inconveniency it may be dispensed withal it being such an inconveniency as may appear to the Iudges to make the thing granted to go contrary to the intent of the Parties And that such Interpretations have been made agrees with the third Reason proposed in this Case viz. That it hath received countenance by judicial Opinions and determinations in former Iudgments 14 E. 4. 4. 27 H. 8. 13. 1 Co. 67. Bredons Case which was thus Tenant for life remainder in tayl to A. remainder in tayl to B. Tenant for life and he in the first remainder levied a Fine sur cognisance de droit come ceo 't was adjudged that this was no Discontinuance of either of the Remainders 1 Roll. Abr. lit I. pl. 4. 1 Inst 45. a. Cro. Car. 406. because each of them gave what he might lawfully viz. The Tenant for Life granted his Estate and the Remainder-man passed a Fee-simple determinable upon his Estate Tail and yet each of their Estates were still divided On the other side it was said that in all Cases where the person who hath a particular Estate takes upon him either by Feoffment in pais or by Fine which is a Feoffment on Record to grant a greater Estate than he hath as in this Case is done though possibly the Estate of the Grantée may determin before that of the Grantor yet 't is a displacing the Reversion as if a Man has an Estate for ten Lives and makes a Grant for the Life of another here is a possibility that the Estate which he granted may be longer than the Estate he had in the thing granted because one Man may survive the Ten and for that reason 't is a divesting 1. In this Case the Estate which the Husband and Wife had is to be considered 2. What they granted And by comparing of these together it will appear whether they granted more than they had The Husband and Wife had an Estate for the Life of the Wife and after the Estate Tail the Husband had an Estate for his own Life now they grant
an Estate for the Life of the Husband and Wife and the Survivor What is this but one entire Estate in possession No other Interpretation can be agréeable to the sense of the Words for if it had been granted according to the true Estate which each had then it should have been first for the Life of the Wife and after the Tail spent then for the Life of the Husband The next thing to be considered is Whether the Estate shall pass entire or by fractions And as to that I need say no more than only to quote the Authority of that Iudgment given in Garret and Blizard's Case 1 Roll. Abr. 855. which is shortly thus viz. Tenant for Life Remainder for Life Remainder in Tail Remainder in Fee to the Tenant for Life in Remainder this Tenant for Life in Remainder levies a Fine come ceo c. it was adjudged a Forfeiture of his Estate for Life so that the Remainder Man in Tail might enter after the death of the Tenant for Life in possession for it shall not be intended that he passed his Estate by fractions viz. an Estate in Remainder for Life and a Remainder in Feé expectant upon the Estate Tail but one entire Estate in possession and 't is not like the Authority in Bredon's Case for there the Estate for Life and the Estate Tail followed one another Next it is to be considered whether after they granted omnia illa tenementa the subsequent Words totum statum suum c. do not come in by way of Restriction and qualifie what went before But those subsequent Words are placed in this Fine not by way of Restriction but of Accumulation Litt. 345 In Littleton Sect. 613. 't is said that if Tenant in Tail grants all his Estate in the Tenements Habendum all his Estate c. in this Case the Alienee hath but an Estate for the Life of the Tenant in Tail and 't is observable that totum statum in the Case put by Littleton is both in the Premisses and the Habendum But if I will grant tenementa praedicta in the Premisses and then make another Limitation in the Habendum there totum statum quicquid can make no Restriction if it should it will spoil most Conveyances It is agréed that if those Words had béen omitted in this Case then by this Fine the Reversion would be displaced and therefore much weight is laid upon these Words to explain the meaning of the Parties thereby and that when they granted tenementa praedicta they meant totum statum c. But here is no ground for such an Interpretation 't is an entire Grant of the Houses by the Words Tenementa praedicta and the subsequent Words shall never be allowed to make such a Restriction which shall overthrow the frame of the Déed If a Man who has no Estate in the Land passes it by Deéd this shall work against him by way of Estoppel and these Words totum quicquid c. which are usual in all Conveyances shall make no alteration of the Law for if such construction should be made of these Words as hath béen objected then in all Déeds where they are inserted if it happen that the Party hath no Estate or a void Estate nothing passes and then Covenants Estoppels and Warranties would be no Securities in the Law 2. These Words totum quicquid c. come in a distinct Clause of the Grant the precedent Words are Tenementa praedicta totum statum quicquid c. reddiderunt which are two parts a Grant and a Release and have no dependance upon each other being distinct Clauses and therefore these Words shall not be any Restriction of the former but if one Clause be carried on with a connexion so as 't is but an entire sentence in such Case a Man may restrain either general or particular Words Hob. 171. in Stukely and Butler's Case 3. Admitting these Words are a Restriction of the former yet the Estate is so limited that if the first Words were out of the Case this later Clause he said was enough for his purpose for the Grant is not in the usual Words by which Estates pass viz. Estate Right Title Interest but Totum quicquid c. for the Lives of the Grantors and the Survivor which shews that they took upon themselves to grant for a longer time than they had in possession if they had only granted it for both their Lives they might have some colourable pretence 4. 'T is apparent from the Clause of the Warranty that the intent of the Parties was to grant an Estate expresly in possession for the Lives both of the Husband and his Wife for 't is that which the Grantée shall hold c. during their Lives and the longest Liver Object The Case of * 2 Rol. Abr. 36 403. Eustace and Scaven has been objected 'T is reported in 2 Cro. 696. which is Feme Covert and A. are Iointenants for Life the Husband and Wife levy a Fine to A. the other Iointenant and grant the Land and totum quicquid habent c. to him during the Life of the Wife with Warranty the Wife survives A. her Companion Adjudged that these Words Totum quicquid shall not enure by way of Grant and severance of the Iointure of the Moiety for then there would be an Occupancy but they are restrictive only to the Estate of the Wife and shall enure by way of Release to A. so that after his death he in Reversion may enter Answ It would not be a Question in that Case whether these Words were restrictive or not for nothing was granted but what might lawfully pass viz. during the Life of the Wife the other Ioyntenant neither was there any stress laid on those Words for Mr. Iustice Jones who was a Learned Man and reported the same Case fol. 55. hath made no mention thereof but hath wholly omitted those Words which he would not have done if the Case had depended upon them 2. Object Next the Form of this Fine has been objected and a President was cited Rast Entr. 241. where such a Fine was levied and nothing passed but for the Life of the Conusor Answ But no Authority can be produced where a Man that had an Estate for Life in Possession and another in Remainder and granted by the same Words as in this Case but that it was a Forfeiture 3. Object That the Law will not make a Construction to work a Wrong and therefore if Tenant for Life grant generally for Life it shall be interpreted during the Life of the Grantor Answ That Case is without express Words or shewing any time for which the Grantee shall have the thing granted and therefore the Law restrains it to the Life of the Grantor because it will not make Words which are doubtful and of incertain signification to do any Wrong But where there are express Words as in this Case no other
Statuti if there be any other Statute which prohibits and punishes a Riot this Information is as well grounded upon such as upon this Statute of Philip and Mary for 't is expresly said that the Defendant and others did unlawfully assemble themselves together and riotose routose made an Assault upon her so that it shall be intended to be grounded upon such a Law as shall be best for punishing the Offence The Court were of Opinion Curia That notwithstanding these Exceptions the Information was good and was not like the Case of an Indictment upon the Statute for a forceable Entry That such a day by force and arms the Defendant did Enter into such a House 2 Cro. 14610 639. existen ' liberum tenementum of J. N. and if he doth not say tunc existen ' the Indictment is naught because the Iury may enquire of a thing before it is done but here the existen being added to the person carries the sense to the time of the Offence committed The Statute of 1 R. 3. saith that all Grants made by Cestui que use being of full Age shall be good against him and his Heirs and 't is adjudged 16 H. 7. that he need not shew when and where but generally existen ' of full Age and upon the Evidence it must be so proved Where a thing relates to the Condition of a Man it shall be tryed in the County where the Action is laid and 't is not necessary to say in what County he is a Knight or an Esquire any Citizen and Freeman may devise his Land in Mortmain by the Custom of London 't is enough to say in Pleading existen ' a Citizen and Freeman without setting forth when and where If a Man be Indicted for not coming to Church 't is enough to say existen ' of the Age of 16 years he did not come to Church This is an Offence punishable at Common Law 't is malum in se But admitting 't was an Offence created by the Statute there being no Negative words to prohibit this Court hath a Iurisdiction to punish this Offence if the Star Chamber had not been taken away for the Party had his election to proceed in this Court upon the prohibitory Clause and the Iustices of Assise must be intended the Iustices of Oyer and Terminer Moor 564. Whereupon the Defendant was Fined 500 l. and bound to his good Behaviour for a Year Brown versus Waite Entailed Lands forfeited for Treason Jones 57. 1 Ventr 299. UPon a Special Verdict in Ejectment The Case was viz. Sir John Danvers the Father of the Lessor of the Plaintiff was in Anno Domini 1646. Tenant in Tail of the Lands now in Question and was afterwards instrumental in bringing the late King Charles to death and so was guilty of High Treason and dyed Afterwards the Act of Pains and Penalties made 13 Car. 2. cap. 15. Enacts That all the Lands Tenements and Hereditaments which Sir John Danvers had the 25th day of March in the year 1646. or at any time since shall be forfeited to the King And whether these entailed Lands shall be forfeited to the King by force of this Act was the Question Wallop who argued for the Plaintiff said that the entailed Lands were not forfeited his Reasons were 1. These Lands entailed are not expressly named in that Act. 2. Tenant in Tail hath but an Estate for Life in his Lands and therefore by these words All his Lands those which are entailed cannot be intended for if he grant totum statum suum only an Estate for Life passeth 3. These Lands are not forfeited by the Statute of 26 H. 8. cap. 13. which gives the forfeiture of entailed Lands in case of Treason hecause Sir John Danvers was not convicted of it by Process Presentment Confession Verdict or Outlawry which that Statute doth require for he dyed before any such Conviction Sir Francis Winnington the Kings Solicitor argued contra that entailed Lands are forfeited by the Act of Pains and Penalties and in speaking to this matter he considered 1. The words of that Act. 2. How Estates Tail were created and how forfeitable for Treason 1. This Act recites the Act of general Pardon which did not intend to discharge the Lands of Sir John Danvers and others from a Forfeiture 2. It recites that he was Guilty of High Treason 3. Then comes the enacting Clause Viz. That all the Lands Tenements Rights Interests Offices Annuities and all other Hereditaments Leases Chattels and other things of what nature soever of him the said Sir John Danvers and others which they had on the 25th of March 1646. or at any time since shall be forfeited to the King his Heirs and Successors 2. As to the creation of Intails there were no such Estates at the Common Law they were all Fee-simple Conditional and post prolem suscitatam the Condition was performed for three purposes Viz. To Alien Co. Lit. 19. a. 2 Inst 334. To Forfeit Or to charge with a Rent and thus the Law continued till 13 E. 1. and there having been frequent Warrs between King John and the Barons the great Men then obtained the Statute De donis to preserve their Estates lest the like occasion should happen again in which 't is only mentioned that the Tenant in Tail should not have power to alien but it was well known that if he could not alien he could not forfeit for before that Statute as he might alien post prolem suscitatam so the Iudges always construed that he might forfeit 5 Edw. 3.14 for forfeiture and alienation did always go hand in hand 1 Co. 175. Mildmay's Case And from the making of that Statute it always continued a setled and received Opinion That Tenant in Tail could not alien until by the 12th of Ed. 4. a Recovery came in by which the Estate Tail may be docked and which is now become a Common Assurance Then by the Statute of 4 H. 7. cap. 24. Tenant in Tail might bar his Issue by Fine and Proclamation and all this while it was not thought that such Lands could be forfeited for Treason which Opinion continued during all the Reign of H. 7. for though by his Marriage the Houses of York and Lancaster were united yet the Great Men in those days thought there might be some doubt about the Succession after the death of H. 7. if he should dye without Issue and thereby those differences might be again revived and therefore no endeavours were used to make any alteration in the Law till after the death of H. 7. And after his Son H. 8. had Issue those doubts were removed and being never likely to arise again then the Act of 26 H. 8. was made which gives a Forfeiture of entailed Lands in cases of Treason The inference from this will be that all the Cases put before the 26th year of H. 8. and so before entailed Lands were made forfeitable for Treason and where by the general Words
of Lands Tenements and Hereditaments 't was adjudged entailed Lands did not pass do not concern this Case but now since they are made forfeitable by that Statute such general words are sufficient to serve the turn By the Statute of 16 R. 2. cap. 5. entailed Lands are not forfeited in a Praemunire but during the Life of Tenant in Tail because they were not then to be forfeited for Treason 2 Inst 334. 1 Inst 3. Co. Lit. 130. If then it appears that the Crime of which Sir John Danvers was guilty was Treason and if entailed Lands are forfeited for Treason then when the Act saith That he shall forfeit all his Lands by those general Words his entailed Lands shall be forfeited And though by the Common Law there can be no Attainder in this Case the Party being dead yet by Act of Parliament that may be done and the words in this Act amount to an Attainder The intent of it was to forfeit Estates Tail which may be collected from the general Words for if a Fee-simple is forfeited though not named why not an Estate Tail especially since the word Hereditaments is very comprehensive and may take in both those Estates Spelman's Glossary 227. 2 Roll. Rep. 503. In the very Act of 26 H. 8. cap. 13. Estates Tail are not named for the Words are Every Offender convict of Treason c. shall forfeit all such Lands Tenements and Hereditaments which he shall have of any Estate of Inheritance in use possession or by any Right Title or Means c. and yet a Construction hath been made thereupon in favour of the Crown so a Dignity of an Earldom intailed is forfeitable by this Statute by the Word Hereditament 7 Co. 34. Afterwards in Hillary Term Rainsford Chief Iustice delivered the Opinion of the Court Judgment That upon Construction of the Act of Pains and Penalties this Estate Tail was forfeited to the King He agreed the Series and progress of Estates Tail to have been as argued by the Solicitor and that the Question now was whether by the Act of Pains c. Estates Tail can be forfeited unless there are express Words to take away the force of the Statute de donis conditionalibus Preface to 3 Co. for by that Statute there was a settled perpetuity Tenant in Tail could neither forfeit or alien his Estate no not in Case of Treason and Forfeiture is a kind of Alienation but afterwards by the Resolution in Ed. 4. an Alienation by a Common Recovery was construed to be out of the said Statute and by the Statute of Fines 4 H. 7. which is expounded by a subsequent Statute of 32 H. 8. cap. 36. Tenant in Tail notwithstanding his former restraint had power to alien the Estate Tail and barr his Issue but all this while his Estate was not to be forfeited for Treason till the Statute of 33 H. 8. cap. 20. which gives Uses Rights Entries Conditions as well as Possessions Reversions Remainders and all other things of a person attainted of Treason by the Common or Statute Law of the Realm to the King as if such Attainder had been by Act of Parliament Then by the Statute of 5 6 Ed. cap. 11. 't is Enacted That an Offender being guilty of High Treason and lawfully convict shall forfeit to the King all such Lands Tenements and Hereditaments which he shall have of any Estate of Inheritance in his own Right in Use or Possession by which Statutes that de donis conditionalibus was taken off in Cases of Treason as it had been before by the resolution in 12 E. 4. and by the Statute of Fines as to the Alienation of an Estate Tail by Fine and Recovery If therefore this Act of Pains c. will admit of such a construction as to make Estates Tail forfeit here is a Crime great enough to deserve such a great punishment a Crime for which the Parliament hath ordered an Anniversary to be kept for ever with Fasting and Humiliation to implore that the Guilt of that innocent Blood then shed may not be required of our Posterity this they esteemed as another kind of Original Sin which unless thus expiated might extend not only ad Natos sed qui nascantur ab illis And that this Act will admit of such a Construction these Reasons were given 1. From the general comprehensive Words mentioning those things which are to be forfeited viz. Messuages Lands Tenements Reversions and Interests which last Word signifies the Estate in the Land as well as the Land it self or otherwise the Word must be construed to have no effect 2. Estates Tail are not now protected by the Clause in the Statute de donis * Inst 334. Non habet potestatem alienandi but are subject to the forfeiture by the Act of H. 8. which though it extends to Attainders only yet 't is a good Rule for the Iudges to make a Construction of an Act of Parliament by especially in such a Case as this wherein 't is plain that the Law did look upon these Offenders if not attainted yet in pari gradu with such persons and therefore may be a good Warrant to make the like Construction as in Cases of Attainder 3. Because the Offenders are dead for had they béen living there might have been better reason to have construed this Act not to extend to Estates Tail because then something might be forfeited viz. an Estate for Life and therefore the Act would signifie very little if such Construction could not be made of it to reach Estates Tail of such persons who were dead at the time of the making the Law especially since 't is well known that when Men engage in such Crimes they give what Protection they can to their Estates and place them as far as they can out of danger 4. It appears by the Act that the Law-makers did not intend that the Children of such Offenders should have any benefit of their Estates because in the Proviso there is a saving of all Estates of Purchasers for Mony bona fide paid and therein also a particular Exception of the Wife and Children and Heirs of the Offenders and if the Act would not protect the Estate of the Children though they should be Purchasers for a valuable consideration it will never protect their Estate under a voluntary Conveyance made by the Ancestor especially in this Case because the Entail carries a suspicion with it that it was designed with a prospect to commit this Crime for Sir John Danvers was Tenant in Tail before and in the year 1647. levies a Fine to barr that Entail and then limits a new Estate Tail to himself in which there is a Provision to make Leases for any number of years upon what Lives soever in Possession or Reversion with Rent or without it and this was but the year before the Crime committed 5. The Proviso in the Act for saving the Estates of Purchasers doth protect all Conveyances and
Assurances c. of Land not being the Lands of the late King Queen Prince c. and not being Land sold for any pretended Delinquency since the first of June 1641. and all Statutes and Judgments suffered by the Offenders from being impeached from which it appears that the Parliament lookt upon entailed Lands as forfeited for if Estates made to others upon a valuable consideration had need of a Proviso to save them from Forfeiture à fortiori the Estates out of which those are derived have need of such a saving and therefore must be forfeit by the Act for which Reasons these Lands are forfeited As to the great Objection which hath been made and insisted on the other side and which is Trudgeons Case 22 Eliz. 1 Inst 130. Where Tenant in Tail was attainted in a Praemunire and it was adjudged that he should forfeit his Land but during his Life for though the Statue of 16 R. 2. cap. cap. 5. Enacts That in such Case their Lands Tenements Goods and Chattels shall be forfeited to the King yet that must be understood of such an Estate as he may lawfully forfeit and that is during his own life and therefore being general Words they do not take away the force of the Statute de donis so that his Lands in Fee-simple for life c. shall be forfeited but the Land entailed shall not during his life But the Answer is plain For in the Reign of R. 2. when the Statute of Praemunire was made Estates Tail were under a Perpetuity by the said Statute de donis which Statute is now much weakened in the Point of Alienation and the Law is quite altered since that time and 't is apparent by multitude of Presidents that such strict Constructions have not been made since that time to preserve Estates Tail from Forfeitures without special and particular Words 4 Co. 164. and therefore in the Case of Adams and Lambert which is a Case in Point the Iudges there construed Estates Tail to be forfeit for want of special Words in the Statute of 1 E. 6. cap. 14. to save it and that was only a Law made for suppressing of superstitious Vses upon a politick consideration but this is a much greater Offence intended to be punished by this Act in which there are demonstrations both from the Words and intent of the Law-makers to make this Estate forfeited to the Crown than in that Case so much relied on And Iudgment was given accordingly Wyld died before Iudgment was given but Iustice Twisden said he was of that Opinion and Jones Iustice concurred Basset versus Salter After an Escape the Plaintiff may have a Ca. Sa. or Sci. Fa. against the Sheriff IN an Action for an Escape the Question was whether the Plaintiff may take out a Ca. Sa. or have a Fi. Fa. against the Defendant after the Sheriff or Gaoler voluntarily suffer him to escape but the Court would not suffer it to be argued because it had been lately settled that it was at the Election of the Plaintiff to do either and upon a Writ of Error brought in the Exchequer-Chamber the Iudges there were of the same Opinion But in the Lord Chief Iustice Vaughan's time the Court of Common Pleas were divided but 't is since settled 1 Roll. Abridg. 901 902. If there be an Escape by the Plaintiffs consent though he did not intend it the Law is hard that the Debt should be thereby discharged as where one was in execution in the Kings Bench and some Proposals were made to the Plaintiff in behalf of the Prisoner who seeing there was some likelyhood of an Accomodation consented to a Meeting in London and desired the Prisoner might be there who came accordingly and this was held to be an Escape with the * If it had been by the consent of the Sheriff he could never take him again but the Plaintiff might Sid. 330. consent of the Plaintiff and he could never after be in Execution at his Suit for the same Matter Peck versus Hill In Communi Banco Bond good given in discharge of another Mod. Rep. 221. DEBT upon a Bond brought against the Defendant as Administrator who pleads that he gave another Bond in his own Name in discharge of the first Bond and upon Issue joined it was found for the Defendant and it was moved that Iudgment might not be entred hereupon because it was a bad Plea But North Chief Iustice and Wyndham and Scroggs Iustices were of Opinion that it was a good Plea because there was other Security given than what the Plaintiff had before for upon the first Bond he was only lyable de bonis Intestatoris but now he might be charged in his own Right Co. Lit. 122. b. which may be well said to be in full satisfaction of the first Obligation for where the Condition is for payment of Mony to the Party himself there if he accept any collateral thing in satisfaction 't is good If a Security be given by a Stranger it may discharge a former Bond and this in effect is given by such And 't is not like the Case in Hobert where a Bond was given by the same Party upon that very day a former Bond was payable and adjudged not a good discharge for the Obligee was in no better condition than he was before Iustice Atkins doubted but inclined that one Bond cannot be discharged by giving another though the Discharge be applied to the Condition of the Bond and for this he cited Cro. Car. 85. Cro. Eliz. 716 727. which was a Case adjudged so in Point and therefore this Plea upon Demurrer should have been over-ruled yet since Issue was taken upon it and a Verdict for the Defendant the Plea is helped by the Statute of Jeofails 32 H. 8. here being a direct Affirmative and Negative But as to that the Chief Iustice and Scroggs Iustice replied that an immaterial Issue no ways arising from the Matter is not helped as an Action of Debt upon a Bond laid to be made in London and the Defendant saith that it was made in Middlesex and this is tried 't is not aided by the Statute but there must be a Repleader But because it was sworn that the Obligor who was the intestate was alive four years after the time that the second Bond was given and for that reason it could not be given upon the accompt of the Defendants being liable as Administrator but must be intended a Bond to secure a Debt of his own therefore a new Trial was granted Cook and others versus Herle Covenant will lie in the personalty tho' the Grant be executed by the Statute of Uses which makes a Distress the proper remedy Mod. Rep. 223. IN Covenant the Case was this Charles Cook made a Iointure to Mary his Wife for life and died without Issue the Land descended to Thomas Cook his Brother and Heir who grants an Annuity or Rent Charge of 200 l. per
Toll c. which were first created by the King 9 Co. Abbot de Strata Marcella's Case So that this Toll is not become in gross by the dissolution whereupon Iudgment was given for the Defendant Sir William Turner's Case Amendment not after issue joyned DEbt qui tam c. for 100 l. against Sir William Turner being a Iustice of Peace in London for denying his Warrant to suppress a seditious Conventicle of one Mr. Turner in New-street This Cause was to be tried by Nisi prius this Term before the Chief Iustice And now the Plaintiff moved to amend one Word in the Declaration wherein he was mistaken for he had laid the Meeting to be at Turner's Mansion House and upon Enquiry he understood the place of Meeting was not at his Mansion House but at a little distance from it and so prayed the word Mansion might be struck out But the Chief Iustice said that after Issue joyned Curia and the Cause set down to be tried and this being a penal Statute no President could be shewn of an Amendment in such case and therefore would not make this the first and so Leave was given to the Plaintiff to discontinue upon payment of Costs Brown versus Johnson IN Accompt The Plaintiff declares against the Defendant Time where 't is made parcel of the issue not good for that upon the first of March 22 Car. 2. abinde to the first of May 27 Car. 2. he was his Bayliff and Receiver of 80 Piggs of Lead The Defendant pleads that from the said first day of March 22 Car. 2. to the first day of May 27 Car. 2. he was not the Plaintiffs Bayliff or Receiver of the said 80 Piggs of Lead hoc paratus est verificare To this the Plaintiff demurred and assigned specially for cause that the times from the first of March to the first of May are made parcel of the Issue which ought not to be because the Plaintiff in his Declaration must alledge a time for Form sake but the Defendant ought not to tye him up to such time alledged for he might have said he was not Bayliff modo forma And for this the Case of Lane and Alexander was cited where the Defendant by Ejectment makes a Title by Copy of Court Roll granted to him 44 Eliz. and the Plaintiff replies his Title by the like Grant 1 Junii 43 Eliz. The Defendant maintains his Barr and traverseth that the Queen 1 Junii 43 year of her Reign granted the said Land by Copy and upon Demurrer it was adjudged that the traversing of the day is matter of substance which being made part of the Issue is naught But on the other side it was objected that time is material and that in Actions of Accompt 't is proper to make it parcel of the Issue for a Man may be Bayliff for two but not for three years and a Release may be pleaded from such a time to such a time Fitz. Accompt 30. Rast Entry f. 8. 19 pl. 1. f. 20. pl. 6. f. 22. pl. 2. 1. Then Exceptions were taken to the Plea first for that the Plaintiff having charged the Defendant as Receiver of 80 Piggs of Lead the Defendant pleads and that he was not Receiver thereof but doth not say of any part thereof for which reason the Court held the Plea ill because he might retain 79 and yet not 80 Piggs but to plead generally ne unques Receptor is well enough though it was urged that if it had been found against him upon such an Issue that he had received any parcel of the Lead he should have accompted 24 H. 4. 21. 2 Roll. 3. 14. 32 H. 6. 33. Fitz. Accompt 16. Cro. Eliz. 850. Fitz. Accompt 14. Rast Entry 18 19 20. 2. The Defendant concludes hoc paratus est verificare whereas it should be de hoc ponit se super patriam but the Court doubted of this because it was not specially assigned Postea 3. The Plaintiff charged the Defendant as his Bayliff upon the first of March and the Defendant pleads that he was not his Bayliff from the first of March so he excludes that day and this the Court held to be incurable and likewise that the time ought not to be made parcel of the Issue 2 Sand. 317 318. and so Iudgment was given quod computer Abraham versus Cunningham Administrator sells a Term afterwards an Executor appears and renounces yet the Sale was adjudged void Jones 72. 1 Vent 303. IN a special Verdict in Ejectment the Case upon the Pleadings was Viz. Sir David Cunningham being possessed of a Term for years made his Will and therein appointed his Son Sir David Cunningham to be his Executor and dyed Sir David the Executor in the year 1663. made his Will also and therein appointed David Cunningham his Son and two others to be his Executors and dyed those two Executors dye and B. a Stranger takes out Administration cum Testamento annexo and continues this Administration from the year 1665. to the year 1671. in which time he made an Assignment of this Term to the Lessor of the Plaintiff for which he had received a thousand Pounds And in the year 1671. the surviving Executor of Sir David the Executor made Oath in the Archbishops Court that he never heard of his Testators Will 'till then nor ever saw it before and that he had not medled with the Estate nor renounced the Executorship 6 Co. Packmans Case Then a Citation goes to shew cause why the Administration should not be repealed and Sentence was given that it should be revoked upon which the Executor enters and the Lessor of the Plaintiff entred upon him This Case was argued by Saunders for the Plaintiff Ex parte Quer. and Levints for the Defendant And first it was said in behalf of the Plaintiff that the Authorities in the Books were strong on his side that the first Administration was well granted 'T is true if a Man make a Will and Administration is granted and that Will is afterwards proved such Administration is void as in Greysbrook and Foxes Case Pl. Com. But in this Case after the death of Sir David Cunningham the Executor his Testator is dead Intestate for to make an Executor there must be first the naming of him then there must be some concurring act of his own to declare his assent that he will take onus executionis upon him for no man can make another Executor against his will so that if after the death of the first Executor those other Executors appointed by him had made such a Declaration as this surviving Executor hath since done their Testator had dyed Intestate 7 E. 4. 12 13. The Executor is made by the Testator and the Ordinary is empowered by the Statute to make the Administrator where the person dies Intestate so that 't is plain there cannot be an Executor and Administrator both together If he who is
Witton versus Bye 45 Ed. 3. 8. 20 E. 4 13. Covevenant will lie upon the Words Yeilding and Paying If then here is a good Rent reserved the Wife who receives the Profits becomes Executrix de son tort and so is lyable to the payment It hath been held there cannot be an Executor de son tort of a Term but the Modern Opinions are otherwise as it was held in the Case of Porter and Sweetman Trin. 1653. in B. R. And that an Action of Debt will lie against him Indeed such an Executor cannot be of a Term in futuro and that is the Resolution in Kenrick and Burgesses Case Moor Rep. Where in Ejectment upon Not Guilty pleaded it appeared that one Okeham had a Lease for years of the Lands in question who dyed Intestate which Lease his Wife assigned by parol to Burgess and then she takes out Letters of Administration and assigns it again to Kenrick who by the Opinion of the Court had the best Title But if one enter as Executor de son tort and sell Goods the Sale is good which was not so in this Case because there was a Term in Reversion whereof no Entry could be made for which reason there could be no Executor de son tort to that and therefore the Sale to Burgess before the Administration was held void And that there may be an Executor de son tort of a Term there was a late Case adjudged in Trin. 22 Car. 2. between Stevens and Carr which was Lessee for years rendring Rent dies Intestate his Wife takes out Letters of Administration and afterwards Marries a second Husband the Wife dies and the Husband continues in Possession and receives the Profits It was agreed that for the Profits received he was answerable as Executor de son tort and the Book of 10 H. 11. was cited as an authority to prove it Pemberton Serjeant for the Defendant Ex parte Def. would not undertake to answer these Points which were argued on the other side but admitted them to be plain against him for he did not doubt but that Debt would lie upon the Contract where the whole Term was assigned and that there may be an Executor de son tort of a Term but he said that which was the principal point in the Case was not stirred The question was whether an Action of Debt will lie against the Defendant as Executor de son tort where there is no Term at all for 't is plain there was none in being in this Case because when the Lessee Re-demised his whole Term to the Lessor that was a Surrender in Law and as fully as if it had been actually surrendred and therefore this was quite different from the Case where Lessee for years makes an Assignment of his whole Term to a Stranger Debt will lie upon the Contract there because an Interest passes to him in Reversion and as to this purpose a Term is in esse by the Contract of the Parties and so it would here against the first Lessor who was Lessee upon the Re-demise but now because of the Surrender the Heir is intituled to enter and the Mother who is the Defendant enters in his Right as Guardian which she may lawfully do If therefore Debt only lies upon the Contract of the Testator as in truth it doth where the whole Term is gone the Plaintiff cannot charge any one as Executor de son tort in the debet and detinet And the whole Term is gon here by the Re-demise which is an absolute Surrender and not upon Condition for in such Case the Surrenderor might have entred for non-performance and so it might have been revived And of this Opinion was the whole Court in both points and would not hear any farther Argument in the Case the Plaintiff having no remedy at Law the Court told him that he might seek for relief in Chancery if he thought fit Harman's Case IN Covenant the breach assigned was that the Defendant did not repair He pleads generally quod reparavit de hoc ponit se super patriam this was held good after a Verdict Quadring versus Downs al' Wardship cannot be where there is no descent IN a Writ of right of Ward the Case was Viz Sir William Quadring being seised of Lands in Fee by Deed and Fine settles them upon his Son William and his Wife for their Lives the Remainder to the second Son in Tail with divers Remainders over The Grandfather dyes the Father and Mother dyes the eldest Son dyes without Issue and so the Land came to the second Son The Plaintiff intitles himself as Guardian in Socage to the Wardship both of the Person and Lands of the Infant whom the Defendant detained and Serjeant Newdigate for him demurred because where there is no descent there can be no Wardship for the second Son is in by purchase and not by descent for here is no mention of the Reversion in Fee and therefore it may be intended that it was conveyed away and besides if it should be intended to continue to Sir William Quadring the Grandfather after this Settlement yet it cannot be thought to descend to the Ward because 't is not said who was Heir for though it be said that the Father of the Ward was Son to Sir William yet 't is not said Son and Heir and of that Opinion was the whole Court in both points for there must be a descent or else there can be no Wardship and it doth not appear that any descent was here because 't is not said that the Reversion did descend nor who was Heir to Sir William which the Plaintiff perceiving prayed leave to amend and it was granted In this Case it was said at the Bar that one might be a Ward in Socage though he be in by Purchase for the Guardian is to have no profit but is only a Curator to do all for the benefit of the Ward and so there need be no descent as is necessary in the Case of a Ward in Chivalry for that being in respect of the Tenure the Guardian is to have profit The Lord Chief Iustice North said Nota. he knew where there was some doubt of the sufficiency of the Guardian in Socage that the Court of Chancery made him give good Security Harding versus Ferne. IN an Action of Assault Battery and Imprisonment Antea Anonymus 'till the Plaintiff had paid 11 l. 10 s. The Defendant pleads and justifies by reason of an Execution and a Warrant thereupon for 11 l. and doth not mention the 10 s. And upon demurrer for this Cause Iudgment was given for the Plaintiff upon the first opening because it appeared the Defendant took more than was warranted by the Execution Ellis versus Yarborough Sheriff of Yorkshire IN an Action of Escape the Plaintiff sets forth that the Defendant Arrested a Man upon a Latitat directed to him at the Suit of the Plaintiff Case lies not against
Profit it was answered That the Act took care that Men should not stop up their Chimnies when once made and that this Duty was paid for many Chimnies which were never used and what Profit can a Man have of a Chimny he never useth If there had been an Act that so much should be paid for every Window 't is all one whether it had been for profit or pleasure or whether the Window had been used or not and there is as much reason that a Man should pay for Houses never Inhabited as for such as have been Inhabited and are afterwards without Tenants This Act ought therefore to receive a favourable Construction the Preamble whereof mentions that it was for the encreasing of the Kings Revenue which is pro bono publico and which is for the Peace and Prosperity of the Nation and the protection of every single person therein and though a particular Inconvenience may follow the Party ought to submit When a Man builds a House he proposes a Profit and 't is not fit the Kings Duty should be contingent and depend till he has provided himself of a Tenant Object As to the other Objection that was much relied on viz. where the Act speaks of an Accompt to be given it mentions both Owner and Occupier but where it directs the Payment of the Duty the Occupier only is named by which it was inferred that he alone was chargeable Answ In 16 Car. 2. cap. 3. Owner Proprietor and Occupier are used promiscuously wherein it is provided that they shall not be charged unless within two years after the Duty accrued now if the Owner was not chargeable why is he mentioned there As to the second Point they conceived that the Duty being payeable to the King he had a remedy by distress before the Accompt was certified into the Exchequer for the Return was to inform the King what advantage he maketh of his Revenue and no Process issued upon it besides the Act vests the Duty in him from Lady-day 1662. And by reason of that he may distrain The King hath no benefit by returning of the Account that being only intended to prevent his being cheated so that 't is not to entitle but to inform him 't is only to return a just and true account not but that it may be levied and the King entitled before and 't is no inconvenience to the Subject if there be no such Account returned for if the Officer distrain for more Hearths than in truth there are the Subject has a proper remedy against him The King suffers when Returns are not made of such Duties as he ought to have for the support of his Dignity and because he is lyable to be defrauded in the managing of his Duty is it reasonable that he should lose all As to what was said of the Kings taking by matter of Record 't is true if he divest an Inheritance as in case of Attainder it must be by Record but here the very Duty is given to him by the Act it self which makes it a different Case If the King should be seised in Fee of a great Wast which happens to be improved by his Tenants and thereby Tythes become due it may be as well said that he shall have no Tythes without Record as to say he shall have no Hearth-Mony for Houses newly erected whereby his Revenue is increased For which Reasons Iudgment was prayed for the Defendant and upon the second Argument Iudgment was given accordingly for him Curia That empty Houses are subject and lyable to this Duty Astry versus Ballard IN an Action of Trover and Conversion for the taking of Coals upon Not-Guilty pleaded Grants must be taken according to common intendment Jones 71. the Iury found a special Verdict The Case was thus Viz. That one J. R. was seised in Fee of the Manor of Westerly and being so seised did demise all the Mesuages Lands Tenements and Hereditaments that he had in the said Manor for a Term of years to N. R. in which demise there was a recital of a Grant of the said Mannor Mesuages Lands Tenements Commons and Mines but in the Lease it self to R. the Word Mines was left out Afterwards the Reversion was sold to the Plaintiff Astry and his Heirs by Deed enrolled and at the time of this demise there were certain Mines of Coals open and others which were not then open and the Coals for which this Action of Trover was brought were digged by the Lessee in those Mines which were not open at the time of the Lease and whether he had power so to do was the Question It was said That when a Man is seised of Lands wherein there are Mines open and others not open and a Lease is made of these Lands in which the Mines are mentioned Antea 'T is no new Doctrine to say that the close Mines shall not pass Mens Grants must be taken according to usual and common intendment and when Words may be satisfied they shall not be strained farther than they are generally used for no violent Construction shall be made to prejudice a Mans Inheritance contrary to the plain meaning of the Words A Mine is not properly so called 'till it is opened 't is but a Vein of Coals before and this was the Opinion of my Lord Coke in point in his first Inst 54. b. Where he tells us 5 Co. 12. Sanders Case Roll. Abr. 2 part 816. that if a Man demises Lands and Mines some being opened and others not the Lessee may use the Mines opened but hath no power to dig the unopened Mines and of this Opinion was the whole Court and Iustice Twisden said That he knew no reason why my Lord Coke's single Opinion should not be as good an Authority as Fitzherbert in his Nat. Br. or the Doctor and Student Ipsley versus Turk IN a Writ of Error upon a Iudgment in an Inferiour Court What is admitted in pleading shall not be assigned for Error Jones 81. the Error assigned was That the Mayor who was Iudge of the Court did not receive the Sacrament at any Parish Church nor file any Certificate so that he was not Mayor and Iudgment being given against the Defendant before him it was therefore Coram non Judice like the Case of Hatch and Nichols Roll. Abr. 1 part tit Error 761. Where upon a Writ of Error brought upon a Iudgment in an Inferiour Court the Error assigned was that the Stile of the Court was Curia tent̄ coram J. S. Seneschallo who was not Steward and that was held to be an Error in fact But on the other side it was insisted that this was not Error because the Acts of the Mayor should not be void as to Strangers The Statute of 25 Car. 2. cap. 2. for preventing of dangers which may happen from Popish Recusants disables the Party who is not qualified according to the Act to hold an Office and if he execute the same afterwards
according to the computed or improved value and therefore he inclined that the Action would not lie The Exemplification of the Decree was offered to be read which being opposed Serjeant Maynard informed the Court that nothing was more usual than to read a Sentence in the Ecclesiastical Court or a Decree in Chancery as Evidence of the Fact It being allowed to be read the Council for the Defendant took notice that the Commission was therein mentioned which was returned into Chancery and burned when the Six Clerks Office was on fire in the year 1618. but a Duplicate thereof was produced which the Defendant had from the Heir of the Harveys and so the Survey was praied to be read which was opopsed by Sir William Jones for he said that it was no Duplicate the Commissioners Names being all written with one Hand and no proof being made that it was a true Copy of that which was returned he likewise observed upon the reading of the Decree that it was an Evidence for the Plaintiff because if there had been a setled Rule for payment of the Fines there had been no occasion to seek relief in Equity and that there was no reason that the Defendant should come into a Court of Law to prove such Settlement by a Decree in Chancery for if there be such a Decree his Remedy is proper there besides the Decree it self only mentions the years value which was to be setled by the Commissioners and which he said was never done so that the Decree which appointed the Commission was not compleated and therefore being but executory is of no force even in Equity The Court were doubtful in the matter and Baron Thurland said That no Action of Debt would lie for this Fine because it was neither upon the Contract nor as ex quasi contractu But as to that Serjeant Maynard answered That many Resolutions had been made in his time of Cases wherein the Old Books were silent Vpon the whole the Court thought this to be a proper Case for Equity and so directed a Iurour to be withdrawn which was accordingly done DE Term. Sanctae Trin. Anno 29 Car. II. in Communi Banco Addison versus Sir John Otway IN a special Verdict in Ejectione firmae A Parish and a Vill within the Parish of the same Name a Recovery is suffered of Lands in the Vill and in the Deed to lead the Uses the Parish is named they make but one Conveyance and the Lands in the Parish do pass Mod. Rep. 250. the Case was thus Viz. There was the Vill of Rippon and the Parish of the same Name and likewise the Vill of Kirkby and the Parish of the same Name in the County of York And Thomas Brathwaite being Tenant in Tail of the Lands in question lying in the said Parishes of Rippon and Kirkby did by Bargain and Sale convey the same lying as in truth they did in the Parishes of Rippon and Kirkby to the intent to make a Tenant to the Praecipe in order to suffer a Common Recovery and thereby he did Covenant to suffer the same which Recovery was afterwards suffered of Lands in Rippon and Kirkby but doth not say as he ought in the Parishes of Rippon and Kirkby and the Verdict in effect found That he had no Lands in the Vills but farther that it was the intent of the Parties that the Lands in the Parishes should pass and whether they should or not was the Question It was said for the Defendant That by this Indenture and Common Recovery the Lands which lie in the said Parishes shall pass 1. Supposing this to be in the Case of a Grant there if the Vill is only named yet the Lands in the Parish of the same Name shall pass because the Grant of every Man shall be taken strongest against himself Owen Rep. 61. So where part of the Lands lie in B. and the Grant is of all the Lands in D. all the Lands in the Parish of D. shall pass because in that Case the Parish shall be intended and if the Law be thus in a Grant a fortiori in the Case of a Common Recovery Postea Barker and Keat which is the Common Assurance of the Land 2. The Verdict hath found that the Defendant had no Lands in the Vills of Rippon and Kirkby and the Court will not intend that he had any there if not found so that nothing passes by the Recovery if the Lands in the Parishes do not pass which is contrary to the intention of the Parties and to the Rules of Law in the like Cases for if a Man deviseth all his Lands in Dale and hath both Free-hold and Lease-hold there by this Devise the Freehold only passes but if no Free-hold the Leases shall pass Cro. Car. 293. So adjudged in the Case of Rose and Bartlet for otherwise the Will would be void 3. The Parish and Vill shall be both intended to support a Trial already had as where a Venire facias ought to issue from the Parish of Dale and it was awarded from Dale generally 't is well enough * 1 Roll. Rep. 21 27 293. Hob. 6. 2 Cro. 263. 1 Roll. Rep. 27. A fortiori to support a Common Recovery which has always been favourably interpreted and yet a new Tryal will help in the one case but a Man cannot command a new Recovery when he will and therefore the Iudges usually give Iudgments to support and maintain Common Recoveries that the Inheritances of the Subject might be preserved for if there be Tenant in Tail the Reversion in Fee or if Baron and Feme suffer a Recovery this is a bar of the Reversion and the Dower and yet the intended Recompence could not go to either Pl. Com. 515. 2 Roll. Rep. 67. 5 Co. Dormer's Case Antea 4. The Iury have found that the intention of the Parties was to pass the Lands in the Parishes which Intention shall be equivalent to the Words Omitted And for that there is a notable Case in 2 Roll. Rep. f. 245. where the intent of the Parties saved an Extinguishment of a Rent The Case was A. makes a Lease for years rendring Rent and then grants the Reversion for 40 years to B. and C. which he afterwards conveyed to them and their Heirs by Bargain and Sale and covenanted to levy a Fine accordingly to make them Tenants to the Praecipe to suffer a Common Recovery to another Vse the Bargain Fine and Recovery were all executed and it was adjudged that they made all but one Conveyance and that the Reversion was not destroyed and by consequence the Rent not extinguished for though the Bargainor might intend to destroy the Reversion by making this Grant to them and their Heirs yet the Bargainees could never have such Intention and though they were now seised to another Vse yet by the Statute of Wills their former Right is saved which they had to their proper Vse and their intention being only to make a
upon the Statute and then the Defendant might have pleaded the Act of Indempnity of which he might have the benefit but if not he may be let into the Equity of the Statute of the 33 H. 8. cap. 39. which gives liberty to Purchasers to have contribution and to plead sufficient matter if they have any in discharge of the Debt Ex parte Quer. But on the other side it was said that the Replication was good for if the Sale was after his being Receiver though before he became indebted yet by the Statute of the 13 Eliz. the Lands are subject to a Debt contracted afterwards because it hath a Retrospect to the time he was first Receiver Pl. Com. 321. Dyer 160. By the Common Law both the Body and Lands of the Kings Debtor were lyable from the time he became indebted but because such Debtors oftentimes sold those Lands which they had whilst they were Officers and so the King was defeated therefore was this Statute made to supply that defect of the Common Law by which Statute all the Lands he had at any time during his continuance in the Office were made lyable And though it may be objected That because of this Inquisition the King is limited to a time Viz. that inquiry should be made what Lands Havers had in the 20th year of the King yet it was said the Inquiry may be general The Elegit anciently left out the time because the Law doth determine from what time the party doth become lyable so that the question is about the King's Title which if it appear to precede that of the Ter-tenant then the King's Hands are not to be amoved and thereupon Iudgment was prayed for him Bro. Prerogative 59. Curia adversare vult Barker versus Keat IN a Special Verdict in Ejectione firmae Reservation of a Pepper Corn a good consideration to raise an use to make a Tenant to the Praecipe Mod. Rep. 262 the Iury made a special Conclusion by referring to the Court whether there was a good Tenant to the Praecipe or not which was made by a Bargain and Sale but no Mony paid nor any Rent reserved but that of a Pepper Corn to be paid at the end of six Months upon demand and the Release and Grant of the Reversion thereupon was only for divers good Considerations The Question was if this Lease upon which no Rent was reserved but that of a Pepper Corn be executed by the Statue of Uses or not if it be Cro. Jac. 604. Jones 7. 1 Cro. 110. 5 Rep. 124. b. then there is no need of the Entry of the Lessee for the Statute will put him in actual possession and then the Inheritance by the Release or Grant of the Reversion will pass But if this Lease be not within the Statute because no Vse can be raised for want of a Consideration then it must be a Conveyance at the Common Law Lit. Sect. 465. Co. Lit. 46. b. and so the Lessee ought to make an actual Entry as was always usual before the making of the Statute Serjeant Waller and Maynard argued that here was no Consideration to raise an Vse for the reservation of a Pepper-Corn is no profit to the Lessor 't is not a real and good Rent For so small and trivial a matter is no Consideration for that which must be a good Consideration ought to be Mony or some other valuable thing Then this Conveyance is not executed by the Statute of Vses and if so 't is not good at the Common Law it being only a Lease for years and no Entry without which there can be no possession and if not then there can be no Reversion upon which the Release may operate 't is only an interresse termini and so was the Opinion of my Lord Coke since the Co. Lit. 270. making of this Statute 1 Leon. 194 195. And that no Vse was raised here the Case of my Lord Paget was cited to which this was compared My Lord being seised in Fee Covenanted to stand seised to the Vse of Trentham and others in consideration of payment of his Debts out of the Profits of his own Estate this was adjudged a void Vse because there was no consideration on Trentham's part to raise it the Mony appointed to be paid being to be raised out of the Profits of my Lords Estate The Words of the Lease are Demise Grant c. which are Words at the Common Law Co. Lit. 45. b. and 't is not possible that a future executory Consideration should raise a present Vse for the Pepper Corn is not to be paid till the end of six Months and as this Consideration is executory so it is contingent too for the Lessor might have released before the expiration of the six Months If the Case of * Cro. Jac. 604. pl. 32. Lutwitch and Mitton be objected where it was resolved by the two Chief Iustices and Chief Baron that upon a Deed of Bargain and Sale of Lands where the Bargainee never entred and the Bargainor reciting the Lease did grant the Reversion expectant upon it Cro. Car. 110 400. that this was a good grant of the Reversion from which the Possession was immediately divided and was executed and vested in the Bargainee by virtue of the Statute of Vses This is no Objection to the purpose because in that Case the Bargainor was himself in actual possession So that if there be no good Tenant to the Precipe in this Case though all that joyn in it are Estopped to say so yet the Tenant in Tail who comes in above is not barred 5 H. 5. 9. But on the othe side it was said that the Lessee was in possession by the Statute for the Word Grant being in the Lease and the reservation being a Pepper Corn that will amount to a Bargain and Sale though it hath not those precise words in it 8 Co. 94. Pl. Com. 308. Dyer 146. b. contra But if it should not yet another Vse may be averred than what is in this Lease like Bedel's Case 7 Co. 40. b. Where a Man in consideration of Fatherly Love to his eldest Son did covenant to stand seised to the Vse of him in Tail and afterwards to the use of his second Son there though the consideration respected his eldest Son only in Words yet a consideration which is not repugnant to it may be averred and though an Entry is not found yet it shall not be intended since the Iury have not found the contrary North Chief Iustice At first when this sort of Conveyance was used the Lessee upon the Lease for a year did always make an actual Entry and then came the Release to convey the Reversion but that being found troublesome the constant Practice was to make the Lease for a year by the Deed of Bargain and Sale for the consideration of five shillings or some other small sum and this was held and is so still to be good
without any actual Entry 2 Cro. 604. and the Bargaineé thereby is capable of a Release though he cannot bring an Action of Trespass without Entry for when Mony is the Consideration of making the Bargain and Sale 't is executed by the Statute of Vses and so the Release upon it is good but if the Deed be not executed 't is otherwise But this being to support a Common Recovery Antea Addison and Otway was to be favoured and therefore the Court took time to consider till the next Term and then The Chief Iustice said That if a real Action be brought against A. who is not Tenant to the Praecipe and a Recovery be had against him the Sheriff can turn him out who is in possession but if he who is not in possession comes in by Voucher he is estopped to say afterwards that he was not party to the Writ so that he who is bound must be Tenant or Vouchee or claim under them Conveyances have been altered not so much by the Knowledge of the Learned as by the Ignorance of Vnskilful Men in their Profession The usual Conveyance at Common Law was by Feoffment to which Livery and Seisin were necessary the Possession being given thereby to the Feoffee Antea Lord Salisburies Case but if there was a Tenant in Possession and so Livery could not be made then the Reversion was granted and the particular Tenant always attorned and upon the same reason it was that afterwards a Lease and Release was held a good Conveyance to pass an Estate but at that time it was made no question but that the Lessee was to be in actual Possession before the Release Afterwards Vses came to be frequent and Settlements to Vses were very common by reason whereof many inconveniencies were introduced to prevent which the Statute of the 27th of H. 8. was made by which the Vse was united to the Possession for before that Statute Vses were to be executed according to the Rules of Equity but now they are reduced to the Common Law and are of more certainty and therefore are to be construed according to the Rules of Law At the Common Law when an Estate did not pass by Feffoment the Lessor or Vendor made a Lease for years and the Lessee actually entred and then the Lessor granted the Reversion to another and the Lessee attorned and this was good Afterwards when an Inheritance was to be granted then also was a Lease for years usually made and the Lessee entred as before and then the Lessor released to him and this was good But after the Statute of Vses it became an Opinion That if a Lease for years was made upon a valuable Consideration a Release might operate upon that without an actual Entry of the Lessee because the Statute did execute the Lease and raised an Vse presently to the Lessee Sir Francis Moor Serjeant at Law was the first who practised this way Nota. But because there were some Opinions that where Conveyances may enure two ways the Common Law shall be preferred unless it appear that the party intended it should pass by the Statute thereupon the usual course was to put the Words Bargain and Sale into the Lease for a Year to bring it within the Statute and to alledge that the Lease was made to the intent and purpose that by the Statute of Vses the Lessee might be capable of a Release but notwithstanding this Mr. Noy was of the Opinion That this Conveyance by Lease and Release could never be maintained without the actual Entry of the Lessee This Case goes farther than any that ever yet came into Iudgment for Mony is not mentioned here to be the Consideration or any thing which may amount to it unless the Pepper Corn which he held to be a good Consideration The Lease and Release are but in nature of one Deed and then the intent of the Parties is apparent that it should pass by the Satute and eo instanti that the Lease is executed the Reservation is in force The Case put by Littleton in Sect. 459. is put at the Common Law and not upon the Statute where he saith That if a Lease be made for years and the Lessor releaseth all his Right to the Lessee before Entry such Release is void because the Lessee had only a Right and not the Possession which my Lord Coke in his Comment upon it calls an interesse termini and that such Release shall not enure to enlarge the Estate without the Possession which is very true at the Common Law but not upon the Statute of Vses And therefore Iudgment was given by the whole Court Judgment that the Word Grant in the Lease will make the Land pass by way of Use that the Reservation of a Pepper Corn was a good consideration to raise an Vse to support a Common Recovery that this Lease being within the Statute of Vses there was no need of an actual Entry to make the Lessee capable of the Release for by vertue of the Statute he shall be adjudged to be in actual possession and so a good Tenant to the Praecipe and Iudgment was given accordingly in Michaelmas Term following Kendrick versus Bartland THE Plaintiff brought an Action on the Case for stopping the Water going to his Mill with a Continuando c. Continuando laid after a Nusance abated yet Damages shall be recovered for what was done before The Defendant pleads that the stopping was contra voluntatem and that tali die which was betwéen the first and the last day laid in the Continuando the Plaintiff himself had abated the Nusance and so he had no cause of Action To this Plea the Plaintiff demurred and Serjeant Baldwyn who argued to maintain the Plea did not relye upon that part of it where the Defendant saith that the stopping of the Water was involuntary because he doing the thing it could not be contra voluntatem but the Question would be whether the Plaintiff had any cause of Action to recover damages after the Abatement of the Nusance and he said that he had abated it before the Action brought and counted for damages after the Abatement for which he had no Cause of Action and this he had confessed by his Demurrer But the Court were of Opinion that it was not a good Plea and took this difference between a Quod permittat or an Assize for a Nusance and an Action on the Case for the same for the end of a Quod permittat or an Assise was to abate the Nusance 2 Cro. 207 618 but the end of an Action on the Case was to recover damages therefore though the Nusance was removed the Plaintiff is intituled to his damages that accrued before and 't is usual in Actions of this nature to lay the Sid. 319. Continuando for longer time than the Plaintiff can prove but he shall have damages for what he can prove and so here he shall recover the
damages which he sustained before the Abatement And thereupon Iudgment was given for the Plaintiff Walwyn versus Awberry and others Tythes of a Rectory shall not be sequestred for Repairs of the Chancel Mod. Rep. 258. TRespass for the taking and carrying away of four Loads of Wheat and four Loads of Rye c. The Defendants justifie for that the Plaintiff is Rector of the Rectory impropriate of B. and that the Chancel was out of Repair and that the Bishop of Hereford after Monition first given to the Plaintiff had granted a Sequestration of the Tythes of the Rectory for the repairing the Chancel and that the Defendants were Churchwardens of the Parish and that the particulars mentioned in the Declaration were Tythes belonging to the Plaintiff as Rector aforesaid and that by vertue of the said Commission they took the same for repairing of the said Chancel and that for these Tythes so taken they had accounted to the Bishop To this the Plaintiff demurred The Question was whether an Impropriate Rectory be chargeable for the Repairs of the Chancel by the Sequestration of the Tythes by the Bishop and those who argued in the negative for the Plaintiff could not deny but that Church Reparations did belong to the Ecclesiastical Courts and that as often as Prohibitions have been prayed to that Iurisdiction Consultations have been as often granted notwithstanding in many Cases the Rates for such Reparations have been very unequally imposed and the reason is because those Courts have original Iurisdiction of the Matter It was admitted also that Parishioners are bound to repair the Church and the Rector the Chappel and in this respect of their Lands and therefore if a Man hath Lands in one Town and dwell in another he shall be contributory to the Reparation of that Church where his Lands are and not where he inhabits And that all this was by the common Custom of England long before the making of the Statute of 31 H. 8. cap. 13. by which Parsonages were made Lay Fees but then it must be understood that this was no real Duty incumbent upon them but was a personal burden for which every Parishioner was chargeable proportionably to the quantity of Land which he held in the Parish in which Case if he refused to be contributory the Ordinary did never intermeddle with the possessions but always proceeded by Ecclesiastical Censures as Excommunication of the Party refusing which is the proper remedy But in case of an Appropriation in the Hands of an Ecclesiastical Corporation as Dean and Chapter c. there if a Refusal be to contribute to the Repairs the Ordinary may sequester and the reason is because a Corporation cannot be excommunicated The Ordinary may also sequester in things of Ecclesiastical Cognizance as if the King do not present so he may take the Profits within the six Months that the Patron hath to present and apply them to the Pastor of the Church by him recommended because the Ordinary hath a provisional Superintendency of the Church and there is a necessity that the Cure should be supplyed until the Patron doth present and this is a kind of Sequestration But in some Cases the Ordinary could not sequester the Profits belonging to Spiritual Persons though he was lawfully entituled to them for a particular time and purpose For by the Statute of 13 Eliz. cap. 20. 't is Enacted That if a Parson make a Lease of his Living for a longer time than he is resident upon it that such Lease shall be void and he shall for the same lose one years Profits of his Benefice to be distributed by the Ordinary amongst the Poor of the Parish Now he had no Remedy to recover the Years Profits but in the Ecclesiastical Court he could not sequester and to give him Authority so to do a supplemental Statute was made five years afterwards in the 18th year of the Queens Reign cap. 11. by which Power is given him to grant a Sequestration so that if he could not sequester in a Case of which he had a Iurisdiction by a precedent Statute à fortiori he cannot in a Case exempted as this is from his Iurisdiction But admitting a Sequestration might go then this inconveniency would follow that if other Lands should be sequestred for the same purpose the former Sequestration could not be pleaded to discharge them because the interest is not bound thereby no more than a Sequestration out of Chancery is pleadable to an Action of Trespass at the Common Law This Case cannot be distinguished from that of Jefferies in 5 Co. and from what the Civilians testified to the Court there viz. That the Churchwardens and greater part of the Parishioners upon a general warning given may make a Taxation by Law but the same shall not charge the Land but the person in respect of his Land so that 't is he that is chargeable and may be excommunicated in case of refusal to contribute but his Lands cannot be sequestred because 't is not the business of the Ordinary to meddle with the temporal possessions of Lay-men but to proceed against them by Ecclesiastical Censures and the Parishioners Lands may be as well sequestred for the Repairs of the Church as the Lands of the Impropriator for the Repairs of the Chappel for which Reasons it was held that a Sequestration would not lie Ex parte Def. But on the other side it was said that before the making of the Statute the Rector was to repair the Chancel under pain of Sequestration which the Ordinary had power to grant in case of refusal and that his Authority in many Cases was not abridged by the Statute The Case of * 2 Cro. 518. Parry and Banks was cited where in the 24th Year of H. 8. a Parsonage was appropriated to the Deanary of St. Asaph and a Vicaridge endowed which the Bishop dissolved in the 24th Year of Queen Elizabeth and Parry pretending that notwithstanding this Dissolution it was in the Kings Hands by lapse obtained a Presentation and it was resolved that after the Statute of Dissolutions which made Parsonages Lay Fees the Ordinary could not dissolve the Vicaridge where the Parsonage was in a Temporal Hand but being in that Case in the Hands of the Dean he might The Rector is to repair the Chancel because of the Profits of the Glebe which is therefore Onus reale impositum rebus personis and of that Opinion was Johannes de Atkin who wrote 100 years before Lynwood where in fol. 56. he saith That if the Chancel was out of repair it affected the Glebe And that the Constitution of the Canon Law is such will not be denied Vaugh. 327. and if so Canons being allowed are by use become parcel of the Common Law and are as much the Law of the Kingdom as an Act of Parliament for what is Law doth not suscipere magis aut minus Several Cases were put where the Bishop doth intermeddle with the
gave him the Goods at London by force whereof he took them at London absque hoc that he took them at Coventry because by such Gift or Delivery he might justifie the taking any where as well as where the delivery was made 2. That the Declaration was ill for the Agreement was to deliver the Goods at London and the breach was that he left them at London and so but argumentative Aston pl. Red. 62. Herns Pleader 76. Brownl Pleadings 139. But the Court were of Opinion that the Declaration was good and the Plea was naught in substance but if it had been good the Traverse notwithstanding had been ill because the justification was not local 2 Cro. 45 372 though Iustice Scroggs was of a contrary Opinion And Iudgment was given for the Plaintiff Nota Visne altered Propter necessiatem The Plaintiff had leave given by the Court to alter the Visne from London to Middlesex because all the Sittings in London were on a Saturday and his Witness was a Jew and would not appear that day Mendyke versus Stint PRohibition was prayed to the Sheriffs Court of London Prohibition to the Sheriffs Court after Verdict and Judgment comes too late The Suggestion was That the Plaintiff was sued in that Court in an Action on the Case and sets forth the Proceedings at large that there was a Verdict against him there and averred that the Contract upon which he was sued there revera was made in Middlesex and so the cause of Action did not arise within their Iurisdiction and upon Demurrer to the Prohibition Serjeant Pemberton argued 2 Inst 229 243 601. West 1. c. 35. F. N. B. 45. b. Hob. 106. 1. That a Prohibition doth lie to any Court as well Temporal as Spiritual where such Courts exceed their Bounds for both those Iurisdictions are united to the Imperial Crown it may be granted to the Dutchy Court if they hold Plea of Lands not parcel of the Dutchy 2. Though the Iury have here found that the Defendant assumpsit modo forma yet such finding as to time and place is not material nor is it any Estoppel in a new Action laid in another County to aver that it was for the same thing 'T is true both time and place may be made material by pleading and so it had been in this Case if the Iury had found the place precisely for it would have been an Estoppel The Verdict therefore is nothing and all they have done is coram non Judice The Case of * Antea Squib and Holt. Squib and Hole he cited as an Authority in point where it was adjudged no Escape in the Officer to let a Man at Liberty who was in Execution upon a Bond sued in an Inferior Court the Bond not being made within the Iurisdiction thereof Ex parte Def. But Maynard Dolben Goodfellow and Sympson Serjeants contra They agreed that where it appears by the Plaintiffs Libel that the Court had no Iurisdiction there a Prohibition lies at any time but if what is in the Declaration is laid infra jurisdictionem there the Party must plead extra jurisdictionem and if they refuse to plead to the Plea a Prohibition will lie after Sentence But here is an Action on the Case brought of which the Sheriffs Court can hold Plea and which is laid to be infra jurisdictionem and not denied by the Plaintiff in his Plea and therefore now after Verdict and Iudgment he comes too late for a Prohibition and upon this difference Prohibitions have been usually either granted or denied to the Spiritual Courts Though the Court hath not cognisance of the Cause yet the Proceedings are not coram non Judice for if it be alledged to be within the Iurisdiction and the Defendant takes no exception to it and then Sentence is given against him he hath there by admitted the Iurisdiction So where a Man sued for a Legacy in the Prerogative Court where the Will was proved Stiles 45. by the Opinion of Rolls C. J. 2 Roll. Abr. 318. and Sentence given and an Appeal to the Delegates and Sentence affirmed and then a Prohibition granted but without notice upon the Statute of 23 H. 8. cap. 9. for that the Parties lived in another Diocess but the Plaintiff having allowed the Iurisdiction in all the former proceedings though the Prohibition was granted the Court would not compel the Party to appear and plead but granted a Consultation Cro. Car. 97. Smith versus the Executors of Pondrel In Hillary-Term 1675. in B.R. between Spring and Vernon and in Michaelmas-Term in 22 Car. 2. B. R. Buxton's Case and in Hillary Term the 22 23 Car. 2. in the same Court between Cox and St. Albon Prohibitions were denied after the Iurisdiction adadmitted by Pleading Mod. Rep. 81. The Chief Iustice Wyndham and Atkyns upon the first Argument enclined that a Prohibition ought to be granted because the admittance of the Party cannot give a Iurisdiction where originally there was none but afterwards they were all of Opinion That the Prohibition should not go but said that the Plaintiff in the Inferiour Court ought to have been Non-suited if it appeared upon the Evidence that the Cause of Action did arise extra jurisdictionem In this Case these things were agreed by the Court. 1. Sid. 151. That if any matter appears in the Declaration which sheweth that the Cause of Action did not arise infra jurisdictionem there a Prohibition may be granted at any time 2. If the subject matter in the Declaration be not proper for the Iudgment and determination of such Court there also a Prohibition may be granted at any time 3. If the Defendant who intended to plead to the Iurisdiction is prevented by any Artifice as by giving a short day or by the Attornies refusing to plead it c. or if his Plea be not accepted or is over-ruled in all these Cases a Prohibition likewise will lie at any time And the Chief Iustice and Wyndham Iustices were of Opinion that after the Defendant had admitted the Iurisdiction by pleading to the Action especially if Verdict and Iudgment pass the Court will not examine whether the Cause of Action did arise out of the Iurisdiction or not But Atkyns and Scroggs Iustices said nothing to this last point but that many times an advantage given by the Law was lost by coming too late and instanced that a Visne may be changed in time but not if the Party come too late so if the time of the promise be laid above six years from the time of the Action brought if the Statute of Limitations be not pleaded the Defendant cannot take afterwards advantage of it Whereupon a Prohibition was denied and Iudgment was given for the Defendant Birch versus Wilson Plea tho' it amount to a general Issue if it doth disclose matter of Law besides it shall not be demurred unto IN an Action on the Case the Plaintiff declared
reason alone the Plaintiff had no cause of Demurrer for the Defendant may well disclose the matter of Law in Pleading which is a much cheaper way than to have a Special Verdict and that this is on the same reason of giving of colour but if the matter by which the Defendant justifies be all matter of Fact and proper for the Tryal of a Iury then the Dfendant ought to plead the General Issue And as to the Matter of the Plea the Chief Iustice and Wyndham Iustice held it to be good for the Common which was pleaded was a Common by Grant and not argumentatively pleaded for if the Defendant had pleaded an express Grant of Common in those two places and the Plaintiff had demanded Oyer of the Deed it would have appeared that there was no such Deed and this had been a good cause of Demurrer If this Plea should not be good it would be very mischievous to the Defendant for there being a perpetual Vnity as to the Freehold there can be no Prescription to the Common but there being a constant enjoyment thereof by the Tenants and so a perpetual Vsage and a Grant made referring to that Vsage 't is well enough And since whilst the Lands were in possession of the Lord the Commoners could not complain of a Surcharge why should they if he grant the Premisses the Granteé being in loco c. In the Case of the King a Grant of tot talia Libertates Privilegia quot qualia the Abbot lately had 9 Co. 23. Abbot de Strata Marcella was held good by such general Words Here the Lord Paget granted to the Defendant that which the Lessées had before viz. that Common which the Tenants had time out of mind and it cannot be conceived but that the Tenants had a Right for as a Tort cannot be presumed to be from time immemorial so neither shall it be intended that the Lord gave only a Licence and permitted his Tenants to enjoy this Common But Iustice Atkins was of Opinion that the Plea was not good he said he knew not by what Name to call this Common for it was no more than a Permission from the Lord that the Tenants might put their Cattle into his Freehold or a Connivance at them for so doing and if it be taken as a new Grant then nothing can pass but the Surplus for the Lord cannot derogate from his former Grant and the new Grantee shall not put in an equal proportion with him who hath the Prescription for if he may then such Prescription would be quite destroyed by such puisne Grant for as the Lord might grant to one so he might to twenty and then there would not be sufficient Common left for him who prescribes to the Right So that he conceived that the Defendant had no Right of Common or if he had any it would not be till after the Right of the Plaintiff was served and he said that Vsage shall not intend a Right but it may be an Evidence of it upon a Tryal But if there had been an Vsage 't is now lost by the Vnity of the Possession and shall not be revived by the new Grant like the Case of Massam and Hunter Yelv. 189. there was a Copyholder of a Messuage and two Acres in Feé which the Lord afterwards granted and confirmed to him in Fee cum pertinentiis it was adjudged that though the Tenant by Vsage had a Right to have Common in the Lord's Wast yet by this new Grant and Confirmation that Right was gone the Copyhold being thereby extinguished for the Common being by Vsage and now lost these Words cum pertinentiis in the new Grant will not revive it But notwithstanding Iudgment by the Opinion of the other three Iustices was given for the Defendant Week's Case A Prohibition was prayed to the Ecclesiastical Court at Bristol the Suggestion was that he was excommunicated for refusing to answer upon Oath to a Matter by which he might accuse himself viz. to be a Witness against another that he himself was present such a day and saw the other at a Conventicle which if he confessed they would have recorded his Confession of being present at a Meeting and so have proceeded against him The Court granted a Prohibition but ordered him to appear in the Ecclesiastical Court to be examined as to the other persons being there Anonymus A Man wins 100 l. of another at play Gaming not within the Statute where the Security is given to a third person the Winner owed Sharp 100 l. who demanded his Debt the Winner brought him to the other of whom he won the Mony at Play who aknowledged the Debt and gave Sharp a Bond for the payment of the 100 l. who not being privy to the Matter or knowing that it was won at Play accepted the said Bond and for default of payment puts it in Suit the Obligor pleads the Statute of Gaming The Plaintiff in his Replication discloseth the Matter aforesaid and saith that he had a just Debt due and owing to him form the Winner and that he was not privy to the Monies being won at Play c. and that he accepted of the said Bond as a Security for his Debt and the Defendant demurred And the Court were all of Opinion Hill and Phesant Antea that this Case was not within the Statute the Plaintiff not knowing of the Play and though it be pleaded that the Bond was taken pro Securitate and not for satisfaction of a just Debt it was held well enough like the Case of Warns and Ellis Yelv. 47. Warns owed Alder 100 l. upon an usurious Contract and Alder owed the Plaintiff Ellis 100 l. for which they were both bound and in an Action of Debt brought upon this Bond Warns pleads the Statute of Vsury between him and Alder and Ellis replyed as the Plaintiff here and upon a Demurrer it was adjudged for the Plaintiff by thrée Iudges because the Plaintiff had a real Debt owing him and was not privy to the Vsury And upon this Case the Court relyed and said the Reason of it governed this Case at the Barr whereupon Iudgment was given for the Plaintiff Tissard versus Warcup INdebitatus Assumpsit for 750 l. laid out by the Plaintiff for the use of the Defendant Vpon Non assumpsit pleaded there was a Tryal at the Barr and the Evidence was that the Defendant and another now deceased farmed the Excise that the Mony was laid out by the Plaintiff on the behalf of the Defendant and his Partner and that the Defendant promised to repay the Mony out of the first Profits he received Curia And by the Opinion of the whole Court this Action would not lie 1. Two Partners being concerned the Action cannot be brought against one alone he ought in this Case to have set out the death of the other But if Iudgment be had against one the Goods in Partnership may be
particular Estate to support it for it shall descend to the Heir till the Contingency happen 't is not like a Remainder at the Common Law which must vest eo instanti that the particular Estate determines but the Learning of Exeecutory Devises stands upon the Reasons of the old Law wherein the intent of the Devisor is to be observed For when it appears by the Will that he intends not the Devisee to take but in futuro and no disposition being made thereof in the mean time it shall then descend to the Heir till the Contingency happen but if the intent be that he shall take in praesenti and there is no incapacity in him to do it he shall not take in futuro by an executory Devise Sid. 153. pl. 2. A Devise to an Infant in ventre sa mere is good and it shall descend to the Heir in the mean time for the Testator could not intend he should take presently he must first be in rerum natura 3 Co. 20. a. 1 Inst 378. a. If an Estate be given to A. for Life the Remainder to the right Heirs of B. this is a contingent Remainder and shall be governed by the Rules of the Law for if B. dye during the Life of A. 't is good but if he survive 't is void because no Body can be his right Heir whilst he is living and there shall be no descent to the Heir of the Donor in the mean time to support this contingent Remainder that so when B. dies his right Heirs may take In this Case a Fée did vest in Benjamin presently and therefore after his death without Issue the Defendant is his Heir and hath a good Title if not as Heir at Law yet she may take by way of Executory Devise as Heir of the Body of her Father which though it could not be whilst he was living because nemo est haeres viventis yet after his death she was Heir of his Body and was then of Age at which time and not before she was to take by the Will That Elizabeth the general Heir had only an Estate for years till Benjamin should or might be of Age And so by the Opinion of the whole Court Iudgment was given for the Defendant Evered versus Hone. SPecial Verdict in Ejectment wherein the Case was thus viz. A Man hath Issue two Sons Thomas his eldest and Richard his youngest Son Thomas hath Issue John Richard hath Issue Mary The Father devised Lands to his Son Thomas for Life Constructi-of Words in a Devise and afterwards to his Grandson John and the Heirs Males of his Body and if he die without Issue Male then to his Grandaughter Mary in Tail and charged it with some Payments in which Will there was this Proviso viz. Provided if my Son Richard should have a Son by his now Wife Margaret then all his Lands should go to such first Son and his Heirs he paying as Mary should have done Afterwards a Son was born and the Question was whether the Estate limited to Thomas the eldest Son was thereby defeated And the Court were all clear of Opinion that this Proviso did only extend to the Case of Mary's being intituled and had no influence upon the first Estate limited to the eldest Son Anonymus IN the Exchequer Chamber before the Lord Chancellor Executor of an Executor de son tort not liable at Law the Lord Treasurer and two Chief Iustices the Case was thus viz. The Plaintiff had declared against the Defendant as Executor of Edward Nichols who was Executor of the Debtor The Defendant pleads that the Debtor died intestate and Administration of his Goods was granted to a Stranger absque hoc that Edward Nichols was ever Executor but doth not say or ever administred as Executor for in truth he was Executor de son tort The Plaintiff replies that before the Administration granted to the Stranger Edward Nichols possessed himself of divers Goods of the said Debtor and made the Defendant Executor and dyed and the Defendant demurred and Iudgment was given for the Plaintiff but reversed here for an Executor of an Executor de son tort is not lyable at Law though the Lord Chancellor said he would help the Plaintiff in Equity But here Administration of the Goods of the Debtor was granted before the death of the Executor de son tort so his Executorship vanished and nothing shall survive The Lady Wyndham's Case IF Flotsam come to land and is taken by him who hath no Title the Action shall not be brought at the Common Law and no Proceedings shall be thereon in the Court of Admiralty for there is no need of Condemnation thereof as there is of Prizes By the Opinion of the whole Court of Common Pleas. Rose versus Standen Action where misconceived by the Plaintiff and Verdict against him no Barr to a new Action IN Accompt for Sugar and Indigoe the Defendant pleaded that the Plaintiff brought an Indebitatus Assumpsit a quantum meruit and an insimul computasset for 100 l. due to him for Wares sold to which he pleaded Non assumpsit and that there was a Verdict against him and then averrs that the Wares mentioned in that Action are the same with those mentioned here in the Action of Accompt The Plaintiff demurred and it was said for him that he had brought his former Action on the Case too soon for if no Accompt be stated the Action on the Case on the Insimul computasset will not lye and so the former Verdict might be given against him for that Reason Ex parte Def. But on the contrary the Defendant shall not be twice troubled for the same thing and if the Verdict had been for the Plaintiff that might have been pleaded in Barr to him in a new Action Curia 2 Cro. 284. But the Court were of another Opinion that this Plea was not good and that if the Plaintiff had recovered it could not have been pleaded in Barr to him for if he misconceives his Action and a Verdict is against him and then brings a proper Action the Defendant cannot plead that he was barred to bring such Action by a former Verdict Antea Putt and Roster Postea Rosal and Lamper Ante. because where 't is insufficient it shall not be pleaded in Barr as in Debt upon Bond the Defendant pleaded another Action upon the same Bond and the Iury found Non est factum the Entry of the Verdict was that the Defendant should recover damages eat inde sine die but not quod Querens nil capiat per Breve so no Iudgment to barr him 2 Cro. 284. But pending one Action another cannot be brought for they cannot both be true If no Accompt be stated the Action on the Case upon an Insimul computasset would not lye the Insimul computasset implies an Accompt and upon Non assumpsit pleaded the Defendant might have given payment in Evidence and for that
Where 't is good without the word tunc where not 129 Of words where the Pronoun pro makes the Contract conditional 33 34 F. Factor WHere he cannot sell but for ready Mony 100 101 Factum valet quod fieri non debet 194 Failure Of Record certified 246 Feoffment To Uses the Estate is executed presently 208 209 Fine Of Lands in a Lieu conus good 49 In a Scire facias to have such Fine excuted the Vill must be named 48 Good by Estoppel levied by a Remainder man in Tail 90 No Uses can be declared of such Fine ibid. Fine sur concessit the nature and effect of it 110 111 112 By such a Fine nothing shall pass but what lawfully may 111 Fines shall work a disseisin where they can have no other interpretation 112 Fines in Criminal Cases must be with Salvo contenemento 150 Flotsam Where it shall be sued for at Common Law and not in the Admiralty 294 Forbearance And doth not say from the making of the promise hucusque held good 24 Formedon In Descender the difference in pleading between that and a Formedon in Remainder or Reverter 94 25 Fraction Where an Estate shall pass by Fractions where not 114 115 G. Gaming WHat Acts amount to make it penal within the Statute 54 Not within the Statute where the Security is given to a third person 279 Grant of the King Where a false recital shall not make it void 2 3 Where the first description is full the misrecital afterwards shall not make it void 2 3 4 He may grant what he hath not in possession 107 Where words shall be rejected rather than his Grant shall be void ibid. Where an Advowson passeth though not named 2 Where a thing will pass by general words ibid. Misrecital where it doth not concern his Title shall not make the Grant void 2 3 Grant of a common Person Of the next Avoidance where it shall not bind the Successor 56 Must be taken according to usual and common intendment 193 Grant where the word in a Deed will make a thing pass by way of Use 253 Guardian In Socage where a doubt is of his sufficiency he may be compelled to give Security 177 H. Harmless vide Condition COndition to save harmless the Plea indempnem conservavit generally is not good 240 305 Habeas Corpus Cannot be granted by the Court of Common Pleas in Criminal Cases 198 199 306 Heir Where he takes by the Will with a Charge he comes in by Purchase and not by Descent and the Lands shall not be Assets 286 Where a general Replication to Riens per descent is good 50 51 Where he shall have a thing though not named 93 Hors de son Fee When to be pleaded 103 I. Ieofails THE Statute of 16 and 17 Car. 2. helps a misrecital in a proper County but not where the County is mistaken 24 An immaterial Issue not arising from the matter is not helped after a Verdict 137 Inducement Not such certainty required as in other Cases 70 Indebitatus Assumpsit Where it will not lie for want of Privity 262 263 Imparlance Tout temps prist not good after an Imparlance 62 Implication Where a Man shall have an Estate for Life by Implication 208 Imprisonment False Imprisonment will not lye against a Judge for committing of a Jury Man for finding against Evidence 218 It lies not against an Officer for refusing Bail but a special Action on the Case lies against the Sheriff for it 32 Information Upon the Statute of Philip and Mary for taking away a Maid unmarried within the Age of sixteen years 128 It will not lie where the Punishment is executed by the Statute 302 Infant When he may make a Will 315 Interest Where 't is vested in the King 53 Where it differs from an Authority 79 What words give an Interest 80 81 Where the word Interest signifies the Estate in the Land 134 Intention Of the Parties where to be considered 76 77 80 111 116 234 280 281 310 Where a thing shall be intended and where not 227 280 282 Grants where they shall be taken according to common intendment 193 Ioynder in Action Covenant to two not to do a thing without their consent one may bring the Action 82 Issue Where Time shall be made parcel of the Issue 145 Iudge and Iudgment Judge cannot fine a Jury for finding against Evidence 218 Action will not lie against him for what he doth judicially though erroneously 221 Judgment may be avoided by Plea without a Writ of Error 308 Iustification Vide Pleading Where 't is local you must traverse both before and after 68 Under a Lease for the Life of another Man and doth not averr that the Life is in being ill 93 Where 't is not local a Traverse makes the Plea naught 270 271 By vertue of a particular Estate you must shew the commencement of it 70 Where it is general and yet good 144 In Assault Battery and Wounding and saith nothing to the Wounding not good 167 Of a Servant by Command of his Master and good ibid. In Assault Battery and Imprisonment for 11 l. 10 s. the Defendant justifies by a Warrant for the 11 l. and saith nothing of the 10 s. not good upon Demurrer 177 Where 't is but of part the general words Quoad residuum transgressionis will not supply the rest 259 K. King THE Defendant cannot justifie in a Scandalum Magnatum brought upon the Statute of R. 2. because the King is a Party tam pro Domino Rege quam pro seipso 166 Where his Title is not precedent to that of the Ter-tenant the Lands of his Receiver shall not be charged by the Statute of 13 Eliz. 247 248 Difference between the Case of the King and of a common person 263 A person disabled by Outlary may sue for him but not for himself 267 Where an Interest is vested in him it shall not be divested by a general Pardon 53 L. Lease BY a Bishop and more than the old Rent reserved good 57 Where it shall be made by the words Covenant Grant and Agree and where not 80 81 Lessee for years assigns over his whole Term whether Debt will lie on the Contract or not 174 175 Liberties What is meant by the Word 48 Limitation of Action Extends to Indebitatus Assumpsit though not named in the enacting Clause 71 72 73 Statute no Barr where the Sheriff levyed Goods by a Fieri Facias and did not pay the Mony within nine years 212 Doth not extend to an Action on the Case Indebitatus Assumsit Quantum meruit and Insimul computasset 311 312 Limitation of Estate What are good words to take by Purchase from a Stranger 210 211 Limitation of Estate when void makes the Estate absolute 227 Livery Secundum formam Chartae where good or not 78 79 M. Mannor WHere a thing becomes in gross it can never after be united to it 144 What may be appurtenant to it ibid. N. Negative WOrds must