word Children My second Reason is from the manner of the Limitation which is to his Issue and of his Body lawfully begotten upon the second Wife Phrases agreeable to an Estate Tail and the meaning of a Testator is to be spelled out by little Hints It is admitted in Wild's Case in the 6 Co. 17. that if the Devise had been to the Children of their Bodies it would have been an Entail Thirdly It appears by the Devise that the Testator knew there could be no Children at that time and shall not be supposed to intend a contingent Remainder Fourthly It appears that the Testator did not intend to prefer the Children of the first Wife of Bernard but did the Children of the second and therefore cannot be thought to mean that John the younger Brother of Bernard should take before failure of the Issue which Bernard should have by his second Wife And to this purpose is Spalding's Case 3 Cro. 185. A Devise to his eldest Son and the Heirs of his Body after the death of his Wife and if he died living the Wife then to his Son N. And devised other Lands to another Son and the Heirs of his Body and if he died without Issue then to remain c. The first Son died living the Wife It was strongly urged that his Estate should cease for being said If he died living the Wife this was a Corrective of what went before But 't was Ruled by all the Court that it was an absolute Estate Tail in the first Son as if the words had been If he died without Issue living the Wife for he could not be thought to intend to prefer a younger Son before the Issue of his eldest Fifthly The words are further and for want of such Issue then to John which words in a Will do often make an Estate Tail by Implication As 4 Jac. Robinson's Case A Devise to A. for Life and if he died without Issue then to remain A. took an Entail So Burley's Case 43 Eliz. A Devise to A. for Life Remainder to the next Heir Male and for default of such Heir Male then to remain Adjudged an Estate Tail 'T is true Dyer 171. is where Lands were Devised to a man and the Heirs Males of his Body and if he died without Issue c. these last words did not make a Tail General to the Devisee For an Implication of an Estate of Inheritance shall never ride over an express limitation of an Inheritance before being 't is said here for want of such Issue the Land should remain 't is plainly meant that it should not before the Issue failed and then the Issue must have it so long for none else can and so 't is an Estate Tail I come now to Authorities 6 Eliz. Anderson num 86. Moor pl. 397. A Devise to his Son for Life and after his decease to the Men Children of his Body said to be an Estate Tail and so cited by Coke in that Book and so contrary to his Report of it in Wild's Case Bendloes num 124. But that Case is not so strong as this for Children is not so operative a word as Issue Rolls 839. A Devise to his eldest Son for Life non aliter for so were the words tho' not printed in the Book and after his decease to the Sons of his Body it was but an Estate for Life by reason of the words Non aliter Hill 13 Car. 2. Rot. 121. Wedgward's Case A Devise to his Son Thomas for Life and after his decease if he died without Issue living at his death then to the Daughter c. it was held to be an Estate for Life But were it an Estate Tail or no it was not necessary to be Resolved the Case depending upon the destruction or continuance of a Contingent Remainder which would have been gone had the Devise made an Estate Tail again there being an express Devise for Life they would not raise a larger Estate by Implication Again Wild's Case where Lands were Devised to A. for Life Remainder to B. and the Heirs of his Body Remainder to Wild and his Wife and after their decease to their Children And the Court of Kings-Bench were at first divided Indeed it was afterwards adjudged an Estate for Life to Wild and his Wife First Because having limited a Remainder in Tail to B. by express and the usual words if he had meant the same Estate in the second Remainder 't is like he would have used the same words Secondly It was not after their decease to the Children of their Bodies for then there would be an Eye of an Estate Tail Thirdly The main Reason was because there were Children at the time of the Devise and that was the only Reason the Resolution went upon in the Exchequer Chamber And tho' it be said in the latter end of the Case That if there were no Children at that time every Child born after might take by Remainder 't is not said positively that they should take And it seems to be in opposition to their taking presently but however that be it comes not to this Case For tho' the word Children may be made nomen collectivum the word Issue is nomen collectivum of it self Hill 42. and 43 Eliz. Bifield's Case A Devise to A. and if he dies not having a Son then to remain to the Heirs of the Testator Son was there taken to be used as nomen collectivum and held an Entail I come now to answer Objections First 'T is objected that in this Case the Limitation is expresly for Life and in that respect stronger than Wild's Case And this is the great difficulty But I Answer That tho' these words do weigh the Intention that way yet they are ballanced by an apparent Intention that weighs as much on the other side which is That as long as Bernard should have Children that the Land should never go over to John for there was as much reason to provide for the Issue of the Issue as the first Issue Again A Tenant in Tail has to many purposes but an Estate for Life Again 'T is possible that he did intend him but an Estate for Life and 't is by consequence and operation of Law only that it becomes an Estate Tail 1651. Hansy and Lowther The Case was A Copyholder surrendred to the use of his Will and Devised to his first Son for Life and after his decease to the Heir Male of his Body c. This was Ruled to be an Estate Tail and this differs from Archer's Case in the 1st of Co. for that the Devise there was for Life and after to the Heir Male and the Heirs of the Body of that Heir Male There the words of Limitation being grafted upon the word Heir it shews that the word Heir was used as Designatio personae and not for Limitation of the Estate So is the Case of Clerk and Day 1 Cro. 313. Another Objection was That there being a Power appointed
his Bill to have the Land Conveyed according to the Agreement above But for the Defendants it was much insisted upon that this being to settle the Lands in case Thomas should dye without Issue it should not be regarded in this Court for the Execution of a Trust of a Remainder or Reversion in Fee upon an Estate Tail shall not be compelled because it is subject to be destroyed by the Tenant in Tail as here Thomas might have done in case he had made a Settlement according to the import of that Writing who therefore could not have been compelled himself to have executed this Agreement But the Lord Chancellor Fynch Decreed the Land for the Plaintiff because it was proved that the Marriage with the Plaintiffs Wife was in expectation of the performance of this Agreement and he was obliged to have left the Land to the Plaintiff if he had had no Issue Termino Sanctae Trinitatis Anno 34 Car. II. In Cancellaria Collet versus Collet WIlliam Fox having three Daughters Mary Elizabeth and Martha the two latter being Married and the first a Widow by his Will devised in these Words Viz. I give unto Martha my Daughter the Sum of 400 l to be paid unto her by my Executors within one year next after my decease But I will and my desire is that Cornelius Collet the Husband of Martha upon the payment of the said 400 l shall give such Security as my Executors shall approve of that the said 400 l shall be laid out within 18 Months next after my decease and purchase an Estate of that value to be setled and assured upon her the said Martha and the Heirs of her Body lawfully begotten And in the Close of his Will were these words following Viz. I Will That after my Debts which I shall owe at the time of my Decease and my Funeral Expences and the Probat of this my Will be discharged then I do give all the rest of my Personal Estate Unbequeathed to purchase an Estate near of as good value as the same Personal Estate shall amount unto within one year next after my my decease Which said Estate so to be purchased I Will shall be setled and assured unto and upon my said three Daughters Mary Elizabeth and Martha and the Heirs of their respective Bodies lawfully begotten for ever or otherwise my said Daughter Mary and the Husbands of my said two other Daughters Elizabeth and Martha shall for such Moneys as they shall receive of my said Executors for the Overplus of my Personal Estate enter into one or more Bonds in the double Sum of Money as each part shall amount unto the same being to be divided into three parts unto my said Executors within 18 Months next after my decease to settle and assure such part or Sum of Money as each of them shall receive and have by this my Will for the Overplus of my Personal Estate unto and upon the Child and Children of my said Daughters Mary Elizabeth and Martha part and part alike Martha the Wife of Cornelius Collet died within six Months after the Testator leaving Issue only a Daughter who died within four Months after the Mother the other two Sisters surviving Cornelius Collet took out Letters of Administration both to Martha his Wife and likewise to his Daughter the Four hundred Pounds and likewise the Overplus of the Personal Estate being unpaid or disposed of Cornelius Collet preferred his Bill against the Executors and the surviving Sisters and thereby demanded the 400 l and likewise a third part of the Overplus which amounted unto 700 l And the Cause came to be heard before the Lord Chancellor upon Bill and Answer who Decreed the 400 l to the Plaintiff but as to the Surplus of the Estate the Bill was dismissed altho ' it was much insisted upon for the Plaintiff that he might have given Bond to secure the Surplus for his Child and so from the Child it would have come to him as Administrator But seeing that no Interest could vest in the Child till the Election were determined it not being material as to this Point whether the Executors or the Husband aâ— the Election the Father could not claim it as Administrator to the Child And then if the Money had been laid out in Land and the Settlement according to the direction of the Will the Husband would have had no benefit for there would have been a Ioynt Estate for Life in the Daughters with several Inheritances and no severance of the Ioynture by the Marriage and having Issue Co. Inst and so no Tenant by the Courtesie Therefore as to the Surplusage the Bill was Decreed to be dismissed Note As to the 400 l the Order of my Lord Chancellor was That Interest should be paid for it from the time of bringing the Bill Termino Sancti Michaelis Anno 34 Car. II. In Cancellaria West versus The Lord Delaware WEST Heir apparent of the Lord Delaware Exhibited his Bill against the said Lord setting forth That upon a Marriage agreed to be had between him and the Daughter of one Mr. Huddleston with whom he was to have 10000 l Portion The Lord his Father Articled to settle Lands of such yearly value for the Wives Ioynture for their maintenance and the Heirs of their Bodies c. That the Wife being now dead and without Issue and no Settlement made the Bill prayed an Execution of the Articles and a discovery of what Incumbrances there were upon the Lands to be setled To this the Lord Delaware Answered That he never intended to settle Lands but for the Wives Ioynture only and that the Plaintiff her Husband was not named in the Articles and so was Advised He need make no Settlement and upon that Reason the Plaintiff could not require him to discover Incumbrances An Exception being taken to the Answer for that it did not discover any thing touching Incumbrances it was Argued before my Lord and for the Defendant it was alledged That by the Course of the Court the time of the Discovery should be when the other Point was determined for if that be for the Defendant then no Discovery can be required but if otherwise that then the Defendant shall be put to answer Interrogatories as is usual in Cases of like nature And it cannot be Objected That the Estate may be charged with Incumbrances since the Bill because they will be of no avail On the other side it was said That this would create great delay for upon the discovery of Incumbrances other parties must be made to the Bill and therefore this Case differed from the Case of Account which concerns the Defendant himself only but the Question now is only for the making proper Parties The Court Ordered That a further Answer should be made Nota If a man deviseth that such a Sum of Money shall be paid out of the Profits of his Lands and the Profits will not amount to the Sum in such case the Land
only shewn upon the Declaration to enable the Plaintiff to bring his Action Note This is aided by a late Act of Parliament Jay versus Bond. IN Trespass the Defendant pleads that Ante Quinden ' Sancti Martini usque ad hunc diem praed ' Jay Excommunicatus fuit adhuc existit protulit hic in Cur ' literas Testamentarias Episcopi Sarum quae notum faciunt universis quod scrutatis Registeriis invenitur contineri quod Excommunicat ' fuit c. pro contumacia in non comparendo to a Suit for Tythes c. in cujus rei Testimonium praed ' Episcopus Sigillum apposuit It was objected that such a kind of Certificate of Excommunication as this is was not allowable for it ought to be positive and under the Seal of the Ordinary whereas this is only a relation of what is found in their Register Sed non allocatur for tho' such a form of pleading would be altogether insufficient in our Law yet their course is sometimes to certifie Excommunication sub sigillo Ordinarij and sometimes per literas Testamentarias as here Hale said to plead Letters Patents without saying sub magno sigillo is naught and that because the King has divers Seals Note The entry was here quod Defendens venit dicit c. Hale doubted whether he ought not to have made some kind of defence tho' no full defence is to be made when Excommengment in the Plaintiff is pleaded Owen versus Lewyn THe Plaintiff declared in Action upon the Case upon the Custom of the Realm against a Common Carrier and also sur Trover and Conversion Hale said so he might for Not guilty answers both but if a Carrier loseth Goods committed to him a General Action of Trover doth not lye against him Termino Sancti Michaelis Anno 24 Car. II. In Banco Regis Davenant against the Bishop of Salisbury IN Covenant The Plaintiff declared that the Bishop of Salisbury the Defendants Predecessor being seized in Fee demised unto him certain Lands for 21 years reserving the antient Rent c. and Covenanted for him and his Successors to discharge all publick Taxes assessed upon the Land and that since the Defendant was made Bishop a certain Tax was assessed upon the Land by vertue of an Act of Parliament and that the Plaintiff was forced to pay it the Defendant refusing to discharge it unde Actio accrevit c. The Defendant demurred first to the form for that 't is said that the Predecessor Bishop was seized and doth not say in jure Episcopatus But Hale said the Old Books were that where it was pleaded that J. S. Episcopus was seized that it implies seizin in the right of the Bishoprick which is true if he were a Corporation capable only in his politick capacity or as an Abbot c. but in regard he might also be seized in his natural capacity the Declaration was for this Cause held to be ill The matter in Law was whether this were such a Covenant as should bind the Successor as incident to a Lease which the Bishop is empowred to make by the 32 H. 8. For 't is clear if a Bishop had made a Covenant or Warranty this had not bound the Successor at the Common Law without the consent of the Dean and Chapter and if it should be now taken that every Covenant would bind the Successor then the Statute of 1 Eliz. would be of no effect But Hale said admitting this were an antient Covenant and if so it should have been averred to have been used in former Leases to discharge ordinary payments as Pentions or Tenths granted by the Clergy then it might bind the Successor by the 32 H. 8. But it were hard to extend it to new charges And we all know how lately this way of Taxes came in But the Court said that the Declaration being insufficent for the other matter they would not determine this But they held that however this Covenant should prove it would not avoid the Lease Vid. Gee Bishop of Chicester and Freedlands Case 3 Cro. 47. Note Hale said that antiently when the Sheriff returned a Rescous upon a Man he was admitted to plead to it as to an Indictment But the course of the Court of latter times has been not to admit any Plea to it but to drive the party to his Action upon the Case as upon the return of a Devastavit c. Cole versus Levingston IN Ejectment upon a long and intricate Special Verdict the Chief Justice said never was the like in Westminster Hall these following Points were resolved by the Court and declared by Hale as the Opinion of himself and the rest of the Judges First That where one Covenants to stand seized to the use of A. and B. and the Heirs of their Bodies of part of his Land and if they die without Issue of their Bodies then that it shall remain c. and of another part of his Land to the use of C.D. and E. and the Heirs of their Bodies and if they die without Issue of their Bodies then to remain c. that here there are no cross Remainders created by Implication for there shall never be such Remainders upon construction of a Deed tho' sometimes there are in case of a Will 1 Rolls 837. Secondly As this Case is there would be no cross Remainders if it were in a Will for cross Remainders shall not rise between three unless the words do very plainly express the intent of the Devisor to be so as where black Acre is devised to A. white Acre to B. and green Acre to C. and if they die without Issue of their Bodies vel alterius eor ' then to remain there by reason of the words alterius eor ' cross Remainders shall be Dier 303. But otherwise there would not Gilbert v. Witty and others 2 Cro. 655. And in this case tho' some of the Limitations are between two there shall be no cross Remainders in them because there are others between three and the intent shall be taken to the same in all The Dean and Chapter of Durham against the Lord Archbishop of York IN a Prohibition the Archbishop pleaded a Prescription that he and his Predecessors have time out of mind been Guardians of the Spiritualties of the Bishoprick of Durham Sede vacante and Issue joyned thereupon and tried at the Bar this Term. Hale said De jure communi the Dean and Chapter were Guardians of the Spiritualties during the vacancy as to matters of Jurisdiction but for Ordination they are to call in the aid of a Neighbouring Bishop and so is Linwood But the Usage here in England is that the Archbishop is Guardian of the Spiritualties in the Suffragan Diocess and therefore it was proper here to joyn the Issue upon the Usage There was much Evidence given that antiently during the vacancy of Durham the Archbishop had exercised Jurisdiction both Sententious and other as Guardian of the Spiritualties
that time this made an Estate Tail But if it had béen and after their decease to their Children then the Children should take by Purchase tho' born after 'T is true that case is variously reported in the Books but I adhere to my Lord Coke presuming that being brought before all the Judges in the Argument of VVilds Case it was a true Report As for the second Point 't is plain that the power is extinguished for by the Recovery the Estate for Life to which it was annexed in privity is gone and forfeited so that 't is not necessary to dispute the third Point whether well executed or no But upon the whole I agree with my Brother Rainsford that the Plaintiff ought to have Judgment Hale I differ from my two Brothers and tho' I was of their Opinion at the finding of the Special Verdict yet upon very great Consideration of the Case I am of Opinion for the Defendant I shall proceed in a different method from my Brothers and begin with that Point which they made last and I agree with them admitting that Bernard had but an Estate for Life that the power was destroyed also here the Recovery does not only bar the Estate but all powers annexed to it for the recompence in value is of such strong Consideration that it serves as well for Rents Possibilities c. going out of and depending upon the Land as for the Land it self So Fines and Feoffments do ransack the whole Estate and pass or extinguish c. all Rights Conditions Powers c. belonging to the Land as well as the Land it self Secondly I agree with my Brother Rainsford that if Bernard had but an Estate for Life by the Devise the power was not well executed Where Tenant for Life has a power to make Leases 't is not always necessary to recite his power when he makes a Lease but if he makes a Lease which will not have an effectual continuance if it be directed out of his interest there it shall be as made by virtue of his power and so it was resolved in one Roger's Case in which I was Counsel Again Tho' it be here by Covenant to stand seized an improper way to execute his power yet it might be construed an Execution of it Mich. 51. In this Court Stapleton's Case where a Devise was to A. for Life Remainder to B. for Life Remainder to C. in Fee with power to B. to make his Wife a Joynture B. covenanted to stand seized for the Joynture of his Wife reciting his power tho' this could not make a legal Joynture yet it was resolved to enure by virtue of his power quando non valet quod ago ut ago valeat quantum valere potest But in this Case Bernard has got a new Fee which tho' it be defeasible by him in Remainder yet the Covenant to stand seized shall enure thereupon and the use shall arise out of the Fee Thirdly I was at the first opening of the Case of Opinion that Bernard had but an Estate for Life but upon deep Examination of the Will and of the Authority and Considerations of the Consequences of the Case I hold it to be an Estate Tail And first to ease that Point of all difficulties if cannot be denied but a Devise to a Man and the Heirs of his Body by a second Wife makes an Estate Tail executed tho' the Devisee had a Wife at the time As the Case often cited Land given to a Married Man and a Married Woman and the Heirs of their Bodies We are here in case of the Creation of an estate-Estate-Tail where intention has some influence voluntas Donatoris c. and may help words which are not exactly according to legal form 39 Ass 20. Land given to a Man and his Wife haeredi de corpore uni haeredi tantum this judged an Entail Again we are in case of an Estate Tail to be created by a Will and the intention of the Testator is the Law to expound the Testament therefore a Devise to a Man and his Heirs Males or a Devise to a Man and if he dies without Issue c. are always construed to make an Entail It must be admitted that if the Devise were to B. and the Issue of his Body having no Issue at that time it would be an Estate Tail for the Law will carry over the word Issue not only to his immediate Issue but to all that shall descend from him I agree it would be otherwise if there were Issue at the time Tayler and Sayer 41 Eliz. rot 541. a Devise to his Wife for Life 1 Cro. 742. Remainder to his Issue having two Children it was held the Remainder was void being to the Issue in the singular number for incertainy which should take But that was a little too rank for Issue is nomen collectivum Again I agree if a Devise be made to a man and after his death to his Issue or Children having Issue at that time they take by way of Remainder And that was the only Point adjudged in Wild's Case and there also against the Opinion of Popham and Gawdy This way being made I come to the Case it self and shall briefly give my Reasons why I hold Bernard has an Estate Tail First Because the word Issue is nomen collectivum and takes in the whole Generation ex vi termini and so the Case is stronger than if it were Children And where 't is said to the Issue that he shall have of the Body of the second Wife that is all that shall come of the second Wife For so 't is understood in common Parlance Secondly In all Acts of Parliament Exitus is as comprehensive as Heirs of the Body In Westm 2. de donis Issue is made a term of equivalence to Heirs of the Body for where it speaks of the Alienation of the Donee 't is said quo minus ad exitum discenderet So in 34 H. 8. of Entails setled by the Crown 'T is true in Conveyances c. the wisdom of the Law has appropriated the word Heirs as a Term of Art In Clerke's Case A Lease was made to commence after the death of his Son without Issue the Son had a Son and died and then that Son died without Issue It was Resolved both in the Kings Bench and the Exchequer that the Lease should commence for Issue being nomen collectivum whenever the Issue of the Son failed the term of Commencement did happen But now to see the difference Tyler's Case Mich. 34 Eliz. B.R. He had Issue A. B. C. and D. and Devised to his Wife for Life and after her death to B. his Son in Tail and if he dies without Issue then to his Children A. had Issue a Son and died and B. died without Issue Resolved that the Son of A. should not take as one of the Children of the Testator Which Case I cite to shew the odds between the word Issue and the
c. be indicted for not repairing of a Way within their Precinct they cannot plead Not guilty and give in Evidence that another by Prescription or Tenure ought to repair it for they are chargeable de communi Jure and if they would discharge themselves by laying it elsewhere it must be pleaded Error ERror to Reverse a Judgment in Debt upon a Bond given in Norwich Court where by the Custom the plea of the Defendant was quod non dedicit factum sed petit quod inquiratur de debito First It was moved to be Error for that the Venire was XII Men c. in figures Sed non allocatur for being in these letters XII and not in the figures 12. it was well enough Secondly It was ad triandum exi tum whereas there was no Issue joyned wherefore it ought to have been ad inquirend ' de debito c. Sed non allocatur for the Presidents are as the Case is here Thirdly The Condition of the Bond was to pay at Alborough and that ought to have been shewn to be within the Jurisdiction of the Court Sed non allocatur for the Plea here is not payment secund ' formam Conditionis but the Jury is to inquire by the custom of all manner of payments and discharges Fourthly In the Record it was continued over to several Courts and in the Court where the Judgment is given 't is said in Curia praedicta and so incertain which but notwithstanding these matters the Iudgment was affirmed Anonymus THe Case upon Evidence at a Tryal in Ejectment was this a Dean and Chapter having a right to certain Land but being out of Possession Sealed a Lease with a Letter of Attorney to deliver it upon the Land which was done accordingly and held to be a good Lease for tho' the putting the Seal of a Corporation aggregate to a Deed carries with it a delivery yet the Letter of Attorney to deliver it upon the Land shall suspend the operation of it while then Tenant for Life being in Debt to defraud his Creditors commits a Forfeiture to the end that he in Reversion may enter who is made privy to the contrivance The Opinion of Hale was that the Creditors should avoid this as well as any fraudulent Conveyance Anonymus IN an Ejectment upon a Tryal at Bar for Lands in antient Demesne there was shewn a Recovery in the Court of antient Demesne to cut off an Entail which had been suffered a long time since and the Possession had gone accordingly But there was now objected against it First That no sufficient Evidence of it appeared because the Recovery it self nor a Copy of it was shewn for in truth it was lost But the Court did admit other proof of it to be sufficient and said if a Record be lost it may be proved to a Jury by Testimony as the Decree in H. 8. time for Tythe in London is lost yet it hath been often allowed that there was one Secondly It appeared that a part of the Land was leased for Life and the Recovery with a single Voucher was suffered by him in Reversion and so no Tenant to the Praecipe for those Lands But in regard the Possession had followed it for so long time the Court said they would presume a Surrender as in an Appropriation of great Antiquity there has been presumed a Licence tho' none appeared Thirdly It was objected That the Tenant in Tail which suffered the Recovery having first accepted of a Fine sur Conusans de droit come ceo his Estate Tail was changed for he was estopped during his Life to say that he had any other Estate than Fee then he being made Tenant to the Praecipe the Recovery was not of the Estate Tail and so should not bind But the Court held clearly that the acceptance of this Fine made no alteration of his Estate If Tenant for Life accepts such a Fine 't is a Forfeiture because he admits the Reversion to be in a Stranger but it does not change his Estate so where two Joynt-tenants in Fee accept a Fine which is to the Heirs of one of them yet they continue Joynt-tenants in Fee as they were before Fourthly The Writ of Right Close did express the Land to lie in such a Mannor and a Praecipe that demands Land ought to mention the Vill in which they lie for a Praecipe of Land in Parochia or in Manerio is not good But this exception was disallowed by the Court for Hale said the Writ of Right Close is directed Ballivis Manerij c. quod plenum rectum teneant of the Land within the Precinct of the Mannor and it is not to be resembled to another Praecipe But if a Praecipe be faulty in that Point unless exception be taken to it in Abatement it cannot be assigned for Error but if it were Erroneous the Recovery would bind until reversed Note After Judgment quod computet tho' it be not the final Judgment yet no motion is to be admitted in Arrest of Judgment and after such Judgment a Scire facias lies against the Executor of the Defendant Note In an Action of Debt against the Lessee he may plead nil debet and give the expulsion in Evidence Anonymus IN an Assumpsit the consideration appeared to be that the Defendant promised to pay a Sum of Money which he owed this is no good consideration tho' after a Verdict unless it appeared that the Debt was become remediless by the Statute of Limitations but payment of a Debt without Suit is a good consideration Anonymus A Justice of the Peace brought an Action of Slander for that the Defendant said He was not worth a Groat and that he was gone to the Dogs and upon motion in Arrest of Judgment notwithstanding that it was urged to maintain it that the Statute of H. 6. requires that a Justice of Peace should have 40 l a year And therefore in regard an Estate was necessary to his Office that the Action would lie yet the Judgment was stayed for such words will not bear an Action unless the person of whom they are spoken lives by buying and selling Anonymus IT was returned upon Elegit that the Sheriff had delivered medietatem Terrar ' Tenementorum in extent and after the Filing and Entry of it upon the Record the Plaintiff moved to quash it because it was insufficient for the Sheriff ought upon such Execution to deliver the Possession by Metes and Bounds Wild held that it being entred upon the Record there was no avoiding of it but by Writ of Error But Hale held that in regard it appeared by the Record to be void it might be quashed as if upon an Ejectment to recover Possession upon such a return it appears upon the Evidence that there was more than the half the Land delivered this shall be avoided So if a Fieri facias be not warranted by the Judgment upon which it is awarded tho' the Sheriff shall be
upon the Warranty as well as the other tho' the Declaration saith knowing them to be naught yet the knowledge need not to be proved in Evidence Debt upon a Bond and a mutuatus may be joyned in one Action yet there must be several Pleas for Nil debet which is proper to the one will not serve in the Action upon the Bond. Sed Adjornatur Termino Sancti Hillarij Anno 34 35 Car. II. In Banco Regis Anonymus A Quo Warranto was brought against divers persons of the City of Worcester why they claimed to be Aldermen c. of the said Corporation The Cause came to be tried at the Bar and a Challenge was made to the Jury in behalf of the Defendants for that the Jury men were not Freeholders The Court said that for Juries within Corporate Towns it hath hath been held that the Statutes that have been made requiring that Jurymen should have so much Freehold do not extend to such places for if so there might be a failer of Justice for want of such Jurymen so qualified but then to maintain the Challenge it was said by the Common Law Jurymen were to be Freeholders But the Court overruled the Challenge but at the importunity of the Counsel they allowed a Bill of Exceptions and so a Verdict passed against the Defendants and afterwards it was moved in Arrest of Judgment upon the Point But the Court would not admit the Matter to be Debated before them tho' divers Presidents of like nature were offered because they said they had declared their Opinions before and the Redress might be upon a Writ of Error Termino Sanctae Trinitatis Anno 35 Car. II. In Banco Regis Anonymus A Motion for a Prohibition to a Suit in the Ecclesiastical Court for a Churchwarden's Rate suggesting that they had pleaded That it was not made with the Consent of the Parishioners and that the Plea was refused The Court said That the Churchwardens if the Parish were Summoned and refused to meet or make a Rate might make one alone for the Repairs of the Church if needful because that if the Repairs were neglected the Churchwardens were to be Cited and not the Parishioners and a Day was given to shew Cause why there should not go to a Prohibition Termino Sancti Michaelis Anno 35 Car. II. In Banco Regis Gamage's Case ERror out of the Court of the Grand Sessions where in an Ejectment the Case was upon Special Verdict upon the Will of one Gamage who devised his Lands in A. to his Wife for Life Item his Lands in B. to his Wife for Life and also his Lands which he purchased of C. to his Wife for Life and after the decease of his Wife he gave the said Lands to one of his Sons and his Heirs And the Question was Whether the Son should have all the Lands devised to the Wife or only those last mentioned And it was Adjudged in the Grand Sessions that all should pass And upon Error brought it was Argued that they were Devises to the Wife in distinct and separate Sentences and therefore his said Lands should be referred only to the last On the other side it was said that the word Said should not be referred to the last Antecedent but to all If a man conveys Land to A. for Life Remainder to B. in Tail Remainder to C. in forma praedict ' the Gift to C. is void 1 Inst 20. b. It is agreed if he said All the said Lands to his Son and his heirs it would have extended to the whole This is the same because Indefinitum equipollet universali Et Adjornatur Herring versus Brown IN an Ejectment upon a Special Verdict the Case was Tenant for Life with several Remainders over with a Power of Revocation Levied a Fine and then by a Deed found to be Sealed ten Days after declared the Vses of the Fine which Deed had the Circumstances required by the Power The Question in the Case was Whether the Fine had extinguished the Power It was Argued that it had not because the Deed and Fine shall be but one Conveyance and the use of a Fine or Recovery may be declared by a subsequent Deed in the 9 Co. Downam's Case And a Case was Cited which was in this Court in my Lord Hale's time between Garrett and Wilson where Tenant for Life with Remainders over had a Power of Revocation and by a Deed under his Hand and Seal Covenanted to levy a Fine and declared it should be to certain Vses and afterwards the Fine was Levied accordingly This was held to be a good execution of the Power and limitation of the new Vses and the Deed and Fine taken as one On the other side it was Argued That the Deed was but an Evidence to what Vses the Fine was intended and the Power was absolutely revoked by the Fine Suppose he in Remainder had Entred for the Forfeiture before this Deed should the Defendant have defeated his Right Et Adjornatur Postea Hodson versus Cooke IN an Action upon the Case for commencing of an Action against him in an Inferiour Court where the Cause of Action did arise out of the Jurisdiction After a Verdict for the Plaintiff upon Not Guilty it was moved in Arrest of Judgment That it was not set forth that the Defendant did know that the Place where the Action arose was out of the Jurisdiction which it would be hard to put the Plaintiff to take notice of On the other side it was said that the party ought to have a Recompence for the Inconvenience he is put to by being put to Bail perhaps in a Case where Bail is not required above and such like Disadvantages which are not in a Suit brought here and the Plaintiff ought at his peril to take notice However to help by the Verdict And of that Opinion were Jeffreys Lord Chief Justice Holloway and Walcot but Withens contra The Court said that it could not be assigned for Error in Fact that the Cause arose out of the Jurisdiction because that is contrary to the Allegation of the Record neither is the Officer punishable that executes Process in such Action but an Action lies against the party And so it was said to be resolved in a Case between Cowper and Cowper Pasch 18 Car. 2. in Scac. when my Lord Chief Baron Hale sate there Anonymus AN Indictment of Perjury for Swearing before a Justice of the Peace that J. S. was present at a Conventicle or Meeting for Religious Worship c. It was moved to quash it because it did not appear to be a Conventicle viz. That there was above the number of Five and so the Justice of the Peace had no power to take an Oath concerning it and then it could be no Perjury To which the Lord Chief Justice said That Conventicles were unlawful by the Common Law and the Justices may punish Unlawful Assemblies And he seemed to be of Opinion that a man might be
Estate Tail in Michael First Because in this Case the Use returns by operation of Law and executes an Estate in Michael for Life which being conjoined to the Estate limited to the Heirs Male of his Body makes an Estate Tail This Estate for Life rising by operation of Law is as strong as if it had been limitted to him for his Life and after his decease to the Heirs Male of his Body Secondly Because that a Limitation to the Heirs Male of his Body is in Construction of Law a Limitation to himself and the Heirs Male of his Body There is a great difference when he who has the Use limits it to A. for Life the Remainder to the Heirs of the Body of B. here no Estate can rise to B. because nothing moved from him but where he who has the Estate limits it to the Heirs Male of his own Body ut res valeat he shall have it for his Life Thirdly It is plainly according to the intent of the Parties the intent perfectly appears that the Issue by the second Wife should take and that Robert the eldest Son should not take till so much Money be paid therefore if we can by any means serve the intent of the parties we ought to do it as good Expositors For as my Lord Hobart says Judges in Construction of Deeds do no harm if they are astuti in serving the intent of the Parties without violating any Law Obj. Here the Use being never out of Michael he hath the ancient Use which is the Fee simple and consequently being the ancient Use and this being a new Limitation to the Heirs Male of his Body the ancient use and the new one cannot be piec'd to make an Estate Tail executed in Michael but it shall be a Contingent Use if any which ought to rise to the Heir Male of his Body and so remains the ancient Fee simple And it hath been compared to these Cases If a Man Covenants to stand seized to the Use of J.S. or of his Son after his Marriage or after the Death of J. D. these are Contingent Limitations and there is a Fee simple determinable in the Covenantor to serve the future Uses Resp 'T is true if a Man Covenants to stand seized to such Uses as that he leaves a discendible Estate in himself As if a Man Covenants to stand seized to the Use of his Son from and after his Marriage this is purely a Contingent Use because t is possible the Marriage may never take effect and nothing is fetch'd out of the Covenantor so if he Covenants to stand seized to the Use of J. S. after 40 years there is a Fee simple determinable in the Covenantor and therefore those Cases are not to be resembled to our Case where the Estate of Michael cannot continue longer than his Life And this without any wrong done to any Rule of Law may be turned to a Use for Life and therefore such construction shall be Object 2. Here is an Estate to rise by way of Use by a Deed and not by a Will which shall not be by Implication by a Deed. Resp It s a certain truth But we are not here upon raising an Estate by Implication but qualifying an Estate that is now in the Father which by this new Deed is to be qualified to be an Estate for Life to preserve the Estate Tail so that the Cases of Implication are not to the purpose Object 3. In this Case Michael shall be in of his ancient Estate in Fee simple which is in him and not of a new Estate created by Implication of Law and it hath been compared to the Devise of Land to a Mans Heir he shall not be in by the Devise but of his ancient Estate that would have descended to him Resp True But in this Case a Man may qualifie his Estate as in Gilpins Case Cro. Ca. 161. Devise to his Heir upon Condition that he shall pay his Debts in a year the Heir is a Purchasor so here is a qualification to turn the Estate of Michael into an Estate for Life ut res valeat Object 4. Michael had not an Intention to have an Estate for Life for in the Limitation of the other Lands he has limited them expressly to himself for Life and if he had intended to have had an Estate for Life in the Lands in question he would also have so expressed it Resp The intention will not controul the operation of Law his main intent was to settle the Lands upon his younger Children this the Law serves but not his secondary intentions If a Man Covenants to stand seized to the Use of himself for Life without impeachment of Wast and afterwards to the Use of the Heirs Male of his Body the Law supervenes his intention and makes him to be Tenant in Tail And in our Case there was a necessity to limit the other Lands to himself for Life because there was another Estate to intervene the Estate for Life and the Estate Tail The Reason given by my Lord Coke in Fenwick and Mitfords Case is plain enough and it appears that he was of that Opinion afterwards by the Report of Pannel and Lanes Case 13 Jac. in Rolls Rep. 1 part 238. The Case upon which I shall rely which has not been answered is my Lord Pagets Case adjudged by all the Judges of England Tho. Lord Paget Covenants in consideration of the discharge of his Funerals Payment of his Debts and Legacies out of the profits of his Land and for the advancement of his Son Brother and others of his Blood that he and his Heirs would stand seized of divers Mannors to the Use of T.F. one of the Covenantees for the Life of my Lord Paget and after his Death to the Use of C. Paget for the term of 24 years and then to the Use of W. Paget his Son in Tail with Remainders in over and afterwards the Lord Paget was aâ—â—â—nted of Treason And it was adjudged that the Lord Paget himself had an Estate for his Life for the Remainder being limited after his Death the Estate cannot pass out of him during his Life and there in Case of a Covenant to stand seized he himself hath an Estate for Life And this is not because the Estate returns as my Brother Twisden has said but because the Estate was never out of him and cannot return either from the Heir or the Covenantee otherwise where should it be during the Life of the Lord Paget who was attainted the Book is that it was never out of him but was turn'd into an Estate for Life So that now it is all one as if he had Covenanted to stand seized to the Use of his eldest Son after his Death And the question is What Estate he has during his Life It is adjudged that he has an Estate for Life for if there had been a Contingent Fee simple in the Lord Paget his Heir could never have had an Amoveas manus
for if a Man Covenants to stand seized to a Contingent Use and afterwards is attainted of Treason before the Contingency happen the Contingency shall never rise for the King has the Estate discharged and the Use is to rise out of the Estate of the Covenantor so is Moor Sir Tho Palmers Case 815 In Moors Rep. of my Lord Pagets Case 194. It s said that W. Paget had an Amoveas manus for the Estate of the Queen leased by the Death of my Lord Paget In Sir Francis Englefeilds Case Popham 18. n. 7. It s resolved that no Use rises because t is that it shall Discend Remain or Come which is uncertain but if he had Covenanted that after his Death he and his Heirs would have stood seized to the Use of John an Use would have resulted to Sir Francis Second Point I conceive if it be impossible for Ralph to take by Discent this would be a Contingent Use in him by Purchase The great Objection against this is that the Limitation is to an Heir and an Heir which ought to take by Purchase ought not to be only Heir of the Body c. but Heir general Of this I am not well satisfied I conceive the Remainder being limited to the Heirs of the Body of Jane begotten by Michael such a Limitation will make a special Heir to serve the turn and t is not to be resembled to Shelley's Case My Reasons are First Because at the Common Law before the Statute de Donis notice was taken that this was a special Heir and therefore 't is no wrong done to make him here a qualified Heir In the Statute de Donis 't is said When Lands are given to Man and his Wife and the Heirs of their two Bodies begotten Secondly Vpon the special penning of the Deed it is apparent that Michael took notice that he had an Heir at Common Law therefore it can't be intended that he meant here such an Heir that should be Heir general to him this would be Contradictio in Adjecto Litt. Sect. 352. puts this Case If a Feoffment be made upon Condition that the Feoffee shall give the Land to the Feoffor and his Wife and the Heirs of their two Bodies begotten In this Case if the Husband dye living his Wife before the Estate Tail is granted to them the Feoffee ought to make the Estate as near the Condition and as near the intent of the Condition as may be viz. To let the Land to the Wife for her Life without impeachment of Wast the Remainder to the Heirs of the Body of the Husband on her begotten If the Husband and Wife dye before the Gift made then the Feoffee ought to make it to the Issue and to the Heirs of the Body of his Father and Mother begotten Suppose that this had been to a second Wife and there had been Issue by a former the Book of 12 H. 4. 3. says that there it shall be in another manner but Litt. says it shall be as near vid. Litt. Sect. 22. Morevils Case Fitzh Tail 23. 2 Ed. 3. 1. 4. Ed. 3. 50. by all these Cases it appears that no regard is had whether the Son be Heir of the Husband if he be Heir of their two Bodies Therefore it seems that by this Limitation Ralph shall take by way of Contingent Remainder For Heirs of the Body of the second Wife is a good name of Purchase I have not read any Case against this Hill 16. or 26 Eliz. there was this Case A Man taking notice in his Will that his Brother who was dead had a Son and that he himself had three Daughters who were his right and immediate Heirs he gave them 2000 l and gave his Land to the Son of his Brother by the name of his Heir Male. Provided If his Daughters troubled his Heir then the Devise of the 2000 l to them should be void And it was resolved that the Devisor taking notice that others were his Heirs the Limitation to his Brothers Son by the name of Heir Male was a good name of Purchase and this agrees with Cownden and Clarks Case in Hob. Wild Justice said he was of the same Opinion with Hale in this last Point And Iudgment was given for the Defendant Three Learned ARGUMENTS One in the Court of Kings-Bench BY Sir FRANCIS NORTH Attorny General And Two in the Court of Exchequer BY Sir MATTHEW HALE Chief Baron there The Argument of Sir Francis North. In Banco Regis Potter and Sir Henry North. IN a Replevin for taking of an Horse in a certain place called the Fenn at Milden-Hall in the County of Suffolk the Defendant makes Cognizance as Bayliff to Sir Henry North and saith That the place Where c. containeth Ten thousand Acres of Pasture in Milden-Hall whereof a certain place called Delfe is parcel and that it is Sir Henry North's Freehold and the Horse was Damage feasant there c. The Plaintiff Replies Confessing the Soyl to be the Freehold of Sir Henry Norths but says That time whereof c. the place Where hath been parcel of the Fenn and parcel of the Mannor of Milden-Hall of which Sir Henry North is seised in Fee and that the Plaintiff was at the time c. seised of an Ancient Messuage one of the Freeholds holden of the Mannor by Rents and Services and parcel of the said Mannor and that Time out of Mind there were divers ancient Freehold Messuages holden of the said Mannor by Rents and Services and divers Copyhold Messuages parcel of the said Mannor by Custom of the said Mannor demised and demisable by Copy of Court Rolls of the said Mannor And the several Tenants of the said Freehold Tenements being seised in their Demesn as of Fee and they whose Estate they have in the same Time out of mind have had together with the Customary Tenants of the said Customary Tenements the sole and several Feeding of 100 Acres of Pasture for all Beasts except Hogs Sheep and Northern Steers levant and couchant upon their several Freeholds every year at all times of the year as to their several Freeholds belonging And that within the said Mannor there is and Temps d'ont c. hath been such a Custom that the several Tenants of the Customary Messuages together with the Freeholders aforesaid have used and accustomed to have the sole and several Feeding of the said 100 Acres of Pasture for all their Beasts except Sheep Hogs and Northern Steers levant and couchant upon their several Copy-holds every year at all times in the year tanquam ad seperal ' Tenementa customar ' spectant ' pertinent ' and the Plaintiff being seised put in his Horse c. and so Iustifies Vpon this the Defendant demurs generally This Prescription is naught in substance and Judgment ought to be given for the Defendant upon these Four Exceptions First That several Freeholders cannot joyn or be joyned in a Prescription to claim an entire Interest in another mans Soyl as
of the Crown so 11. and so it was held in the Case of the Earl of Essex in Queen Elizabeths Time and in the Lord Cobham's Case in the Reign of King James the First And the Chief Justice cited the Statute made 29 H. 6. cap. 1. upon the Rebellion of Jack Cade which Act sets forth that John Cade naming himself John Mortimer falsly and traiterously imagined the Death of the King and the destruction and subversion of this Realm in gathering together and levying of a great Number of the King's People and exciting them to Rise against the King c. against the Royal Crown and Dignity of the King was an Overt act of imagining the Death of the King and made and levied War falsly and trayterously against the King and his Highness c. So that it appears by that Act that it was the Iudgment of the Parliament That gathering Men together and exciting them to Rise against the King was an Overt Act of Imagining the Death of the King Vide Stamford's Pleas of the Crown fo 180. And according to this Opinion Judgment was given against Harding in the following Sessions and he was Executed thereupon NOta At an Adjourned Sessions held the 19th of May 2 Willielmi Mariae it appeared that one of the Kings Witnesses which was to be produced in an Indictment for Treason had been the day before Challenged to Fight by a Gentleman that it was said was a Member of the House of Commons he was by the Court bound in a Recognizance of 500 l to keep the Peace And because it appeared the Witness had accepted the Challenge he was bound in the like Sum. NOta Vpon an Appeal to the House of Lords Anno 2 Willielmi Mariae the sole Question was Whether upon the Statute of Distributions 22 23 Car. 2. the half Blood should have an equal share with the whole Blood of the Personal Estate And by the Advice of the two Chief Justices and some other of the Judges the Decree of the Lords was That the Half Blood should have an Equal share Samon versus Jones IN an Ejectment brought in the Court of Exchequer in the year of the Reign of the late King James the Second The Case upon a Special Verdict was to this effect William Lewis seised of a Reversion in Fee expectant upon an Estate for Life did by Deed Poll in Consideration of Natural love and affection which he had to his Wife and Robert Lewis his Son and Heir apparent begotten on the Body of his said Wife and to Ellen his Daughter give grant and confirm unto the said Robert Lewis the Son all those Lands c. the Reversion and Reversions Remainder and Remainders thereof To have and to hold to his Son and his Heirs to the Vses following viz. to the use of himself for Life and then mentioned several other Vses not necessary to be here mentioned as not material to the Point in question and then to the use of the Wife for Life and after to the use of Robert and the Heirs of his Body and for want of such Issue to the use of Ellen the Daughter and the Heirs of her Body c. William Lewis and his Wife died Robert the Son devised the Estate to the Lessor of the Plaintiff and died without Issue Ellen was in possession and claimed the Lands by this Deed in which thâ—re was a Warranty but no Execution of the said Deed further than the Sealing and Delivery was had either by Enrolment Attornment or otherwise So that the sole Question was Whether this Deed should operate as a Covenant to stand seised or be void And it was Adjudged to amount to a Covenant to stand seised in the Court of the Exchequer And upon a Writ of Error brought upon the Statute of Ed. 3. before the Commissioners of the Great Seal and others empowered by that Act to sit upon Writs of Error of Judgments given in the Court of Exchequer the said Judgment was Reversed by the Opinion of Holt Chief Justice of the Kings Bench and Pollexfen Chief Justice of the Common-Pleas And upon a Writ of Error before the Lords in Parliament brought upon the said last Judgment it was Argued for the Plaintiff in the VVrit of Error That this should enure as a Covenant to stand seised to the use of the Wife Son c. It appears by Bedell's Case in the 7 Co. and Foxe's Case in the 8 Co. that the words proper to a Conveyance are not necessary but ut res magis valeat a Conveyance may work as a Bargain and Sale tho' the words be not used so as a Covenant to stand seised tho' the word Covenant is not in the Deed and and Poplewell's Case were cited in 2 Roll. Abr. 786 787. A Feme in Consideration of a Marriage intended to be had between her and J. S. did give grant and confirm Lands to J.S. and his Heirs with a Clause of VVarranty in the Deed which was also Enrolled but no Livery was made It was Resolved to operate as a Covenant to stand seised Vide Osborn and Churchman's Case in the 2 Cro. 127. which seems contrary to that Case but the chiefest Case relied upon was that of Crossing and Scudamore Mod. Rep. 175. where a man by Indenture bargained sold enfeoffed and confirmed certain Lands to his Daughter and her Heirs and no Consideration of Natural Love or Money exprest This was Resolved 22 Car. 2. in B.R. to operate as a Covenant to stand seised and upon a Writ of Error in the Exchequer Chamber the Judgment was affirmed It was said on the other side for the Defendant That the Case at Bar differed from the Cases cited for here the Intention of the Deed is to transfer the Estate to the Son and that the Vses should arise out of such Estate so transferred In the Cases cited no Vses are limited upon the Estate purported or intended to be Conveyed but only an Intention appearing to convey an Estate to the Daughter in Crossing's Case and to the intended Husband in Poplewell's Case and seeing for want of due Execution in those Cases the Estate could not pass at Law it shall pass by raising of an Vse But the Case at Bar is much the same with the Case of Hore and Dix in Siderfin the 1st Part. 25. where one by Indenture between him and his Son of the one part and two Strangers of the other part in Consideration of Natural love did give grant and enfeoff the two Strangers to the use of himself for Life Remainder to the Son in Tail c. and no other Execution was three than the Sealing and Delivery of the Deed this was Resolved not to raise an Vse for the Vse was limited to rise out of the Seisin of the Strangers who took no Estate Vide Pitfield and Pierce's Case 15 Car. 1. Marche's Rep. 50. One gave granted and confirmed Lands to his Son after his Death this Deed had been
the Estate had fully declared his Intention There is a difference where a man has power to make Leases c. which shall charge and incumber a third persons Estate such Powers are to have a rigid Construction but where the Power is to dispose of a mans own Estate it is to have all the favour imaginable It was offered by the Counsel That where Tenant in Tail did bargain and sell his Estate that seeing he had power over it notwithstanding there were no Fine and Recovery a Court of Equity should Decree against the Heir But my Lord Chancellor said that he would not supersede Fines and Recoveries but where a man was only Tenant in Tail in Equity there this Court should Decree such disposition good for a Trust and Equitable Interest is a Creature of their own and therefore disposable by their Rule Otherwise where the Entail was of an Estate in the Land Nota In the Case supra that the Court would not Decree the Infants to be foreclosed till they come of Age tho' sometimes 't is so done because this Mortgage depended upon a disputable Title and so no Money could be expected upon Assignment of it over Termino Paschae Anno 33 Car. II. In Cancellaria Sir Thomas Littleton's Case IN this Case my Lord Chancellor Declared 1. That it was a constant Rule That the Money to be paid upon Mortgages in Fee whether forfeit or not before the death of the Mortgagee that it should go to the Executor 2. If a man had Lands in Fee and other Lands mortgaged to him in Fee by a Devise of all his Lands the Mortgage would pass 3. If a man had but the Trust of a Mortgage of Lands in D. and had other Lands in D. by a Devise of all his Lands in D. the Trust would pass But here a Will devised Lands to J. S. in D. S. and T. and all his Lands elsewhere when he had a Mortgage of Lands that did not lye in D. S. or T. which were of more value than the Lands in D. S. and T. The Decree was that the Mortgage should not pass for he could not be thought to mean to comprehend Lands of so much value under the word elsewhere which is like an c. that comes in currente calamo and besides that there were some other Circumstances in the Will that did seem as if he intended not to pass the Mortgage Lands Anonymus A Bill was Exhibited setting forth That the Defendant in a Replevin had avowed for a Rent-charge and Issue was taken thereupon upon the Seisin of the Grantor and it was found for the Defendant Which Verdict the Plaintiff complained of alledging that the Rent pretended to be granted had not been paid in 50 years and other Circumstances to render the Grant suspicious c. The Lord Chancellor Decreed That there should be a New Trial the Complainant paying the Costs of the former Note This could not have been tryed again at Law because the Verdict in Replevin is conclusive Cage versus Russel A Feme Covert having Power by her Will to Devise certain Lands devised them to her Executors to pay 500 l out of them to her Son when he should attain the Age of One and twenty years provided that if the Father of the Son did not give a sufficient Release to the Executors of the Goods and Chattels remaining in such an House then the Devise of the 500 l should be void and to go to the Executors After her Decease a Release was tendred to the Father who refused it and then the Son exhibits a Bill against the Father and the Executors for the 500 l and to compell the Father to Release The Executors in their Answer insisted upon the Refusal as a Forfeiture of the 500 l And the Father said That tho' he had for some Reasons before refused he was now ready to Release The Lord Chancellor Decreed the Payment of the 500 l and said that it was the standing Rule of the Court That a Forfeiture should not bind where a thing may be done afterwards or any Compensation made for it As where the Condition was to pay Money or the like But in the Case of Fry and Porter in the 22th of Car. 2 which see at large in the Modern Reports where a Devise was of an House upon Condition that the Devisee should Marry with the Consent of three persons and she married without Consent it was an immediate Forfeiture for Marriage without Consent was a thing of that nature that no after Satisfaction could be made for it But if where there is a Devise over to a third Person after a Forfeiture by the first a Forfeiture in such a Case would be generally binding but here 't is said that it shall go the Executors c. which was not to be considered because it is no more than what the Law implied Termino Sancti Michaelis Anno 33 Car. II. In Cancellaria Anonymus ONe Deviseth 250 l to his Son and makes his Wife Executrix who marries another Husband In a Bill brought against them for the Legacy by the Son the Defendants would have discounted Maintenance and Education Which was not permitted by the Court so as to a diminish the principal Sum for it was said that the Mother ought to maintain the Child But a Sum of Money paid for the binding of him out an Apprentice was allowed to be discounted Note It is the Course here that where a man dies in Debt and under several Incumbrances viz. Judgments Statutes Mortgages c. and the Heir at Law buys in any of them that are of the first Date if those which have the latter Securities prefer their Bill the Incumbrances brought in shall not stand in their way for more than the Heir really paid for them Goylmer versus Paddiston THe Case was thus Thomas Goylmer in 1653. being seised of certain Lands in Fee of the value of 14 l per annum and there being a Marriage in Treaty between the Plaintiff the Brother of Thomas and Anne Wells the said Thomas did make a Writing sealed and delivered by him which was to this purpose Viz. That if the Marriage takes effect between my Brother and Ann Wells she being worth Eightscore Pounds I do promise that if I dye without Issue to give my Lands in c. to my Brother and his Heirs or to leave him 80 l in Money And for the true performance of this I bind my self my Heirs Executors and Administrators After which the Brother the now Plaintiff and the said Anne Wells did intermarry and she was worth Eightsocore pounds But Thomas Goylmer did afterwards marry and having no Issue he did settle the Lands upon his Wife for Life the Remainder to his own right Heirs this way a Joynture setled before Marriage and did afterwards devise the Land to her in Fee and died without Issue His Wife afterwards devised it to the Defendant's Wife in Fee and now the Plaintiff exhibited
his Assent to the Marriage of his Daughter with J.S. and that he would give her 1500 l And afterwards by another Letter upon a further Treaty concerning the Marriage he went back from the Proposals of his Letter And at some time after declared That he would agrèe to what was propounded in his first Letter This Letter was held a sufficient Promise in Writing within the Statute of 29 Car. 2. called the Statute against Frauds and Perjuries and that the last Declaration had set the Terms in the first Letter up again Anonymus WHere a man buys Land in anothers name and pays Mony it will be in Trust for him that pays the Mony tho' no Deed declaring the Trust for the Statute of 29 Car. 2. called the Statute of Frauds doth not extend to Trusts raised by Operation of the Law Anonymus AN Administrator de bonis non of the Conusee of a Statute had agreed with the Conusor to assign it in Consideration of a Sum of Mony which upon the said Agreement the Conusors had Covenanted to pay to him his Executors or Administrators and then the Administrator died The Court Decreed the Mony to be paid to the Executor of the Administrator and not to the New Administrator de bonis non altho' before the Extent it could not be assigned at Law Sed nota That there were not Debts of the first Intestate appearing Termino Sancti Hillarij Anno 35 36 Car. II. In Cancellaria NOte Suits in Chancery admitted for Distribution of Intestates Estates upon the Act of 22 Car. 2. Sir Thomas Draper Mil ' versus Dr. Crowther THe Bill sets forth a Contract under Seal with the Defendant for making of a Lease of certain Lands in Middlesex and to have an Execution of the Agreement The Defendant pleaded That he has Head of a Colledge in Oxford and sets forth the Charters of 14 R. 2. and 14 H. 8. Impowering the University to enquire and proceed in all Pleas and Quarrels in Law and Equity except concerning Freehold where a Scholar their Servants and Ministers sunt una partium c. ita quod Justiciarij de Banco Regis sive de Communi Banco vel Justiciarij ad Assisas non se intromittant c. And the Confirmation by an Act of Parliament of the 13th of Elizabeth and Concluded his Plea to the Iurisdiction of the Court. And it came to be Argued before the Lord Keeper Guildford 22 Febr. 1683. and the Plea was Over-ruled because the Charter ought properly to be extended to Matters at Common Law only or to Proceedings in Equity that might arise in such Cases and not to meer Matters of Equity which are Originally such as to Execute Agreements in specie Again Conuzance of Pleas is never to be allowed unless the Inferior Jurisdiction can give Remedy Here they can only Excommunicate or Imprison but cannot proceed to Sequestration of Lands in Middlesex If the Matter lay only in Damages it might be allowed to them because the Jurisdiction is given over all England but this is not to be intended where the Suit is for the thing it self and when 't is out of their reach A President was cited in the year 1663. before my Lord Clarendon Chancellor assisted with Hale then Chief Baron and Justice Wyndam where the Plea was Over-ruled Vide in the 3 Cro. 63. Wilcocks and Bradell's Case and Hallie's Case 87. Sir Robert Reeve's Case SIr George Reeve upon his Marriage with his Second Wife setled a Ioynture of divers of his Lands in Suffolk which he had before charged with his Daughters Portion viz. 3000 l which Daughter he had by a former Wife and by his last Will he mentioned that the said Joynture Lands were so incumbred and therefore he Devised certain Lands he had in Bickerton in Yorkshire to his Wife in lieu of such part of the Suffolk Lands as were charged with the Portion in case she would accept thereof But after his Decease it appeared that the Lands in Bickerton were not equivalent in Value to the Suffolk Lands and therefore she held to the latter and was not prejudiced by the Charge of the Portion because it appeared to be a Voluntary Settlement Nota In this Case the Lord Keeper Decreed that the Portion should be charged upon the Bickerton Lands for so much as it was defeated by the Settlement in Ioynture of the Suffolk Lands Anonymus ONe Devised his Lands to J.S. in Fee in Trust for Katharine and the Heirs of her Body and if Katharine died without Issue to Jane for life And in another Clause in the Will he devised That if Katharine died without Issue and Jane be then deceased then and not otherwise he gave the Land to J. N. and his Heirs Katharine died without Issue and Jane survived her and died A Bill was brought by J. N. against J. S. and the Heir at Law of the Testator to have this Trust executed My Lord Keeper Decreed it for J. N. altho' Jane survived Katharine because the words if Jane be then deceased seemed to be put in to express his meaning that Jane should be sure to have it for her life and that J. N. should not have it till she were dead and also to shew when J.N. should have it in possession Termino Paschae Anno 36 Car. II. In Cancellaria Wiliam Ragget and his Wife versus William Clarke THe Case was thus Nicholas Wheeler was seised of a parcel of Land for his own life and the lives of two others and prevailed with the Defendant to be bound with him for a Sum of Mony And that the Defendant might raise Mony for the discharge of the said Debt he permitted the Defendant to enter into the said Lands and to take the Profits for two years the said Lands being about 12 l yearly value and the said Land being so in the possession of the Defendant the said Wheeler died and made Isabel Wife of the now Plaintiff his Executrix And this Bill was brought by the said Husband and Wife to have an account of the Profits and that the possession of the Land should be delivered up to them The Defendant by Plea sets forth his Title as Occupant and it was allowed And the Bill was dismissed Bonham versus Newcomb ONe being seised in Fee in Consideration of 1000 l paid to him by a Person that married his Kinswoman Conveys to him and his Heirs and takes a Re-demise for 99 years if he should live so long And a Covenant therein That if he should pay 1000 l with the Interest that should be due for the same at any time during his life that the Grantee should Re-convey to him and his Heirs and that if he did not pay the Mony then that his Heirs c. should have no power to Redeem He died the Mony not being paid and his Heir preferred a Bill to Redeem it And it was urged for him That in a Conveyance which was a Security for Mony whatever
Perkins IN Debt upon a Bond entred into Eliz. Perkins who was the Plaintiffs Wife and he as her Administrator brings this Action The Defendant pleads That he delivered the Bond to one Eliz. Perkins his Sister quae obiit sola innupta absque hoe that he delivered it to Elizabeth Perkins the Plaintiffs Wife And to that the Plaintiff Demurres Specially For if it be taken that there are two of the name the Defendant should have pleaded non est factum for it amounts to no more Or at least he ought to have induced his Plea that there were two Elizabeth Perkins But this Traverse is designed to bring the Marriage in question which is not to be tried now Wherefore the Court gave Iudgment for the Plaintiff Twisden said If the Issue be Whether the Wife of such a Man or no This is to be tried per Pais For if she be a Wife de facto it serves upon the Issue But Loyalty of Matrimony is to be tried by the Certificate of the Bishop only 2 Cro. 102. Dightons Case A Mandamus was prayed to the Corporation of Stratford super Avon to restore Dighton the Town Clerk They returned their Letters Patents of Incorporation whereby they had Authority to Grant the Office of Town Clerk Durante bene placito and that he was amoved from his Office by the Mayor and Burgesses It was said that here appeared no Cause of amoval upon the Return which was manifestly needless having Authority to turn them out at their Pleasure But Twisden said It hath béen held that where any such like Power is to chuse one into a Iudicial Office as an Alderman whose place concerns Judicature that they cannot amove him without Cause But this was in a Misterial Office It was further moved That it did not appear that they had discharged him by any matter in Writing under Seal and it could not be by Parol Sed non allocatur for it is returned to be done by the Mayor and Burgesses and a Corporation cannot do any thing by Parol Post An Executor obtained Judgment in Debt in this Court and was afterwards upon an Information here convicted of Forging the Will It was also made void by Sentence in the Ecclesiastical Court Whereupon the Court was moved to vacate the Judgment which they ordered accordingly and the Cause of Vacuteing thereof to be entred upon the Record Vide Ante in Paris's Case King versus Atkins IN Debt upon a Bond the Condition recited That whereas the Plaintiff was bound with the Defendant being an Excise-Man that he should render a true Account in the Exchequer that the Defendant should save him harmless at all times c. The Defendant pleaded non fuit damnificatus The Plaintiff replied That a Scire facias issued out against him c. To which the Defendant demurred because he did not alledge that he gave notice This being spoken to divers times the Court thought notice not requisite in this Case no more than upon a Promise to pay so much at the others Marriage or return into England vid. Hob. 112 113. 1 Bulst 12 and 13. Where it is held upon a Promise notice is not necessary otherwise upon a Bond because of the penalty Ante Chester versus Wilson TRin. 21 Car. 2. Rot. 498. The Case was two Ioyn-tenants the one Grants Bargains and Sells all his Estate and Interest to the other It was held clearly by all the Court That this amounted to a Release but it must be pleaded quod relaxavit for one Ioyn-tenant cannot grant to another Wilson versus Armorer IN Debt against the Heir upon the Bond of his Ancestor who pleaded riens per discent the Jury find a Special Verdict to this effect That the Father was seised of a Mannor in Fee and made a Feoffment of it excepting two Closes for the life of the Feoffor only and refered it to the Iudgment of the Court whether these Closes descended to the Defendant or not So that the Question was Whether the Closes were well excepted or passed by the Feoffment And it was argued by Levins for the Plaintiff That by these words the two Closes were Totally excepted and that the Law should reject the latter words because they cannot take effect according to the Parties intention to reserve to the Feoffor a particular Estate If one surrendred a Copyhold to the use of J. S. and his Heirs which Estate to begin after his death adjudged in 2 Rolls 261. a present Fee simple passed 3 Cro. 344. A Man said to his Son being upon his Land Stand forth Eustace my Son reserving and Estate for mine and my Wifes Life I do give you this Land to you and your Heirs Resolved there that this is a good Feofment Moor 950. Popham 49. A Man possessed of a Term in an House in the right of his Wife granted it excepting the Cellar pro usu suo proprio and held that by these words it was altogether excepted out of the grant 1 Anderson 129. Serjeant Turner è contra For that it is but one Sentence and cited 38 H. 6. 38. An Addowson was granted saving the Presentation to the Grantor during his life and held void and Pl. Com. 156. where it is said if a Termour granted his Term after his Death it is void But if in two Sentences as to grant his Term Habendum after his Death there the Habendum is only void Er Adjurnatur Postea Love versus Wyndham AN Action upon the Case upon an Issue directed out of Chancery upon a Special Verdict the Case was George Searl being seised of the Mannor of N. Demised the same to Nich. Love for 99 years if 3 Lives should so long live N. Love devised it to Dulcibell his Wife the remainder to Nich. his Son for life and if he the said N. the Son should dye without Issue then to Barnaby Love the Plaintiff The Executor assented and whether the Devise to Barnaby were good was the Question Jones for the Plaintiff this is a good possibility I shall make two points First If a Termor Devise first to one and then to another whether he may Devise it over Secondly Whether the Limitation here after the Death without Issue be a good Limitation over First He may make a third Limitation which is a Possibility upon a Possibility at least he may make 2 or 3 such Limitations over I can't certainly say where it will end It can't be denied but that a Termour may Devise first to one for life and after to another 8 Co. 95. But I say he may go further and that will appear by Reason and Authority First By Reason The Reason given why the Executory Devise in the first case is good is because 't is in Construction of Law as much as if he had Devised it to the last first if the first Man should dye within the Term and then had Devised that the first should hold during life and without such a transposition it cannot
be good Now this being the way of Operation there is no reason why he may not Devise it to one after the death of two as well as after the death of one This would be so in Grants were it not that a certainty is required in them 1 Cro. 155. which is not required in Devises Termino Sanctae Trinitatis Anno 22 Car. II. In Banco Regis Freeman versus Barnes EError to Reverse a Judgment in an Ejectione firmae in the Common Pleas the Case upon a Special Verdict was thus The Marquess of Winchester being seised in Fee of the Lands in Question the 8 of July 9 Jac. Lets them to Sir An. Maynee for 100 years in Trust for the Marquess and his Heirs and to wait upon the Inheritance The Lessee enters afterwards the Marquess enters and Lets it to the Lord Darcy for 7 years and then Le ts to the Spanish Embassador for 7 years which Leases being expired Sir A.M. Demises to Freeman for a Term yet unexpired this Demise is not found to be upon the Land Afterwards the Lord Marquess Demises to Germin for 54 years upon Consideration of Money and Reserves a Rent and Covenants to Levy a Fine for the assurance of the Term which was afterwards done with Proclamation Germin enters and five years passed without any Claim made which Lease by mean Assignment came to Wicherly the Lessor of the Defendant who was Plaintiff in the Common Pleas and there had Iudgment The only Question upon this Special Verdict was Whether the Fine and Non Claim should barr the interest of Sir A. M. the Lessee in Trust This Case having béen argued thrée several times at the Bar The Court did this Term deliver their Opinons and did all agrée that the Iudgment ought to be affirmed It was considered quid operatur by the entry of the Marquess and they all except Moreton held that Prima facie he was Tenant at Will as Littleton Sect. 463. is where the Feoffor enters upon the Feoffée to his use but that the Entry of Germin his Lessée did ouft Freeman the Assignee of Sir A.M. which Assignment though not found to be upon the Land 2 Cro. 660. was good as the Chief Justice held because the two former Leases made by the Marquess were expired so he became Tenant at Will again but them he making of another Lease and the Lessee entring this must work an ouster and so the Fine would bar the Right For they agreed that a Fine regularly shall not work upon an Interest which is not divested though in some Cases it doth as upon the Interest of a Term according to Safins Case 5 Co. which yet cannot be divested but though the first Entry make but a Tenancy at Will yet taking upon him to make Leases that is enough to declare his intent to dispossess his Lessee in Trust Besides he reserves a Rent and Covenants for quiet Enjoyment and to make further assurance which could not stand with the Interest of the Lessee in Trust And for the Cases that were objected as Blunden and Baughs 1 Cro. 220. Where it is adjudged That the Entry of the Lessée for years of Tenant at Will should be no disseisin nolens volens to him that had the Freehold for there was no intention of the Parties to make it so and here the Law shall rather give the Election to him which had the Inheritance to make it a devësting than the Lessee or rather as the Chief Justice said the Law construes such Acts to amount to a divesting or not divesting as is most agreeable to the intention of the Parties and the right of the thing which distinguishes it also from the Case of Powsley and Blackman cited in Blunden and Baughs Case where the Mortgageor held at the Will of the Motrgageē and let for years the Lessee entred and held notwithstanding that the Mortgagee might Devest So Sir Tho. Fishes Case in Latches Rep. Where Tenant for years Le ts at Will and the Lessée makes a Lease for years and then the remainder is granted over This Grant is held to be good which whether by the remainder there be understood the interest of the Lessee or the Fee-simple yet it is no more than my Lord Nottinghams Case and not like the Case in Question For there the Lessee held the interest in his own Right and here but in Trust and for the Case in Noyes Reports 23. Twisden said he wholly rejected that Authority for it was but an Abridgment of Cases by Serjeant Size who when he was a Student borrowed Noyes Reports and abridged them for his own use The Case was this Tenant in Fée makes a Lease for years then Levies a Fine before Entry of the Lessee It is held there though five years pass the Lessée is not barred which is directly against the Resolution of Saffins Case and for Authority in this Case they relied upon the Case of Isham and Morris in 1 Cro. 781. Where upon Evidence it was resolved by the Justices That if the cesty quo Trust of a Lease for years Purchaseth the Inheritance and Occupies the Land and Levies a Fine that this after five years shall bar the Term which is not so strong as this Case because there were no Leases made and Entry thereupon and the Trust must pass inclusively by the Fine as is resolved in divers Books especially in this Case where it is to wait upon the Inheritance which though it arises but out of a Term yet it shall follow the Land and go to the Heir And for the inconveniences which were objected That if any Man purchased Land by Fine that he could not keep on Foot Mortgages and Leases which it is often convenient to do The Chief Justice declared his Opinion That in that Case the Fine should not bar there not being any intention of the Parties to that purpose And as to the other that where the Mortgageor continuing in Possession Levies a Fine this should bar the Mortgagee he denied that also and grounded himself upon Fermours Case in 3 Cro. And Twisden agreed Dighton's Case HE brought a Mandamus to be restored to his place of Town Clerk of Stratford super Avon The Corporation returned Letters Patents whereby they were empowered to chuse one into the Office of Town Clerk Durante bene placito and that they removed him from his Office Jones prayed that he might be restored notwithstanding because no Cause of his removal was returned nor that they had ever Summoned him whereas if they had he might peradventure have shewed such Reasons as would have moved them to have continued him and he cited Warrens Case 2 Cro. 540. who was restored to his Aldermanship where the Return was as here But the Court held that they could not in this Case although they confessed they knew the Merits of the Person help him And the Chief Justice said The Case of the Alderman differed for he is a part of the Corporation which
had a Scire facias against Noell and Iudgment thereupon Noell brings a Writ of Error and assigned it in this that the Plaintiff confessing the Plea of fully Administred ought to have béen barred And it was argued by Wynnington for the Plaintiff and Sympson for the Defendant Wynnington Where an Executor pleads falsely or deceitfully Iudgment is to be given against him as upon â—he unques Administer come Executor Iudgment shall be de bonis propriis But where he Pleads truly it is the Reason the Plaintiff should be barred and the Plaintiff confessing his Plea It is as strong as if found by a Jury or rather more for Verdicts may be false and therefore Attaints are provided and such express confession as here is is much stronger than an implied Confession sur Demurrer Indeed if upon plene Administravit Assetts are found for part of the Debt Iudgment shall be for the whole 8 Rep. 134. Shipley's Case Because the Plea was false But if an Executor should be liable to be Sued and have Iudgment given against him when he had fully administred it would put a great inconvenience upon him as to be put to charge to defend the Suit and to be in Misericordia And whereas it was objected That if the Plaintiff should be barred in such Case he would yet have no advantage by Commencing his Suit of having his Debt paid before other Debts in pari gradu he answered this inconvenience is not to be matched with that that the Executor should be liable to besides the Law will ever favour the Executor for if an Executor be Sued and the Plaintiff Nonsuit he shall have Costs but an Executor Plaintiff shall pay no Costs upon a Nonsuit 3 Cro. 503. vid. Hob. 83. Lawneys Case Also a Man may be presumed to know whether an Executor hath Assetts or no for he may consult the Inventory And for the Cases that might be objected as that of the Warrantia Chartoe against an Heir who Pleads Riens per descent or that the Plaintiff is not impleaded the Plaintiff may pray Iudgment presently F. N. B. 134. He Answered 't is true the Writ may be brought quia timet for he may be after impleaded in an Action wherein he cannot Vouch yet if he be after impleaded in a Praecipe he must Vouch and this is a line real and the Heir merely in loco patris whereas when an Executor hath fully Administred the Executorship is as it were determined And for the Case where Debt is brought against the Heir who Pleads riens per descent the Plaintiff may pray Iudgment presently to have Execution of Assetts as shall afterwards descend he said he knew no particular Authority where it was so done but if it be so as it is said in Shipleys Case yet not to be resembled to this Case for the Heir is charged as for his own Debt and the Action is in the Debet Detinet Com. 443. and if the Heir Pleads riens per discent and found against him the Iudgment is general not so so of an Executor so where the Iudgment is sur nihil dicit Moor 522. Dier 81. 344. 2 Rolls 67. Tit. Heir so where he confesses the Action but if an Executor after pleading Plene Administravit confess the Action the Iudgment shall be de bonis Testatoris Hob. 178. And for the Opinion in Shipleys Case 8 Rep. which is according to the Iudgment here he said it was obiter but he relied upon Cro. Dorchester and Webbs Case where that Opinion is denied and said there that all the Presidents are that the Plaintiff is in such case to be barred Rastals Entries 323 324. Sympson contra The nature of the Plea is to be considered it both not deny the Cause of Action but goes only to take away the present effect of it remoto impedimento resurgit Actio vel Executio 34 H. 6. 23. Prisot saith If an Executor Pleads ne unques Executor and found against him Iudgment is to be de bonis propriis But otherwise If he Pleads Plene Administravit for then be doth not put the Party from his Action for ever He said the Case of the Action of Debt against the Heir was the same for he is bound only by reason of the Land descended 1 Rolls 929. If an Executor Pleads Plene Administravit and the Plaintiff takes Issue and found against him he is to be barred for he as the Book saith hath waived his advantage he cited also the Book of the Office of Executors 3 Cro. 887. supposed to be written by Doderidge lib. 7. cap. 15. and relied pricipally upon Shipleys Case 8 Co. 134. which is cited and allowed in Hob. 199. And upon a President in this Court Trin. 13 Jac. Rot. 1104. between Perryman and Westwood where Iudgment was just as in this Case and Mich. after Rot. 206. Vpon Suggestion of Assets a Scire facias was taken out and Issue taken and tried at Guild-hall before my Lord Coke where Assetts were found for part and Iudgment to Recover so much and the residue if Assetts should come after which as to the latter Iudgment was somewhat further than the principal Case Keeling Rainsford and Moreton Held clearly that Iudgment ought to be affirmed chiefly for the great inconvenience it would be to one that had Commenced an Action and yet his Debt should have no preference before others of the same sort and many times the Testator leaves a great Estate in Bonds and Specialties which yet are no Assetts until the Money is paid Whereas the Case of the Heir is much stronger in regard of the improbability of his having Assetts in futoro In 16 H. 7. 10. it is said if an Executor Pleads Plene Administravit it is but a Temporal bar A Rent is granted in Fee provided that it shall cease during the minority of the Heir the Wife brings Dower the Heir being under Age she shall have Iudgment sed cesset Executio Vid. Hutton 128. the case reported without any such Opinion Twisden stuck much to the Authority of Dorchester and Webbs Case but at length consented that Iudgment should be affirmed Note The Iudgment was in Misericordia and the Court doubted at first whether it were not Erroneous for that Cause but it appeared that the Executor did not come in primo die wherefore notwithstanding they affirmed the Iudgment Ante. Termino Sancti Michaelis Anno 22 Car. II. In Banco Regis Prydyerd versus Thomas A Writ of Error was brought upon two Judgments given in an inferiour Court and they returned two Records betwéen the same Parties but it seems not those which the Plaintiff intended and this was complained of to the Court and it appeared that those which the Plaintiff brought his Writ of Error upon were not determined for Writs of Enquiry of Damages were returned but no Judgments entred Curia If there be divers Records betwéen the same Parties the inferiour Court may remove which they please they being
Defendant pleaded that the place Where was the Freehold of Sir Thomas Hooke and that by his Command he entred The Plaintiff traverseth That it was the Freehold of Sir T.H. And thereupon this Special Verdict was found That Nicholas Heale was seised in Fee and that 16 Dec. 1640. he made a Deed to Jane Heale Enrolled within six Months by which the said Nicholas did for and in Consideration of Natural Love augmentation of her Portion and preferment of her in Marriage and other good and valuable Considerations give grant bargain sell alien enfeoff and confirm unto the said Jane Heale and her Heirs Then they found there was a Covenant that the said Jane Heale should after due Execution c. quietly enjoy c. and also a special Clause of Warranty And that the Deed was Enrolled within six Months and that there was no other Consideration of making the Indenture than what was expressed And if it were sufficient to convey the Premisses to the said Jane they found for the Plaintiff if not for the Defendant And it was Argued by Winnington for the Plaintiff He agreed that it could not take the effect as a Bargain and Sale because no Money was paid but Argued that the Deed should enure as a Covenant to stand seized It is a Ground in the Law that the intention of the parties ought to guide the raising of Uses and the Construction how they shall enure Co. Lit. 49. Rolls 2d part 789. and to give the effect the words shall be disposed to other Construction than what otherwise they would import As if a man demises grants and to Farm-lets certain Lands in Consideration of Money and the Deed is Enrolled this is a good Bargain and Sale So if a man Covenants in Consideration of Money to stand seised to the use of his Son 8 Co. 93. Foxes Case 2 Rolls 789. it is said Nota per Cur ' if it appears that it was the Intent of him that made the Deed to pass the Estate according to Rules of Law it shall pass though there be not formal Words Again the Consideration expressed in this Deed is purely applicable to a Covenant to stand seised and a Deed shall enure upon the Consideration expressed rather than upon one that is implied As in Bedell's Case 7 Co. 40. If the Father in Consideration of 100 l paid Covenants to stand seised to the use of his Son and the Deed is not Enrolled nothing shall pass But where there are two Considerations expressed there the Vse may arise upon either As if the Father in Consideration of Blood and 100 l paid by the Son Covenants to stand seised c. and the Deed is not Enrolled yet the Vse shall arise as upon a Covenant to stand seised Pl. Com. 305. And so it was Adjudged between Watson and Dicks in the Common Pleas 1656. The Father by Deed in Consideration of Love and 100 l paid by the Son conveyed Land to him with a Letter of Attorney in the Deed to make Livery in that case the Son hath his election to take by the Enrolment or Livery which shall be first Executed 2 Rolls 787. pl. 25. But it hath been Objected here that there is a Clause of Warranty in the Deed which shews that the parties intended a Conveyance at the Common Law for if it enure by way of Covenant to stand seised the Warranty can have no effect but to Rebut Also there is a Covenant for quiet Enjoyment after Sealing and Delivery of the Deed and due Execution of the same which shews the parties had a prospect of Executing it by Livery c. To which he Answered That such remote Implications as those shall never make a Deed void against an express Consideration upon the which an Use may arise 'T is true if there had been a Letter of Attorney in the Deed it might have been void unless Livery had followed As if the Father by Deed grants Land to the Son and a Letter of Attorney in it to make Livery if none be made nothing passes Co. Lit. 49. a. The Authorities which have been cited on the other side are first Pitfields and Pierce's Case 2 Roll. 789. where the Father by Deed Poll in Consideration of Blood did give grant c. as in our Case to his Son Habend ' after his decease and a Proviso in it That the Son should pay a Rent during the Father's Life It was Adjudged That the Lands should not pass in that Case by way of Covenant to stand seised But in that Case the Conveyance was repugnant to the Rules of Law for that it was Habend ' the Land after the death of the Grantor and also repugnant in it self For notwithstanding that it reserves the Land to the Father during his Life yet it provides for a payment of Rent to him wherefore the Law would not help out a Deed so contradictory and repugnant by way of raising an Vse The other Case relied upon is between Foster and Foster Hill 13. of this King in this Court in Ejectment The Case was The Mother for divers good Considerations and 20 l paid did by a Deed which was Entituled Articles of Agreement demise grant bargain sell assign and set over to the Son and his Heirs for ever certain Lands the said Margery the Mother quietly enjoying the Premisses during her Life The Court Resolved that it should not amount to a Covenant to stand seised for they were but intended as Articles of Agreement and preparatory for a further Conveyance So the Case differs very much from ours as also that it reserves the Land to the Mother during her Life The Case also of Osborn and Bradshaw in 2 Cro. 127. hath been cited Where the Father in Consideration of Love which he hears to his Son and for Natural affection to him bargained and sold gave granted and confirmed Land to him and his Heirs the Deed was Enrolled It was held the Land should not pass unless Money had been paid or the Estate executed This Case cannot be urged as any great Authority for it appears that the Son was in possession Therefore the Court Adjudged that the Deed should be a Confirmation and it being clear that way they had not much occasion to insist upon or debate the other Point And he relied upon Debb and Peplewell's Case as an Authority in the Point 2 Rolls 78. 6. where there was a Clause of Warranty in the Deed and an Enrolment within six Months as in the Case at Bar But they Resolved there If a Letter of Attorney had been in the Deed it should not have been construed a Covenant to stand seised and therefore he prayed Judgment for the Plaintiff Finch Attorney General contra The Lands here cannot pass by Bargain and Sale there being no Money paid which I find is admitted by the other side neither shall it amount to a Covenant to stand seised There are Five things necessary to raise an Use by way of Covenant
the first Man for he is only to compound the business if he can Twisden The discharge being set forth in an Order we must intend it duly made 't is the common practice to go to the Sessions first It was moved at first that it did not appear that the Plaintiff had Notice but that Point was waided for being in a judicial proceeding it shall be intended Et Adjurnatur Lucy versus Levington PAsch ult Rot. 96. Covenant by the Plaintiff as Executor of J. S. for that the Defendant covenanted with J.S. his Heirs and Assigns to levy a Fine c. and that they should enjoy the Lands against all persons claiming under Sir Peter Vanlore and then he says that Sir Robert Crooke and Peter Vandebendy in the Testators life time did enter claiming under Sir P. Vanlore c. The Defendant pleads That he had a good and indefeasible Title in the Lands at the time of the Covenant by vertue of certain Fines from Sir Ed. Powel and his Wife but that in 13 Regis nunc there was an Act of Parliament by which these Fines were made and declared to be void and that Sir R. C. and P. Vandebendy had Title and entred by reason of the Act and not otherwise The Act which was pleaded in haec verba recites that certain Men came with armed force and thereby extorted and took the Fines c. And to this the Plaintiff demurred It was urged for the Defendant That this Title was by matter subsequent to the Covenant and not any thing which was in being then as 9 Co. 106. Sir T. Gresham conveys Land to certain uses with power of Revocation and then does revoke and Aliens and dies the Revocation was not warranted by his power but was after made good by Act of Parliament and then Process went out against his Widow for a Fine for the Alienation of Sir T. G. the Lands being of capite tenure but she was discharged because the Alienation had its effectt by an Act of Parliament which can do no wrong Twisden 'T is hard this should be a breach for the Defendant cannot be intended to Covenant against an Act of Parliament a thing out of his power Baron and Feme levied a Fine J. S. Covenants that the Conusee shall enjoy it against all lawfully claiming from B. and F. brings Dower after the Death of B. the Conusee does not plead the Fine but suffers Judgment and brings Covenant against J.S. and adjudged against him for the Covenant shall not extend to a Right which is barred and besides she did not claim lawfully There is an Old Book which says that if an Attainder be reversed by Parliament the person shall have Trespass against him which took the profits of his Land in the interim Hale My Lady Greshams Case is not like this for there the party was in by the Queens consent to the Alienation by the Act she passed but here the Covenant is broken as much as if a Man recover Land and then sell and Covenant thus and then it be evicted in a Writ of Right for this is in the nature of a Judgment Tho' it be by the Legislative power it may be the prospect of this Act was the reason of the Covenant nor has the Defendant reason to complain for the Act was made because of his own fraud and force Every Man is so farr party to a private Act of Parliament as not to gainsay it but not so as to give up his Interest 't is the great question in Barringtons Case 8 Co. the matter of the Act there directs it to be between the Forresters and the Proprietors of the Soil and therefore it shall not extend to the Commoners to take away their Common Suppose an Act says Whereas there is a Controversie concerning Land between A. and B. 'T is Enacted That A. shall enjoy it This does not bind others tho' there be no saving because it was only intended to end the difference between them two Whereupon Iudgment was given for the Plaintiff It was agreed by all the Justices that tho' the Covenant were made only to J. S. his Heirs and Assigns and it were an Estate of Inheritance yet the Breach being in the Testators Life time the Executor had well brought the Action for the Damages Peter versus Opie IN an Assumpsit the Plaintiff declares That there was an Agreement between him and the Defendant that be the Plaintiff should pull down two Walls and build an House c. for the Defendant and that the Defendant should pay him pro labore suo in circa divulsionem c. 8 l and that in consideration that the Plaintiff assumed to perform his part the Defendant assumed to perform his and the Plaintiff avers that he was paratus to perform all on his part but that Defendant had not paid him the Money And after a Verdict for the Plaintiff it was moved in Arrest of Judgment That he did not aver that he had done the work Hale Pro labore here makes a Condition precedent and therefore the performance of the work ought to have been averred for tho' in case of a Reciprocal Promise performance need not be averred yet if the Promise refers to an Agreement which contains a Condition precedent the performance of that must be averred as if I should promise one to go to York and in consideration of that he promise to pay me 10 l there needs no averment of my going to York otherwise if the Counter promise were to pay 10 l for my going to York So if the Counter promise were to do a thing after a time ascertained or to be ascertained it must be averred that the time is past Therefore that it is said by way of Reciprocal promise will not concern much for every Agreement is a Reciprocal promise but the matter is what the Agreement is Here tho' the Reciprocal promise be the foundation of the Consideration yet 't is to be considered that it refers to a Conditional promise or an Agreement and the Promise obliges not the Defendant to do it otherwise than according to the Agreement Now to shew this pro labore makes a Condition precedent Suppose the Agreement to be in writing thus Memorand that J.S. agrees and promises to build and J. N. promises to pay him so much for his pains it cannot be taken but that the building must be precedent to the payment 'T is the common way of Bargaining and in common dealing men do not use to pay before the work be done it would be inconvenient to give cross Actions in such cases especially since 't is likely that the Workman is a poor Man 'T is true if there be a time limited for the payment which time may fall out before the work or thing be done there the doing it is not a precedent Condition Vivian and Shipping 3 Cro. An Award that one should pay 10 l and in Consideration thereof the other should become bound
Car. nunc cap. 3. in pursuance of which he distrained the said Nails for the Duty due by those Acts out of a Smiths Forge c. The Plaintiff demurred So the sole question was whether a Smiths Forge were within the Acts it being once argued the last Term the Court now gave their Opinion Moreton I think a Smiths Forge ought to pay 't is a great part of the Kings Revenue almost in every Village there is one we should explain the Act liberally for the King Rainsford of the same Opinion 't is within the words scilicet an Hearth whereon Fire is used and within the meaning for there is an exception of things not so properly Fire hearths as this viz. Private Ovens Where the Act excepts Blowing Houses I take it is meant Glass houses and the Houses at Ironworks by Stamps I think is meant Presses Calenders for Cloaths by the very words Houses that are not Dwelling Houses are charged The objection that it is his Trade is answered by the instance of Cooks Chandlers Common Ovens Hearths of Tripewomen who boil Neats Feet Twisden of the same Opinion the words are general yet I would not extend it to every Hearth that has a Fire upon it as Stils and Alembicks for so we might extend it to a Chaffing dish of Coals but we must take it for a Rule to extend it to those things which are most general A Smiths Forge is of such use that 't is found almost in every Village therefore 't was reckoned a great piece of hardship and slavery upon the Children of Israel that they were not permitted a thing so useful amongst them The exceptions enumerate particulars therefore it excludes whatever is not expressed Hale I would fain know how the fact is Do Silver Smiths c. pay It were too narrow to extend it only to Common Chimneys and too great a latitude to extend it to every place where Fire is where a Man can but warm his Hands I suppose Boylers in Cooks Chimneys and the Fireplaces of Worstead Combers do not pay Common Ovens should have paid tho' there were no exception of Private Ovens for they never are or can be without a Chimney This is matter of fact I have not enquired into and I would be loath to deliver an Opinion without much inquiry but 't is very probable that they are Firehearths and not excepted but it appears plainly upon the Record that 't is a Firehearth and by the general Demurrer 't is admitted Note There was a Special Rule that no advantage should be taken of the Pleading by either side But Hale said he did not know how they were bound by that Rule Termino Paschae Anno 24 Car. II. In Banco Regis Monk versus Morris and Clayton THe Plaintiff after he had obtained Iudgment in Debt became Bankrupt and the Defendants brought a Writ of Error The Judgment was affirmed in the Exchequer Chamber and the Record sent back Then a Commission of Bankrupts is sued out and the Commissioners Assign this Judgment The Plaintiff Sues out Execution and the Money is levied by the Sheriff and brought into Court The Assignee moves that it may not be delivered to the Plaintiff surmising that the Judgment was assigned to him ut Ante. The Court said they might have brought a Special Sicre facias which they having delayed and that it would be hard to stay the Money in Court upon a bare surmise and for ought appeared it was the Plaintiff's due But however because it might be hazardous to deliver it to him they consented to detain it so that the Assignee forthwith took out a Scire facias against the Defendant in order to try the Bankrupcy or otherwise that it should be delivered to the Plaintiff Sir Ralph Bovyes Case IN an Ejectment upon a Tryal at Bar the Case appeared to be this Sir William Drake was seized in Fee of the Lands in question and 19 Car. 1. infeoffed Sir William Spring and five others to such uses as he should declare by his Will in Writing or by his Deed subscribed by three Witnesses In August 20 Car. 1. by his Deed ut supra he limits the use of the said Lands to his Brother Francis Drake for 90 years and declares That the Feoffees should be seized to their own use in Trust for the said Francis Drake and his Heirs with a power to Francis Drake to alter and limit the Trust as he should think fit In the same Month there is a Treaty of Marriage between F.D. and the Daughter of Sir William Spring and it was agreed by certain Articles between F.D. and Sir W. S. c. reciting that he should receive 2500 l with his intended Wife which Money was proved to be paid that F. D. should convey the Lands in question to himself and his Wife and the Heirs Males of their two Bodies c. for the Joynture of the Wife The Marriage afterwards in 20 Car. takes effect and soon after the same year F.D. by Indenture between him Sir W.S. and another reciting the Articles of Marriage Assigns his Term of 90 years to Sir W. S. and the other in Trust to himself for Life the remainder to his Wife for Life and after to the Heirs Males of their two Bodies and by the same Deed limits the Trust of the Inheritance of the Lands in the same manner Afterwards in 23 Car. 1. he in consideration of 6000 l proved to be paid Grants out of the said Lands a Rent of 400 l per annum to Sir Ralph Bovy and his Heirs with power to enter into the Land in case the Rent was not paid and to retain it until satisfaction Afterwards F. D. and his Wife dye the Rent was Arrear Sir R. Bovy enters Sir Will. Spring and the other Trustees Assign the term of 90 years to Sir Will. Drake Heir Male of F.D. and his Wife the Lessor of the Plaintiff In this case these Points were agreed by the Court. First That when Sir W. D. enfeoffed divers to such Uses as he should declare by his Will or Writing that if he had in pursuance of that Feoffment limited the Uses by his Will that the Will had been but Declaratory tho' if he had made a Feoffment to the Use of his Will it had been otherwise according to Sir Ed. Cleeres Case 6 Co. And Hale said my Lord Co. made a Feoffment provided that he might dispose by his Will to the use of the Feoffee and his Heirs and resolved in that case he might declare the Use by his Will which should arise out of the Feoffment Secondly That this Settlement being in pursuance of Articles made precedent to the Marriage had not the least colour of fraud whereby a Purchaser might avoid it and if there had been but a Verbal Agreement for such a Settlement it would have served the turn And the Court said if there had been no precedent Agreement so that it had been a voluntary Conveyance tho' every such
the Earl of Warwick and the Earl of Manchester or the major part of them And in case she Marries without such Consent or happen to dye without Issue then I give and bequeath it to George Porter viz. the Lessor of the Plaintiff The Earl of Newport dies and the Lady Anne Knolles being of the Age of 14 years marries with Fry without the Consent of her Grandmother or either of the Earls and it was found that she had no Notice of the Will until after the Marriage and that George Porter at that time was of the Age of 8 years and that after the Death of the Countess she Entred and George Porter Entred upon her and made the Lease to the Plaintiff This Case having been twice Argued at the Bar viz. in Michaelmas Term by Sir William Jones for the Plaintiff and Winnington for the Defendant And in Hillary Term last by Finch Attorney General for the Plaintiff and Sir Francis North Solicitor General for the Defendant It was this Term Resolved by the Court viz. Hale Twisden and Rainsford Moreton being absent for the Plaintiff upon these Reasons Rainsford Here have been three Questions made First Whether the words in the Will whereby the marriage of the Defendant is restrained make a Condition or Limitation If a Condition then none but the Heir can Enter for the Breach But 't is clear that they must be taken as a Limitation to support the intent of the Devisor and to let in the Remainder which he limits over 1 Rolls 411. Secondly Whether the Infancy of the Defendant shall excuse her in this Breach and clearly it cannot For a Condition in Deed obliges Infants as much as others 8 Co. 42. Whittingham's Case the difference between Conditions in Fact and Conditions in Law Especially in this Case the nature of the Condition shewing it to be therefore imposed upon her because she was an Infant Thirdly and the main Point of the Case Whether the want of Notice shall save the Forfeiture of the Estate As to that Let the Rules of Law concerning Notice be considered First I take a difference where the Devisee who is to perform the Condition is Heir at Law and where a Stranger The Heir must have Notice because he having a Title by Discent need not take notice of any Will unless it be signified to him And so is Fraunce's Case 8 Co. Where the Heir was Devisee for 60 years upon Condition not to disturb the Executor in removing the Goods and Resolved that he should not lose his Estate upon a Disturbance before he had Notice of the Will But where the Devisee is not Heir as in this Case he must inform himself of the Estate devised to him and upon what terms Another Rule is When one of the Parties is more privy than the other Notice must be given but where the Privity is equal Notice must be taken by the party concerned A Bargainee shall not Enter for a Condition broken before Notice for the Bargain and Sale lies in his Cognizance and not the Lessees So if a Lease be made to commence after the end of the former if the first be surrendred the Lessor shall not Enter for a Condition broken for Non payment of Rent until Notice given of the Surrender 3 Leon. 95. And therefore there shall be no Lapse to the Ordinary upon a Resignation without Notice If a man makes a Feoffment upon Condition to Enter upon payment of such a Sum at a place certain he must give Notice to the Feoffee when he will tender the Money Co. Lir. 211. a. Dyer 354. And upon this Reason is Molineux's Case 2 Cro. 144. where a Devise was that his Heir should pay such Rents and if he made default then his Executors should have the Lands paying the said Rents and if they failed of Payment then he devised the Land to his younger Children to whom the Rents were to be paid It was Resolved Non-payment by the Executors should be no Breach until they had Notice that the Heir had failed which was a thing that the younger Children must be privy to But in 22 E. 4. 27 28. Tenant for Life Lets for years and dies the Lessee must remove in convenient time to be reckoned from the death of the Tenant whether he had Notice of it or no For he in Reversion is presumed to be no more privy to it than himself So Gymlett and Sands's Case 3 Cro. 391. and 1 Rolls 856. where Baron and Feme were Tenants for Life Remainder to the Son in tail Remainder to the right Heirs of the Baron the Baron makes a Feoffment with Warranty and dies then the Feme and Son joyn in a Feoffment this is a Forfeiture of the Estate of F. tho' she had no Notice of the Feoffment or Warranty whereby the Right of the Son was bound So Spring and Caesar's Case 1 Rolls 469. A. and B. joyn in a Fine to the use of A. in Fee if B. doth not pay 10 l to A. before Michaelmas and if he doth then to the use of A. for Life Remainder to B. B. dies before Michaelmas the Heir of B. is bound to pay the 10 l without any Notice given by A. The Reason given which comes home to our Case is For that none is bound to give Notice and then it must be taken tho' indeed a second be added For that B. from whom his Heir derives had Notice The Mayor and Comminalty of London aganst Atford 1 Cro. where a Devise was to six Persons to pay certain Sums for the Maintenance of an Almshouse c. and if through Obliviousness or other Cause the Trusts were not performed then to J. S. upon the same Condition and if he failed by two Months then to the Mayor and Comminalty of London upon the same Trusts The six did not perform the Trusts J.S. enters J. N. enters upon him and a Fine with Proclamations was levied and Five years passed and the better Opinion was that the Mayor and Comminalty of London were bound to pay the Money appointed by the Will altho' they had no Notice that the six persons or J. S. had failed tho' indeed the Case is adjudged against them as being barred by the Fine and Non-claim Sir Andrew Corbet's Case 4 Co. is very strong to this purpose where a Devise is to J. S. until he shall or may raise such a Sum out of the Profits of the Land If a Stranger Enters after the death of the Devisor tho' the Devisee had no Notice of the Will yet the time shall run on as much as if he had the Land in his own possession These Rules being applied to the present Case it will appear no Notice is to be given First The Defendant is as privy to the Will as any one else viz. as George Porter who is found also to be an Infant It is not found whether there were any Executors if it had they were not concerned to give Notice nor did it
But since H. 8. time it had béen for the most part administred by the Dean and Chapter and the Verdict was here for the Dean and Chapter King versus Melling IN an Ejectment upon a Special Verdict the case was this R. Melling seized in Fee having Issue four Sons William Robert Bernard and John devised the Land in question in this manner I give my Land to my Son Bernard for his natural Life and after his decease I give the same to the Issue of his Body lawfully begotten on a second Wife and for want of such Issue to John Melling and his Heirs for ever Provided that Bernard may make a Joynture of all the Premisses to such second Wife which she may enjoy during her Life R.M. dies Bernard in the life of his first Wife suffered a Recovery to the use of himself in Fee and after her decease Marries a second Wife and then by Indenture covenants to stand seized to the use of himself for Life and after to the use of his Wife for her Life for her Joynture and dies J.M. Enters and makes a Lease to the Plaintiff And this Term after Arguments at the Bar the Court gave their Opinions Rainsford for the Plaintiff First I hold in this Case that B. M. takes but an Estate for Life with a Contingent Remainder to the Issue by his second Wife for the Devise is by express words for Life as in Archers Case 1 Co. a Devise to R. A. for Life and after to the next Heir Male of R. and the Heirs Males of that Heir Male Resolved to create but an Estate for Life to R. A. I rely mainly upon Wilds Case 6 Co. which was brought before all the Judges of England where the Devise was to a Man and his Wife and after their decease to the Children and resolved to be but an Estate for Life 't is true there were Children at the time of the Devise but in the end of the Case 't is said that in such Case if there were no Children the Children born after might take by remainder and the first Estate to be but for Life Clerk v. Day 1 Cro. 313. the Devise was to Rose his Daughter for Life and that if she married after his Death and had Heir of her Body then that the Heir after his Daughter's Death should have the Land and to the Heirs of their Body begotten and if his Daughter died without Issue then to a Stranger It was held by Gawdy and Fenner that Rose had but an Estate for Life in this Case 1 Rolls 837. Devise to his eldest Son for Life and after his decease to the Sons of his Body lawfully begotten the Son resolved to have but an Estate for Life The Second point Whether the power to make a Joynture be destroyed by the Common Recovery these powers to make Estates are of two sorts either Collateral as when Executors have power by a Will to sell Land and such a power cannot be destroyed as appears in Diggs's Case 1 Co. or powers appendant to Estates as to make Leases which shall continue after the Estates to which the power is annexed determins and the power in the Case at Bar to make a Joynture are of this second sort and are destroyed by the alteration of the Estate to which it is annexed in privity as 1 Co. Albany's Case is so that the Common Recovery being a Forfeiture of the Estate for Life by consequence 't is an extinguishment of the power Thirdly But admitting the power continues whether it be well executed and I hold that it is not for being seized in Fee at the time of the Covenant to stand seized to the use of his Wife for her Joynture and this without any reference to his power the use shall arise out of his Interest and not be executed by vertue of his power according to the resolution in Sir Ed. Cleeres Case 6 Co. Twisden of the same Opinion As to the first Point it must be agreed that these words Issue of the Body ex vi termini make not an Entail if they were in a Conveyance by Act executed no more than Children as the words were in Wilds Case 'T is true in a VVill a Devise of Land to a Man and his Issue creates an Entail if the Devisee had no Issue at that time for otherwise those words would be void for in regard they are limited to take presently the Issue born after cannot take as by Remainder there being none to take in praesenti they must be intended to be words of Limitation as a Devise to a Man and his Heirs Males makes an Entail or otherwise the word Males must be rejected then seeing the words in themselves are not proper to make an Entail the next thing to be considered is the intention which is to be known by the expressions in the VVill and not any averment dehors the words are J will give my Land to my Son for Life and after his decease I will give the same to the Issue c. so that the Land is given to him expresly for Life Devise of Land in perpetuum makes Fee but if Land be given by Deèd in perpetuum there an Estate only for Life will pass 15 H. 7. A Devise to one paying 10 l this is a Fee 6 Co. Coliers Case But a Devise to one for Life paying 10 l makes but an Estate for Life the Case of Furse and VVinter was Mich. or Trin. 13 Regis Caroli Rot. 1339. A Devise to his two Daughters equally to be divided between them and to the Survivor of them and to the Heirs of the Body of the Survivor This was so expresly to the Surviror that it was resolved to be a Joynt Estate and not in Common The words here are after the decease of Bernard I give the same to the Issue of the Body c. implying that the Issue should take by Purchase as a Gift and not by Descent Again The power given to Bernard to make a Joynture shews that he could not do it by Virtue of his Estate and therefore needed a power to be annexed And tho' such powers are usually affixed to Estates Tail yet when the construction is doubtful what Estate shall pass the giving such a power is an argument that 't is such an Estate that cannot make a Joynture or the like by any other means The words go further and for want of such Issue then to J.M. 'T is true if Land be devised to a Man and if he dies without Issue then to remain over the Devisee shall have an Entail Owen 29. But it shall not be so in this Case because that Clause is crowded in with other Clauses directly to the contrary I rely mainly upon VVilds Case 6 Co. and the Case quoted out of Bendlowes in the end of that Case A Devise to Baron and Feme and to the Men Children of their Bodies begotten because it did not appear that there were any more Children at
Ejectment the Case upon a Special Verdict was to this effect Sir John Danvers being seized of the Lands c. in Tail with the Fee expectant Anno 1646 and in 1647 levied a Fine to the same uses as he was before seized save that a power was reserved to make Leases for any number of years and without reserving any Rent Sir John Danvers did after become Guilty of Treason in Murdring of King Charles the first in 1648 and died in 1655. In 13 Car. 2. cap. 15. the Statute commonly called the Statute of Pains and Penalties Enacts That sundry of the Offenders in that execrable Treason of which Sir J. D. was one should amongst other Penalties there inflicted forfeit all their Lands Tenements and Hereditaments Leases for years Chattels real and interest of what nature or quality soever See the Act of 14 of this King The Lands were by Patent granted to the Duke of York who let them to the Defendant And John Danvers Heir of Sir John Danvers entred and made the Lease to the Plaintiff It had been several times argued at the Bar and this Term Iudgment was given by the Court for the Defendant And Rainsford Chief Justice delivered the Opinion of the Court and the Reasons for himself Twisden Wild and Jones as followeth The question being Whether an Estate Tail were forfeited by the words of the Act of 13 Car. 2. It was observed that all Estates were Fee simple at the Common Law and forfeitable W. the 2. de donis was the first Statute that protected Estates Tail from Alienations and from all Forfeitures of all kinds and so continued until the 12 E. 4. Taltarums Case from which time common Recoveries have been held not to be restrained by the Statute de donis and by the way it must be considered that Perpetuities were never favoured Then came the Statute of 4. H. 7. of Fines which with the explanation of the 32 H. 8. have been always resolved to bar the Issues in Tail so as to Alienations Estates Tail were set free but were not forfeitable no not for Treason until the 26 H. 8. by which they became subjected to Forfeitures in case of Treason and so by 5 E. 6. But 't is true these Statutes extend only to Attainders and 33 H. 8. Vests the Lands c. in the Kings possession without Office Thus having considered the History and Progress of Estates Tail the reasons why such an Estate should be construed to be forfeited upon this Act of 13 Car. 2. are these First The Crime mentioned is of the same nature and with the same aggravations as in 12 Car. 2. by which the Offenders are attainted of Treason c. for they are called Perpetrators of that execrable Treason with many Expressions to the like effect which was looked upon as an offence of that hainous nature that the same Parliament Enacted An Anniversary Humiliation throughout the whole Kingdom to be perpetually observed upon the account of it as if not only they that acted it but the whole Kingdom and their Posterity like to another Original sin were involved in the Guilt of it Nati natorum qui nascuntur ab illis And therefore the Punishment shall not be mitigated in any other manner than is expresly provided by that Act. Secondly It is proved by the generally and comprehensions of the words which are made use of viz. Possessions Rights Hereditaments of what nature soever Interests which does as well signifie the Estate in the ting as that wherein the Estate is which can have no effect if not extended to Estates Tail We must observe also that at the making of this Act entailed Lands were not protected from Forfeitures and tho' 26 H. 8. extends only to Cases where the Offender is attainted yet 't is of good direction to the Judges in Cases of like nature and 't is plain that by this Act of 13 Car. 2. the Offenders were looked upon in pari gradu with these attainted for when the Proviso comes to save the Estates of Strangers c. in trust for whom the Offenders were seized It is said notwithstanding any of the Convictions or Attainders aforesaid Thirdly It is to be observed that the Act takes notice that divers of the Offenders included in this Act were dead now in regard most Lands are known to be entailed if the Act had not intended such Estates to be forfeited it would signifie nothing indeed if the Offenders had been alive it might have been somewhat satisfied with the Forfeiture during their Lives But as the case was it should be of no effect at all after making a great noise of Forfeitures and Confiscations the Act would have been but a Gun charged only with Powder or as in the Fable Parturiunt Montes c. Fourthly It is manifest that the Parliament did not intend that the Children or Heirs of the Persons within the Penalties of the Act should have any benefit of their Estates for in the saving which is made for Purchasers upon valuable Considerations the Wives Children and Heirs of the Offenders are excepted then surely if they would bar them of the benefit of their Purchases à fortiori from inheriting to an Estate Tail especially of a voluntary Entail that seems to be made with a prospect of this Treason which was perpetrated a year after and such an Entail as scarce the like was ever seen before that a power should be reserved to make Leases for any number of years and without Reservation of any Rent By which it is manifest that Sir John Danvers that committed the Treason was fully Master of the Estate Again all Conveyances are avoided by the Act unless such as were upon valuable Consideration which this Fine was not The great case which has been insisted upon by way of objection is Trudgeons Case Co. Litt. 130. Estates Tail were not forfeited upon the Statute of Praemunire but during the Offenders Life For answer to that it must be observed that that Forfeiture is upon the Statute of 16 R. 2. at which times Estates Tail were under thè protection of the Statute de donis but since that time the Judges have not been so strict in expounding Statutes concerning Estates Tail as appears by Adams and Lamberts Case 4 Co. That an Estate Tail given for a superstitious use was within the Statute of 1 E. 6. cap. 4. where the words are generally and not so large as in our case nor so much to demonstrate the intent as is in our Act to extend to Estates Tail wherefore Iudgment was given for the Defendant Note They that argued for the Defendant endeavoured to maintain that if it should be admitted that Entails were not forfeited by the Act yet the Estate of Sir John Danvers in those Lands would be forfeited in regard he levied a Fine in 1647 and the Act of 13 Car. 2. extends to all Lands c. whereof the Persons therein mentioned were seized c. since 1646 and he being
cannot tender an Oath to the party sued nisi in causis Matrimonialibus Testamentariis But the Court after hearing divers Arguments denied the Prohibition for they said It was no more than the Chancery did to make Defendants answer upon Oath in such like Cases Termino Sanctae Trinitatis Anno 31 Car. II. In Banco Regis How versus Whitfield ante in ult ' Term. IN Repl the Plaintiff declares of the taking of his Cattle in a Close containing five Acres The Defendant avows and sets forth a Fine to the use of A. in Tail which discended to him Virtute cujus he was seised in Dominico ut de feodo talliato c. The Plaintiff Replies that the Fine was first to the use of J. S. for Life the Remainder to his Executors Administrators and Assigns for 80 years with Power to him and his Assigns to lett the five Acres in Possession or Reversion for 21 years determinable upon three Lives reserving the ancient Rent and that J. S. Devised this Term to J. N. and died his Executors assented and after it came to the Executors of J. N. who assigned it and that the Assignee made a Lease of the said five Acres inter alia reserving proinde the Rent of 6 s per annum and avers that the ancient Rent was 6 s per annum The Avowant Rejoyns setting forth his former Title And the Plaintiff Demurrs It was Objected First That the Plaintiff ought to have traversed the Seisin in Tail alledged by the Avowant seeing in his Replication he sets forth and intitles himself under an Estate inconsistent with it To this it was Answered and the Court agreed that there ought to be no Traverse for the Avowant doth not say it was his Freehold or that he was Seised in Tail but only under a Virtute cujus c. And the Plaintiff in his Replication sets forth a Title consistent with all that the Avowant alledges and so confesses and avoids and all depends upon the execution of the Power And for that Secondly It was Objected That he which made this Lease was not Assignee of J. S. for Executors were not within the Power and consequently not their Assignee This is a Power collateral to the Estate and shall not run with the Land for then Assignees of Commissioners of Bankrupcy the Vendee of the Term by the Sheriff upon an Execution c. should execute this Power It is like Covenants annexed to Leases which the Assignee could not take advantage of till 32 H. 8. Again Here appears to be no good Reservation for the Lease is of the five Acres inter al' reserving proinde so that the Rent issues out of other Lands as well as the five Acres and therefore cannot be said to be the ancient Rent reserved upon that The Court were all of Opinion that the Assignee in this case might execute the Power and conceived that Assignees might include Assignees in Law Vid. Mo. 855. as well as Fact but however the Tenant for Life devising this Term the Devisee was an Assignee and the Power in the greatest strictness of acceptation was in him and consequently must go to his Executors and by the same Reason to their Assignee As to the Reserving the Rent proinde the Court said it might be intended that the inter al' might comprehend nothing but such things out of which a Rent could not be reserved and then the six Shillings was reserved only for the five Acres However the proinde might reasonably be referred only to the five Acres and not to the inter al and that a distinct Reservation of Six shillings might be for five Acres And so Judgment was given for the Plaintiff Ante. Steed versus Berrier ERror upon a Judgment given in the Court of Common Pleas upon a Special Verdict the Case was to this effect J.S. made his Will in Writing and devised Lands to his Son J.S. and his Heirs and in the same Will gave a Legacy of 100 l to his Grandson The Son died afterwards in his Life time after whose decease J. S. the Grandfather made a Codicil wherein he gave away part of the Lands devised as aforesaid to a Stranger and afterwards declared by Parol that his Intention was that his Grandson J. S. should have the Lands which his Son J. S. should have had The Question upon this Special Verdict was Whether this were sufficient to carry the Lands to the Grandson And Judgment was given in the Common Pleas by three Judges against one that it was Whereupon a Writ of Error was brought in this Court Finch Solicitor Argued that this Will was sufficient to carry it to the Grandson He agreed Brett and Ridgen's Case in Pl. Com. that a Devise to a man and his Heirs who dies in the Life of the Devisor a new Publication will not be enough to make the Heir take by the Will because named in the Will by way of Limitation of the Estate and not Designation of the Person that should take But in Fuller's Case in the 1 Cro. 423. and in Mo. 2. where the Devise was to his Son Richard and the Heirs of his Body which Richard afterwards died in his Life time and then the Devisor said My Will is That the Sons of Richard my Son deceased shall have the Land devised to their Father as they should have had if their Father had lived and died after me There Popham and Fenner held that this new Publication would carry the Land to Richard's Son Gawdy and Clench contra But our Case is much stronger for there Heirs of the Body were used only for Limitation but in the Will here where the words are I Devise to my Son J. with this new Publication the Grandson J. may take because a Grandson is a Son and when a Will is new Published it is all one as if it were wrote at the time of such Publication Beckford and Parncot's Case in the 1 Cro. 493. Mo. 404. Devise of all his Lands and after the Will the Devisor purchaseth other Lands and then publishes it again it will carry the new purchased Lands Dyer 149. Trevanian's Case Cestuy que use before the 27th of H. 8. Devised the Lands a new Publication will pass the Lands executed in him by the Statute The Opinion of the Court inclined to Reverse the Judgment they held it to be the same with Fuller's Case in the 1 Cro. that no Parol averment can carry Lands to one person when the words of the Will plainly intended them to another They agreed If a man having no Son but a Grandson deviseth his Lands to his Son the Grandson may take But here is an opposition contained in the new Publication viz. Those Lands which my Son J. should have had my meaning is my Grandson J. shall have And in the Will it self there is a Legacy devised to the Grandson by that Name so where they are so distinguished 't is impossible to take the Grandson to be
makes a Lease for the Life of the Lessee not warranted by the Statute and dies leaving B. in Remainder his Heir B. let ts for 99 years to commence after the death of the Tenant for Life reserving Rent and then the Tenant for Life surrenders to B. upon Condition and dies B. suffers a Recovery with single Voucher and dies the Lessee for years enters the Heir of B. distrains for the Rent and the Lessee brings a Replevin and upon an Avowry and Pleadings thereupon this Case was disclosed to the Court of Common Bench and Judgment given there for the Avowant and Error thereupon brought in this Court For the Plaintiff in the Error it was Argued That the Lease being derived out of a Reversion in Fee which was Created in A. upon the Discontinuance for Life and the New Fee vanishing by the Surrender of the Tenant for Life for it was urged he was in his Remitter altho' the taking of the Surrender was his own Act that the Lease for years by consequence was become void Again It was Objected against the Common Recovery that the Tenant in Tail and a Stranger which had nothing in the Estate were made Tenants to the Praecipe and therefore no good Recovery Again In case B. were not remitted after acceptance of the Surrender then he was Seised by force of the Tail and so no good Recovery being with single Voucher On the other side it was Argued to be no Remitter because the acceptance of the Surrender was his own Act and the Entry was taken away But admitting it were a Remitter because by the Surrender the Estate for Life which was the Discontinuance was gone and it was no more than a Discontinuance for Life For if Tenant in Tail letts for Life and after grants the Reversion in Fee if the Lessee for Life dies after the Death of the Tenant in Tail so that the Estate was not executed in the Grantee during the Life of the Tenant in Tail the Heir shall immediately Enter upon the Grantee of the Reversion Co. Litt. It seems also to be stronger against the Remitter in this case because 't is not Absolute but only Conditional However the Lease may be good by Estoppel for it appears to have been by Indenture and if the Lessor cannot avoid the Lease the Lessee shall without question be subject to the Rent But it was Objected against the Estoppel that here an Interest passes and the Lease was good for a time As if the Lessee for Ten years makes a Lease for Twenty years and afterwards purchaseth the Reversion it shall bind him for no more than Ten. To which Pemberton Chief Justice said The difference is where the party that makes the Estate has a legal Estate and where a Defeasible Estate only for in the latter a Lease may work by Estoppel tho' an Interest passed so long as the Estate out of which the Lease was derived remained undefeated As to the Recovery it was held clearly good altho' a Stranger that had nothing in the Land was made Tenant to the Praecipe with the Tenant in Tail for the Recompence in Value shall go to him that lost the Estate and being a Common Assurance 't is to be favourably Expounded Et Adjornatur Termino Sancti Hillarij Anno 33 34 Car. II. In Banco Regis Anonymus IN Error upon a Judgment in Ejectione Firmae in the Common Pleas where the Case was That the Bishop of London was seized injure Episcopatus of a Mannor of which the Lands in question were held and time out of mind were demised and demisable by Copy of Court Roll for Life in Possession and Reversion and J.S. being Copyholder for Life in Reversion after an Estate for Life in Ann Pitt and J.N. being seized of the Mannor by Disseisin J.S. at a Court holden for the Mannor in the name of J. N. surrendred into the Hands of the said J.N. the Disseisor Lord to the used of the said Lord. Afterwards the Bishop of London entred and avoided the Disseisin Ann Pitt died and an Ejectment was brought by J. S. And it was adjudged in the Common Bench that he had a good Title and now upon a Writ of Error in this Court the Matter in Law was insisted upon by Pollexfen for the Plaintiff in the Writ of Error That this Surrender to the Disseisor Lord to the Lords own use was good for all the Books agree a Copyholder may Surrender to a Disseisor of the Mannor to the use of a Stranger and why not to the Lords own use As if Lessee for years be ousted and he in Reversion disseised and the Lessee Releases to the Disseisor this extinguishes his Term. Here is a compleat Disseisin of the Mannor by Attornment of the Freeholders without which the Services cannot be gained and the Copyholders comeing to the Disseisors Court and by making Surrenders c. owning him for their Lords tantamounts Serjeant Maynard contra And he insisted that this Surrender was not good for the Disseisor had no Estate in this Land capable of a Surrender for the Copyholder for Life continuing in Possession and never having been ousted there could be no Disssesin of that And he endeavoured to distinguish it from a Surrender to a Disseisor Lord to the use of another for in such Surrenders the Lord is only an Instrument and does but as it were assent and until admittance the Estate is in the Surrenderer And he resembled it to the Attornment of a Tenant when è converso a Seigniory is granted and he put Cases upon Surrenders of Leases that they must be to one that hath the immediate Reversion as an under Lessee for part of the Term cannot Surrender to the first Lessor and he cited a Case of Lessee for years Remainder for Life Remainder in Fee to a Stranger he that had the Fee enfeoffed the Tenant for years by Deed and made Livery and the Conveyance held void for it could not work by Livery to the Tenant for years who was in Possession before and a Surrender it could not be because of the intermediate Estate for Life and it could not work as a Grant for want of Attornment He said it had been commonly received that a Common Recovery cannot be suffered where the Tail is expectant upon an Estate for Life not made Tenant to the Praecipe which he said was true in a Writ of Entry in the Post which are commonly used And the true reason is because such Writ supposes a Disseisin which cannot be when there is a Tenant for Life in Possession But as he said a Common Recovery in such case in a Writ of Right would be good Pemberton Chief Justice said his reason of Desseisin would overthrow Surrenders to the use of a Stranger for if the Possession of the Copyholder would preserve it from a Disseisin then was it pro tempore lopped off or severed from the Mannor and then no Surrender could be at all Et Adjornatur Berry
Indicted of Perjury in a voluntary and Extra judicial Oath and cited a late Case where one had stole away a mans Daughter and went before a Justice of the Peace and Swore that he had the Fathers Consent and this in order to get a Licence to marry her and he was Indicted and Convicted thereupon And all the Court said that it was not the course to quash Indictments of Perjury Nusance or the like but to put the party to plead to them Termino Paschae Anno 36 Car. II. In Banco Regis Duncomb versus Walter IN an Indebitat ' Assumpsit by an Assignee of Commissioners upon the Statute of Bankrupts upon Non assumpsit a Special Verdict was found upon which the Case appeared to be thus One Staly was Arrested by an Executor of his Creditor 6 Sept which was before Probat of the Will and within two or three days after he paid 1000 l to the Defendant to whom he stood Indebted in such Sum and after the 18th of September he yielded himself to Prison upon the said Arrest The Question was Whether the Defendant should be obliged to Refund this Money which was paid unto him as aforesaid First Whether the Arrest before the Probat was a good Arrest It was said If an Executor hath a Reversion in a Term upon which a Rent is reserved and Distrains c. he may avow for the Rent before the Probat Vid. 1 Roll. 917. tit Executors where an Executor brings an Action before Probat yet if he shews the Probat upon the Declaration 't is well enough Secondly Whether when he yields himself to Prison it shall not relate to the first Arrest to make him a Bankrupt from that time This depends upon the Statute of 21 Jac. cap. 19. where it is said that in the Cases of Arrest and lying in Prison he shall be adjudged a Bankrupt from the time of his first Arrest Object This Relation doth not prejudice Strangers Answ Dame Hales's Case Pl. Com. 293. If one giveth another a mortal Wound and then sells his Land and the person dies there shall be such Relation as to make the Land forfeit from the first Stroke Note This Case came by Writ of Error out of the Common Pleas where Judgment was given for Walter and the said Judgment was affirmed in this Court principally upon the point of Relation For the Court said that it would be a great mischief if it should relate to the first Arrest as to the payment of Money to Strangers Termino Sancti Hillarij Anno 1 2 Jac. II. In Banco Regis Herring versus Brown Quod vid. ante Michaelmas 35 Car. 2. THe Case upon a Special Verdict was to this effect That J. S. being Seised in Fee had made a Conveyance of his Estate to the use of himself for Life with divers Remainders over to other persons with a power of Revocation by Writing under his Hand and Seal c. Afterwards the said J. S. having a purpose to Revoke the said Uses and make a new Settlement of his Estate he levied a Fine and after the Fine he made a Deed wherein he expressed that he Revoked the former Uses and so proceeded to a new Limitation by that Deed and declared that the Fine by him limited should be to the Vses of the said Deed. The sole Question was Whether the Fine had extinguished his Power and by consequence forfeited his Estate or Whether the Fine and Deed should be taken as one Conveyance and so be a good execution of his Power and new limitation of the Uses And after many solemn Arguments it was Resolved by the Chief Justice Herbert Holloway and Wright that the Fine was an extinguishment of his Power and that the Deed came too late contrary to the Opinion of Justice Withens Vido ante ADDENDA Termino Sanctae Trinitatis Anno 26 Car. II. In Banco Regis Pibus versus Mitford Intratur Trin. 20 Car. 2. Rot. 703. IN an Ejectment the Jury find a Special Verdict to this effect viz. That Michael Mitford was seiz'd of the Lands in question and of divers other Lands in Fee and having Issue Robert by one Venter and Ralph by Jane his second Wife did 23 Jan. 21 Jac. by Indenture Covenant to stand seized of some of the Lands to the use of himself for Life Remainder to Trustees for years for several purposes Remainder to Jane his second Wife for Life Remainder to Ralph and the Heirs Male of his Body And as to the Lands in question he Covenants to stand seiz'd To the use of his Heirs Male begotten or to be begotten on the Body of his second Wife and died And then the Jury made this Special Conclusion If any Use did arise by the Deed to Ralph then they find for the Defendant and if not they find for the Plaintiff This Case was Argued several times at the Bar and now the Judges delivered their Opinions seriatim Wild Justice for the Defendant We are to give our Opinions upon a Deed of Uses made for the Provision of younger Children not otherwise provided for But if the Case were not so It is a safe way when the Words are ambiguous to follow the Intention of the party appearing in the Deed. I shall not maintain that Ralph is a Purchaser and so make this an Executory Use I agree a man cannot either by Conveyance at Common Law by Limitation of Uses or Devise make his right Heir a Purchaser I agree also Griswold's Case in Dyer 156. and if this Case had operated by Transmutation of Possession this Limitation to the Heirs of the Body of the Covenantor had been void and no Use should have risen But here in the Case of a Covenant to stand seiz'd nothing moves out of the Covenantor he retains the Land and directs the Use and keeps sufficient in him to maintain this Use There 's a great difference between a Conveyance at the Common Law and a Conveyance to Uses At the Common Law the Heir cannot take where the Ancestor could not but otherwise it is in case of Uses 2 Rolls 794. and so is Wood's Case 1 Co. 99. a. cited in Shelly's Case This I say to shew that the Intent of the Parties shall be the Guide and that there is a difference between Conveyances at the Common Law and Conveyances to Uses Horwood's Opinion in Hussey's Case 37 H. 8. comes to our Case There 's no great difference between a Covenant to stand seiz'd and a Feoffment to Uses I will not Argue to prove that this Deed shall enure as an Executory Use because 't is against a Rule in Law taken by my Lord Hobart and so Agreed before his time But here Ralph is Tenant in Tail Michael his Father being Tenant for Life Remainder to his Heirs Male begotten on the Body of Jane his second Wife For the Law to preserve this Limitation to the use of his Heirs Male c. will by Implication create an Estate for Life in Michael
because the Intent of the parties appears that it should be so There 's no great difference between the Construction of a Deed of Uses and a Will 13 H. 7. The Wife takes an Estate for Life by Implication where the Land is devised to the eldest Son after her decease Manning and Andrew's Case in 1 Leon. 259. The Reason of these Cases is the fulfilling of the Intention of the Parties and here this Limitation cannot be made good by way of a Future Use nor by any other way but only by creating of an Estate for Life in Michael the Father by Implication and this is according to the nature of a Covenant to stand seiz'd For the Use is not to pass out of the Covenantor till the proper time for the subsequent Estate to commence As to my Lord Paget's Case 't was his Intention to have the Use during his Life And my Lord Coke was certainly very well satisfied with the Resolution in Fenwick and Mitford's Case when he wrote his Institutes for he Argued before to the contrary as appears by the Report of that Case in Moor. Rainsford Justice to the same Intent If no Use rises immediately to Ralph yet if a Use rises by the Deed so that he has the Land any way be it by discent from his Father 't is within the Conclusion of the Verdict By the scope of the Conveyance it appears that it was intended that Robert should never have his Land till Twelve hundred Pound was paid for the provision of younger Children so that if Robert should have it it would be against the Intention of Michael There are two Reasons and Grounds in Law by which we may make this Deed agree with the Intention of the Parties First Because it is in the Case of an Estate Tail ubi voluntas donatoris observari debet Secondly It is in a Conveyance setled by way of Use and in Cases of Uses the Intention of the parties ought to be pursued And this is in Case of a Use that rises by Covenant to stand seiz'd which makes the Case the stronger And I conceive this is not a void Limitation but such an one as gives an Estate to Ralph In speaking to which I shall observe what my Lord Coke in the 1 Inst 23. says viz. That so much of the Use as the Owner of the Land does not dispose of remains in him c. and so in Cownden and Clark's Case in Hob. 30. And this is the Reason of Bingham's Case 1 Co. 91. Now here when Michael Covenanted to stand seiz'd to the Vse of his Heirs Male on the Body of his second Wife begotten I conceive he shall retain the Land as parcel of his ancient Vse during his Life for non est Haeres viventis according to Archer's Case 1 Co. And that Michael shall retain an Estate for Life is prov'd by my Lord Paget's Case 1 Co. 154. Dyer 310. N. 79. 1 Co. Chudleigh's Case 129. 2 Rolls 788. 21 H. 7. 18. From my Lord Paget's Case upon which I shall rely and the other Cases it appears that were there 's a Limitation to one after the death of another the Covenantor shall retain the Land during the Life of the other and here in our Case this Estate not taking effect till after the Death of Michael he shall retain the Estate and shall be Tenant for Life of the old Vse Now the Question is Whether Ralph shall take by Discent or Purchase And I conceive this Estate for Life with the Remainder in Tail makes but one Estate Tail in Michael and that he becomes Tenant in Tail and so Ralph shall take as Heir in Tail I shall not trouble my self whether Ralph may take here as a Purchaser because in Cownden and Clark's Case in Hob. it is Resolved that he cannot take as Heir Male of the Body by Purchase because all the words are not verified in him for he is not Heir I shall rely upon the First Point That here is an Estate Tail executed in Michael For when an Estate for Life is in the Auncestor by way of Retainer and an Estate is afterwards limited to his Heirs this is within the Rule put in Shelley's Case in 1 Co. where the Auncestor takes an Estate of Freehold and by the same Conveyance an Estate is limited to his Heirs Mediately or Immediately they are Words of Limitation and not of Purchase because the Heir is part of his Father Our Case is stronger that Fenwick and Mitfords Case It s true the same Reason for that Case is not given by Anderson and More which is given by my Lord Coke More 437. There the Reason is because the Limitation to the right Heirs is merely void here Michael hath an Estate in Tail of the ancient Use therefore 't is not necessary for the Law to create an Estate for Life Obj. That this cannot be an Estate Tail executed in Michael because the Estate for Life is not by the same Limitation but by Construction of Law But my Lord Coke says in Fenwick and Mitfords Case 1 Inst 22. b. that there is no difference where the Estate is created by Law and where by the Deed. 1 Anderson 259. and the Law retaining an Estate in Michael for Life our Case is the same as if the Estate had been limited to him with the Remainder to his Heirs Male begotten on his second Wife which would be an Estate Tail executed in Michael and would have discended to Ralph Twisden Justice for the Plaintiff I hold there 's no Use raised to Ralph by this Deed. We are here in the construction of a Deed and not of a Will It may be an Estate should be raised in such a case by a Will altho' my Lord Hobart is of a contrary Opinion I agree the Case of Hodgkinson and Wood Cro. Car. 23. but it cannot be argued from thence that it shall be so in a Deed for a Devise is not to take effect till after the Death of the Devisor and then 't is apparent that he is Heir Male of his Body It hath been agreed that Heirs Male of the Body are words of purchase It is plain that Ralph cannot take as Special Heir unless by Purchase and that he cannot do because he who shall take by virtue of such a Limitation ought to be Heir as well as Issue Male and Ralph here cannot take by vertue of the Statute de Donis Conditionalibis because none can take as Special Heir but where his Ancestor took before and therefore this Limitation is utterly void To make this Limitation good divers ways have been urged First That this Deed has an operation by way of returning of the Use and it has been compared to my Lord Pagets Case which differs from it here cannot be any part of the old Use in Michael for if he hath an Estate for Life it ought to be a new Use It cannot be a returning Use for the Limitation to the Heirs Male of the Body
of Jane the second Wife is void and it cannot be returning where the Use is not setled in any Person I agree my Lord Pagets Case because there the Estate was vested in William Paget and the other Use returned by operation of Law and the Estate setled could not be divested but here the Limitation to the Heirs Males being void the ancient Use remained yet in Michael for nothing was out of him he having limited a thing which cannot be And as to a returning Use tho' all be done in an instant yet there is a priority of time in the Eye of the Law for it ought to vest first in him in Remainder and then Return but here nothing vests in the Remainder Secondly It hath béen urged That it shall be made good by Implication of Law and so shall amount to a Covenant to stand seized to the Used of the Covenantor for Life c. and the rather as it has béen said by Wild because Uses are guided by Equity But I answer we are here in case of a Deed where an Estate shall not be raised by Implication as it shall by a Will Cro. Car. Seagood ad Hone 366. A Deed differs greatly from a Will for if a Man Surrenders Copyhold Land to two equally to be divided they are Joynt-tenants but such a Devise would have made them Tenants in Common Admit in some Case an Estate shall be raised by Implication in a Deed yet it shall not be so here for it would be to the disinheriting the Heir As to the case of 13 H. 7. I agree that a Devise to the Eldest Son after the Death of the Wife gives an Estate for Life to the Wife but otherwise it would be upon such a Devise to the Younger Son for there the Eldest Son and not the Wife should have the Estate in the mean time Cro. Jac. Horton and Horton 57. We are not herein Favorabili materiâ and therefore no construction shall be made which does not appear by the words It hath béen strongly urged that this being by way of Use which is a matter of Equity shall be favoured Admit it yet it shall be guided by the Common Law for aequitas sequitur legem There never shall be a Settlement by way of Use to make one capable who is not capable by the Common Law I do not see any difference between a Feoffment to Uses and a Covenant to stand seized for if a Feoffment be made to the use of one for Life the Use shall return which is not disposed of as well as upon a Covenant to stand seized Thirdly It has been urged if these severally cannot support this Limitation yet the intention operating with the Deed will both together make an Estate for Life in Michael But I do not see his intent here to have it for Life the intention even in a Will which is much stronger ought to be collected out of the words of the Will. Cro. Car. Spirt and Bence 368. agreed by the whole Court that words in a Will ought to have an apparent intent to disinherit an Heir and here there is not any apparent intent but rather to the contrary for of some Lands Michael Covenants to stand seised to the Use of himself for Life Remainder c. but of the Lands in question he makes a difference in the Limitation And the words of the Deed are to be considered He Covenants to stand seized to the Uses mentioned declared and limited in the Deed and if Michael shall have an Estate for Life he must have it by operation of Law There was a like case between Flavil and Ventroise in the Common Pleas in which the Court was divided but the same Point came afterwards in question in the Case of Mr. Tape of Norfolk and it was adjudged to be the ancient Use And no Case can be shewn that the Law will create an Estate in the Covenantor where the Use is not vested in any Person but the ancient Use remains in him As to the Cases cited on the other side I have answered my Lord Pagets's Case already And as to my Lord Cokes Case 1 Inst 22. b. I agree the Use returns and the Son is in by discent and so it was adjudged in Fenwick and Mitfords Case there cited But the Paraphrase he makes there I do not understand It is said there when the Limitation is made to his right Heirs and right Heirs he cannot have during his Life the Law doth create an Use in him during his Life Wherefore is this said to make the Heir in by discent No doubt without this he is in by discent and so was the Iudgment in that Case for what Reason then should there be an Estate for Life raised by the Law to be merg'd by the Fee as soon as raised And there 't is said Till the future use come in Esse I do not conceive then where it is so long as the Father lives and what he means by the Future Use I do not know for it always was in Esse and never was out of the Feoffor and this was so adjudg'd in that Case of Fenwick and Mitford and not the construction of my Lord Coke And t is strange that no other Reports should mention his construction Hale Chief Justice for the Defendant If Ralph takes either by Discent from Michael or by Purchase the one way or the other answers the Verdict and the Issue is for the Defendant I shall divide the Case into two Points 1. If he takes by Discent 2. Admitting he does not If he may take by Purchase as this Case is I shall Premise two or three things First It has been agreed if an Estate for Life be raised to Michael the Remainder being to his Heirs Male of the Body of Jane his second Wife the Estate Tail is executed in him be the Estate for Life raised by Implication or express Limitation Secondly It is plain quacunque via It be rais'd that the Estate was long'd in Michael till Ralph the Son be in a capacity to take it either by Discent or Purchase for be it part of the ancient Use or a new Use it ought to be in Michael during his Life for there is nothing to bring it out of him Thirdly In all Cases touching Uses there is a great difference between a Feoffment to Uses a Covenant to stand seized and a conveyance at the Common Law If a Man by Feoffment to uses conveys Land to the use of J.S. for Life he may remit the Use to himself and the Heirs Male of his Body by the same Deed and so alter that wich was before a Fee simple and turn it into another Estate but if A. gives Land to B. for Life Remainder to A. and the Heirs Male of his Body because a Man cannot give to himself the Remainder is void for a Man cannot convey to himself by a Conveyance at the Common Law These things being premised I conceive here is an
Circumstance that Special Matter or Circumstance must be shewn to the Court by him that would have the advantage of the Prescription for the Negative cannot be averred on the other side And it cannot be helped by supposing there may be Trees Mines or Park but it ought to be shewn for every thing that depends upon supposition may as well not be as be and to allow a Prescription upon such a supposal would be to bind up a party by it tho' the thing be not and Pasturage may well be supposed the whole profit of Pasture Ground for it is so in fact in many places and has its name because it is fed all the year But Where it is fed but part of the year and mowed or plowed the rest it is called Arable or Meadow The main Objection that I conceive they can make to this is That the Sole Pasturage or Vesture lies in Grant and the Owner may exclude himself wholly by Grant and so he may be excluded by Prescription or Custom and this they ground upon Co. Litt. 4 b. where it is said if a Man Grants to another and his Heirs vesturam terrae and makes Livery secundum formam Chartae yet the Freehold of the Soil shall not pass by which it is implied that the Vesture shall If this Book be to be understood of the Vesture at all times of the year where no other profits remain to the Lord I shall crave leave to object against it from the same Page where it is agréed that if it were profits the Soil would pass Methinks it should be the same in reason where the Vesture is all the profits and Vesture shall be intended all the profits I shall cite some Authorities which are not inconsiderable to Warrant this Opinion I have in a Manuscript Report of Cases in King James's time a Case betwixt Collins and the Bishop of Oxford It was Paschae 19. Jacobi upon a Tryal at Bar in the Kings Bench. The Case was that 1 Ed. 6. the King erects the Bishoprick of Oxford and gave to the Bishop and his Successors in t ' al' primam vesturam of a Meadow called Horse Meadow John Bridge Bishop of Oxford leased it for three Lives rendring Rent and dies his Successors before restitution of the Temporalties accepted the Rent of the Lessee and afterwards entred upon him Vpon this Case the first question was what passed by the Grant of prima vestura My Report says That it was agreed by all the Justices that by a Grant of Vestura Terrae by a common Person the Soil will pass and then there must be a Livery of consequence but they held a Grant of prima vestura was but like a Grant of prima tonsura and being for no certain time is but an Interest in the first cutting or taking of the Grass But they all agreed that if a Man Grants primam vesturam from such a day to such a day certain the Grantee shall have the Soil and Mow it or Feed it as he pleases Kelway 118. If a Man Grants vesturam Terrae for term of Life to another it is a Grant of the Land for Life for saith the Book the vesture is the profit of the Land and it is all one to have the profit as to have the Land it self Littleton puts the Case if a Man Grants the Vesture of Land to another and his Heirs without Livery no Estate passeth But the Book of my Lord Cokes difference betwixt the Vesture of the Land and the profits of the Land seems to be mistaken and in reason they are the same for I take it generally speaking Vesture shall be intended all the profits and if there be special profits as Mines opened or Waters c. which may qualifie the word and retain the Soil to the Owner it must be shewn And as it is for Vesture of Land so I conceive where it appears in Pleading that the Ground is Pasture Pasturage or Sole Feeding will signifie all the profits for Pasture is properly that which is wholly for Feeding and where the Sole Pasture is claimed the Owner cannot claim or take any other profit Temps E. 1. tit Partition 21. Two Men agree to make partition of Pasture Ground in this manner That one shall have totam pasturam from such a time to such a time and the other for the residue of the year this is a partition of the Soil it self which shews Pasture is to be intended the whole profits of Pasture Ground in that case the quo jure could not be maintained for the party had not barely a Liberty but the Soil it self If several Men have Profits upon the same Land alternis vicibus the Law most commonly determines the right of the Soil to be in him that has the most considerable Profits As for Example If one has the Summer Feeding of Pasture or the first Tonsure of Meadow or the Sowing and Reaping of Corn upon Arable and an other Man has the Feeding separately at other times of the year the Law saith that the Soil is in him that has the Summer profits and Corn because it is the greater Profits and the other hath but a Profit a prender Now suppose that two Men have interchangeably the sole Feeding of Pasture at such times that the interest of one is in all respects equal to that of the other there nothing can determin the Soil to be in one more than the other and therefore it shall be in one for his time and in the other for his time But where one has the sole feeding of Pasture at all times in the year and it has been so time out of mind and there is nothing but Pasture what can the other have to shew the Soil to be in him and why should it not be said to be in him that has the Feeding or whole Profits It seems very absurd that a Man should be allowed to be Owner of the Soil and yet it may be has no badge of Ownership by Perception of Profits If the Mans Estate be displaced so as to be put to a Writ of Right how should he lay the Esplees And as to this Consideration there may be difference betwixt a Grand and Vsage for a Grant beginning within time of Memory the Ownership of the Soil was once fully manifested until he had divested himself of all but that but upon Vsage time out of mind nothing can be said why one Man should have the Soil more than another if it be not in him that hath all the Profits I must end this Point also with this Observation That if there is no Case in all the Books of a Sole Pasture at all times of the year but in F. N. tit Prescription 51 and 55 and Hutton 45. It is made a Profit a prender and the most considerable Proâ—â—ts are left to the Owner My fourth Reason upon which I hold this Prescription is void is because it is a new invention framed to overthrow
George because being descended from an Alien the Law takes no notice of them as to this purpose otherwise 't is if the said Nicholas had been a Denizen born and Attainted because in such a case though he could not take himself by Discent he could obstruct the Discent to the younger Brother so the Land would Escheat Thirdly That the Case of George the Son naturalized and the Case of John his Son as in reterence to John the Earl and the Discent from him will be all one if George had survived him John the Earl might have inherited so will John his Son who jure Representationis is the same with his Father Et è Converso These things being unquestionably to be admitted before I come to the Argument of the Case I shall premise certain General Observations First Touching Discents Secondly Touching the Capacities of Incapacities of an Alien Thirdly Touching Naturalizations Touching Discents I shall consider First The Rule whereby they are to be Governed Secondly The various kinds of Discents or hereditary Successions Concerning the Rule of Discents we must not govern our selves therein by the General Notions of Law or Proximity of Nature but by the Principal Laws of the Country where the Question ariseth for the various Countries have variously disposed the manner of Discents even in the same Law or Degree of Proximity For Instance The Father is certainly as near of Kin to the Son as the Son is to the Father and is nearer in Proximity than a Brother and therefore shall be preferred as next of Kin in an Administration 3 Rep. Ratcliffs Case Yet touching the Succession of the Father to the purchase of his Son the Laws of several Countries variously provide First According to the Jews for want of Issue of the Son the Father succeeds excluding the Brother and that hath been the Vse and Construction of the Jewish Doctors upon Number 27. Selden de Successionibus Hebr. Cap. 12. But the Mother was wholly excluded Secondly According to the Greeks the Provision for the Succession of the Father is left doubtful Petit Leges 1 6. fol. 6. According to the Romans or Civil Law by the Construction of the Law of the Twelve Tables the Father succeeds in the purchase of the Son for want of Issue of the Son under the Title of Proximus Agnatus and accordingly was their Vsage tho' my Lord Coke supposed the contrary Co. Lit. 5. But to settle all the Institutes of Justinian Lib. 3. Tit. 3. in an Authentick Collection 8. Tit. de Haered ' ab intestato venientibus the Son dying without Issue his Brothers and Sisters Father and Mother do succeed him in a kind of Coparcenary as well to Lands as Goods According to the Customs of Normandy which in some things have a Cognition with the Laws of England the Son dying without Issue his Brothers are preferred before the Father but the Father is preferred before the Vncles Terrien lib. 6. c. 6. la Customier de Normandie cap. Descheants 5. According to the Laws of England the Son dying without Issue or Brother or Sister the Father cannot succeed but it descends to the Vncle. And it is a Maxim of the English Law An Inheritance cannot Lineally ascend Consequently the Question being in this Case touching a Discent of Lands in England it must be Ruled and Disputed according to the Grounds and Reasons of the Laws of England Secondly Touching the Second the Division of Discents are of two kinds First Lineal as from the Father or Grandfather to the Son or Grandson Secondly Collateral or Transversal as from Brother to Brother Vncle to Nephew or è converso And both these are again of two sorts First Immediate as in Lineals from Father to Son Secondly Mediate as in Lineals from Grandfather to Grandson the Father dying in the Life of the Grandfather when the Father is the medium differens of the Discent Thirdly In Collaterals from the Vncle to the Nephew or from the Nephew to the Vncle where the Father is likewise the medium differens And I call this a Mediate Discent tho' as to many purposes it be Immediate for the Father dying in the Life of the Grandfather the Son succeeds in point of Discent of the Laws immediately to the Grandfather and in a Writ of Entry shall be supposed in the Per to the Grandfather and not in the Per and Cui But I call it a Mediate Discent because the Father is the medium through or by whom the Son derives his Title to the Grandfather Therefore if any man thinks the term of Mediate Discent not properly used he may if he please use the words of Mediate or Immediate Ancestors Words are imposed to signifie Things and therefore the Terms being explained what I mean by them I shall retain the Terms of Mediate or Immediate Discents This distinction of Discents or Relations between Ancestor and Heir and Hereditary Succession will be of use throughout this whole Debate In Immediate Discents there can be no Impediment but what arises in the parties themselves For Instance The Father seised of Lands the Impediment that hinders the Discent must be either in the Father or the Son as if the Father or the Son be Attaint or an Alien In Immediate Discents a Disability of being an Alien or Attaint in him that I call a medius Ancestor will disable a person to take by Discent tho' he himself hath no such Disability For Instance In Lineal Discents If the Father be Attaint or an Alien and hath Issue a Denizen born and dies in the life of the Grandfather the Grandfather dies seised the Son shall not take but the Land shall Escheat In Collateral Discents A. and B. Brothers A. is an Alien or Attainted and hath Issue C. a Denizen born B. purchaseth Lands and dies without Issue C. shall not inherit for A. which was the Medius Ancestor or medium differens of this Discent was incapable Dyer 274. Gray's Case And this is apparent in this very Case for by this means Patrick tho' a Denizen and the Son of an Elder Brother is disabled to inherit the Earl A. and B. Brothers A. is an Alien or person Attainted and hath Issue C. and dies and C. purchaseth Lands and dies without Issue B. his Vncle shall not inherit for the Reason before-going for A. is a Medius which was disabled This is Courtney's Case And if in our Case Patrick the Son of Nicholas altho' a Denizen born had purchased Lands and died without Issue John his Vncle should not have Inherited him by reason of the Disability of Nicholas and yet Nicholas himself had he not been an Alien could not immediately have Inherited to his Son but yet he is a Block in the way to John See the Reason 17 E. 4. cap. 1. But this must be intended of such as are absolute Impediments as Attainder or Alien not Temporary suspensions As in the Lord Delaware's Case in 10 Co. But in any Discents the Impediment of
looks upon as the Medium that derives the one Discent from the other then the Attainder of the Father would hinder the Discent between the Brothers But the Attainder of the Father doth not hinder the Discent between the Brothers Therefore the Father is not such a Medium or Nexus as is look'd upon by Law as the means deriving such Discent between the two Brothers Both the former Propositions and indeed the Illustration and Enforcement of the whole reason will be evidenced by the comparison of three Cases the two former of the Cases evincing the truth of the first Proposition and the later proving the second Proposition The First is Gravers's Case 10 Eliz. Dyer 274. The younger Brother hath Issue and is attaint of Treason and dies the elder Brother having a Title to a Petition of Right dies without Issue without a Restitution the other Brothers Son hath lost that Title for though that Title were in an Ancestor that was not attainted yet his Father that is the Medium whereby he must convey that Title was Attainted and so the Discent is obstructed On the other side the Case of Courtney in Cro. Car. 241. Henry Courtney had Issue Edward and is attaint of Treason and dies Edward purchaseth Lands and dies without Issue the Sisters and Sisters Children of Henry are disabled to inherit Edward yet neither Edward nor his Aunts were attainted nor their Blood corrupted as is before manifested but only Henry tho' the Land could not discend immediately from Edward yet because he who nevertheless was the Medium whereby the Aunts must derive their Pedigree and Consanguinity to Edward was attainted the Discent was obstructed till a restitution in Blood But suppose that the Grandfather of Edward was attainted and not Henry this could not have hindred the Discent from Edward to his Aunts because the Attainder had been paramount that Consanguinity which was between Henry and his Sisters as Brothers and Sisters and that is proved by the third Case In 40 41 Eliz. in the Exchequer Hobbies Case William Hobby had Issue Philip and Mary and is attainted of Treason and dies Philip purchaseth Lands and dies without Issue Ruled that notwithstanding the Attainder Mary shall inherit because the Discent between Philip and Mary was immediate and the Law regards not the disability of the Father and in that Case all the Reasons that have been objected against the Discent in the Case at Bar were objected If it be objected that in that Case the Mother was not attainted which might preserve the Legal Blood between Philip and Mary I Answer That that would not serve admitting the disability of the Parents were not at all considerable for if it disable the Blood of the Father which is derived to the Son it would infallibly destroy the Discent to Mary the Sister for she could not inherit her Brother in the capacity of Heir to the part of the Mother if by the Attainder she had been disabled to take as Heir by the Fathers Blood 49 E. 3. 12. If the Heir on the part of the Father be attainted the Land shall escheat and shall never discend to the Heir of the Mother because notwithstanding the Attainder the Law looks upon it as in esse but otherwise it is in case of an Alien as hath been before shewn for if the Son purchase Land and have no Kindred on the part of his Father but an Alien it shall discend to the Heir of the part of the Mother And altho' the Blood both of the Father and the Mother were in Mary yet if she were disabled in the Blood of her Father by his Attainder she could never intitle her self by the Blood of her Mother I have done with this Reason there remain two Principal Objections to be answered Object 1. The Father in the Case at Bar is the Fountain from whence the Blood of John and George is derived and their Consanguinity ariseth not from one to another but from their Father which is the common vinculum to them both and therefore this disability in the Parents destroys the Civil Relation of Hereditary Blood between the two Brothers I Answer First The very same Objection might be and indeed was made in Hobbies Case but prevailed not Secondly But further no man will say but that the Blood of the Father and Mother are necessary to derive Consanguinity in the Son for the Blood of the Father without the Mother is impossible to be derived to the Children and yet no man will deny that if the one or the other were Denizen born their Children should inherit one the other Thirdly But the truth is the Father and the Mother are the Blood Natural to both the Sons but it is the Law into which by their Birth or Naturalization they are translated that is the Fountain of the Civil or Hereditary Blood the Parents are the common Vinculum the Fonntain of their Blood that aliquod tertium in quo conveniunt in regno naturali but it is the Law of the Land into which by their birth or naturalization they are transplanted the Commune Vinculum that aliquod tertium in quo conveniunt in Regno Civili Object 2. But all their blood that they have is derived from their Parents and they can take no other blood but what they have from them and if that blood which the Parents transmit be stained and void of Hereditary Quality no hereditary blood can intervene between them I Answer It is true that their natural blood is derived from their Parents and as it is that that makes them Brothers Sons so it is that that makes them their blood but yet the civil qualification of their blood which makes them inheritable one to the other is from another Fountain viz. the Law of the Land and this Law finding them Legitimate untrinque conjunctos sanguine parentali naturali and so natural Brothers and finding them transplanted into the civil rights of this Kingdom by their birth here or Naturalization which is all one doth superinduce and close the natural Consanguinity with a civil hereditary Quality whereby they may inherit one the other For Instance A. Grandfather and B. his Wife both Aliens have Issue C. a Son born here who hath Issue D. a Son also born here No body can deny that C. hath all his natural blood from A. and B. and no where else nor is that blood that he hath so from them an inheritable blood yet is it unquestionable that D. shall inherit C. and D. hath no natural blood but what he hath from C. nor C. no natural blood but what he hath from A. and B. But true it is the Law doth superinduce that civil hereditary Quality upon the blood of C. by his birth in England tho' as he took it from his Father and Mother it was void of that Quality the Law of Nature made him indeed Son but it was the Law of England that gave him a capacity to be an
in an Inferiour Court for want of infra Jurisdictionem Curiae 2 For variance between the Count and Plaint 6 But it lies not for some Omissions 5 A Writ of Error is a Supersedeas to an Execution 30. Yet the Judgment remains a Record 34 Exception 353 355 A Writ of Error returnable ad proximum Parliamentum not good Secus if to the day of Prorogation 31 266 No Writ of Error lies upon a Conviction before a Justice of Peace 33 In a Writ of Error if the Defendant dies the Writ is not abated Secus if the Plaintiff dies 34 Lies not to reverse a Judgment in a Qui tam nor upon the Statute de Scandalis Magnatis 49 What Records to be returned upon a Writ of Error 96 97 Where it lies upon a Judgment in a Scire facias and where not 168 Error in fact not assignable in the Exchequer Chamber 207 A Writ of Error that bears Teste before the Judgment good to remove the Record if Judgment be given before the Return 255 Escape See Baron and Feme VVhere a Prisoner Escapes by permission of the Sheriff he may be taken again by the Party Plaintiff 4 Debt against the Sheriff for a Voluntary Escape the Sheriff pleads that he took him again upon fresh Suit Good 211 217 Against the VVarden of the Fleet 269 The Lessor of the Custody of a Prison answerable for an Escape where his Lessee is insufficient 314 Escrow See Pleading Evidence See Statutes The party suffering admitted to give Evidence for the King to detect a Fraud 49 Exception See Feoffment Excommunication In Excommunication ipso facto no necessity of any Sentence of Excommunication 146 Excommunication pleaded to an Action per Literas testamentarias Good 222 How discharged where the Capias is not inroled according to the Statute 338 Execution Upon an Elegit the Sheriff ought to deliver Possession by Metes and Bounds or otherwise it may be quasht 259 Executor See Abatement Costs Return Of Infant Executors where to Sue by Guardian 40 54. VVhere by Attorney 40 102 103 If a Man names himself in an Action Executor or Administrator and it appears the Cause of Action was in his own right it shall be well enough and the calling himself Executor is but surplusage 119 VVhere the Executors promise in relation to the Testators Debt shall make the Debt his own 120 268 VVhere Interest is due for a Debt partly in the Testators life time and partly since and one Action brought and Judgment given for the whole this is manifestly Erroneous 199 VVhere chargeable in the Debet detinet and where in the detinet only 271 321 355 Cannot assume the Executorship for part and refuse for part 271 Debt doth not lie against the Executor of an Executor upon a Surmise of a Devastavit of the first Executor 292 Of the Executors renouncing 303 cannot refuse after Oath 335 Of Executor de son tort 349 VVhat Acts an Executor may do before Probat 370 Exposition of Words Obstrupabat 4 Or 62 148 Pair of Curtains and Vallence 71 106 Ad sequendum 74 Vt 73 74 Aliter vel alio modo 92 Mutuasset and mutuatus esset 109 Aromatarij 142 Centena 211 Issue 229 Land 260 Crates 304 Gubernatio Regimen 324 Exilium 326 Vestura terrae 393 Extinguishment Where two Closes are in the same Possession the Duty of Fencing is Extinguished and shall not Revive thô the Closes come after into several hands 97 F. False Latine DE sex bovibus instead of bobus no sufficient Cause to Arrest Judgment 17 Feoffment A Man makes a Feoffment of a Mannor excepting two Closes for the Life of the Feoffor only The two Closes descend to the Heir 106 Fine The Delivery of a Declaration in Ejectment upon the Lands is no Entry or Claim to avoid a Fine 42. So where an Action is brought and discontinued 45 A Fine cannot bar any Interest which was divested at the time of the Fine 56 Whether a Fine and Non-Claim bars the Interest of a Lessee in Trust 80 No Bar to a Mortgage 82 A Parish may contain many Vills and if a Fine may be levied of Lands in the Parish it carries whatsoever is in any of those Vills 170 Lessee for years makes a Feoffment and levies a Fine the Lessor shall have five years to Claim after the Term expired 241 Forcible Entry In an Indictment of Forcible Entry it must appear that the place was the Freehold of the party at the time of the Entry with force because upon the finding a Restitution is to be awarded 23 Foreign Attachment See London Of Foreign Attachments by Custom how to be pleaded 236 G. Gaming See Statutes Guardian See Baron and Feme Executor Grant See Hundred GRant without Consideration hinders not the arising of a Contingent use 189 In Prescriptions or Usage time beyond Memory the Law presumes a Grant at first and the Grant lost 387. And therefore nothing can be prescribed for that cannot at this day be raised by Grant ibid. Of the Kings Grant 408 409 A Grant to a Town to be a County and no Grant of having a Sheriff void 407 H. Habeas Corpus See Statutes THo' the Return be Filed yet the Court may remand the Prisoner to the same Prison and not to the Marshalsey 330 346 Whether it lies to remove a Prisoner in Ireland 357 Half Blood The Sister of the Half Blood shall come in for distribution upon the Stat. 22 23 Car. 2. chap. 10. 316 317 323 Half Blood no Impediment to Administration 424 Harriot Where a Lease is made to commence on the Determination of another if the new Lessee dyes before his Term Commences whether a Harriot shall be due 91 Heir An implied Estate of Land shall not pass in a Will for an Heir shall not be defeated but upon a necessary Implication 323 376 A Man cannot by Conveyance at Common Law by Limitation of Uses or Devise make his right Heir a Purchaser 372 379 Yet Heirs of the Body of his second Wife having a Son by the first is a good name of Purchase 381 Hospital Mastership of a Hospital not grantable in Reversion 151 Hundred A Hundred what it is and the Bayliff of a Hundred 403 The Grant of a Hundred good notwithstanding the Statutes 2 E. 3. 12. 14 E. 3. 9. 410 412. I. Imprisonment Where an Offence is Fineable if the Fine be tenderd there ought to be no Imprisonment 116 Indictment Where a Statute makes an Offence at Common Law more penal yet the Conclusion of the Indictment is not contra formam Statuti 13 A Man cannot be Indicted for saying of a Justice of Peace he understands not the Statutes of Excise but may be bound to Good Behoviour 10 16 Indictment of Forgery upon the Stat. 5 El. 4. where good and where not 23 24 Strictness of words not required in in an Order of Sessions thô it ought in an Indictment 37 For Manslaughter not quasht upon Motion 110.
that he should suffer a Recovery his Term is not drowned 195 Tenant for Life with power to make a Jointure suffers a Recovery the Power is extinguished 226 227 Good tho' a Stranger that hath nothing in the Land be made Tenant to the Praecipe for a Recovery being a Common Assurance is to be favourably expounded 358 Whether a Recovery can be suffered where the Tail is expectant upon an Estate for Life the Tenant for Life not being made Tenant to the Praecipe 360 Release See Obligation Of all Demands its effect 314 Remainder Contingent Remainder by what Act destroyed 188 306 334 345 No Cross Remanders upon Construction in a Deed tho' sometimes in a Will 224 Rent Difference between a Rent and a Sum in Gross 99 Lease by Tenant in Fee and Rent reserved to the Lessor Executors Administrators and Assigns the words Executors and Administrators void 162 A Rent may be reserved by Contract without Deed 242 Where Rent shall be suspended and where apportioned by the Lessors Entry 276 277 Reputation Lands repurted parcel of a Mannor shall pass in a Recovery under the Word Appurtenances 52 Retorn Sheriff amerced for retorning Non est inventus on the Writ brought against his Bayliff 12 24 Sheriff retorns that Goods came to the Executors hands elongavit vendidit disposuit ad proprium usum suum convertit this tantamounts to quod devastavit 20 221 Sheriff retorns upon a Fi. fa. that he had taken Goods and that they were rescued from him not good 21 Action against Sheriff for a false Retorn of Cepi Corpus 85 Revocation What shall be a good Revocation upon a Power reserved 278 infra S. Scandal See Action upon the Case for Slander Scandalum Magnatum I do not know but my Lord of P. sent G. to take my Purse Action lies 59 Difference between an Action on the Statute of Scandalum Magnatum and a Common Action of Slander the Words in one Case shall be taken in mitiori sensu and in the other in the worst sense against the Speaker that the Honour of Great Persons may be preserved 60 Sewers Commissioners of Sewers and their Proceedings subject to the Jurisdiction of the King's Bench notwithstanding the Clause in Statute 13 Eliz. cap. 9. 67 Sheriff Sheriff may bring Trover for Goods taken in Execution and after taken away by the Defendant in the first Action 52 Soldiers Every Officer and Soldier as liable to be arrested as a Tradesman or any other person whatsoever 251 A Captain and Serjeant committed to Newgate for a great Misdemeaner in rescuing a Soldier ibid. Statutes When a Statute makes an Offence the King may punish it by Indictment but an Information will not lie when a Statute doth barely prohibit a thing 63 31 Ed. 1. Statute of Winton in an Action upon this Statute what taking shall be sufficient to discharge the Hundred 118 235 4 Ed. 3. cap. 7. Action lies for Executors upon this Statute for cutting and carrying way Corn 187. This Statute hath been always expounded largely ibid. 3 H. 7. cap. 2. A Wife forcibly married contrary to this Statute shall be admitted to give Evidence against her Husband 244 5 Eliz. cap. 4. For using a Trade not being Apprentice thereto 8 51 142 326 346 364. This Statute in relation to Apprentices expounded 174 31 Eliz. cap. 7. Of Cottages no Offence against this Statute to erect a Cottage if no body inhabits therein 107 43 Eliz. cap. 2. Poor By this Statute that enables Justices of Peace to tax a Neighbouring Parish the Justices may tax any of the Inhabitants and not the whole Parish 350 21 Jac. cap. 26. Of Felony to Personate 301 12 Car. 2. Of Ministers A good Act being made by King Lords and Commons and any defects in the Circumstances of calling them together ought not to be pried into 15 This Act extends only to Benefices with Cure ibid. 14 Car. 2. cap. 10. 16 Car. 2. cap. 3. Harth-mony Smiths Forges shall pay 191 192. So empty Houses 312 14 Car. 2. cap. 33. Of Printing Seditious Books 316. 16 Car. 2. cap. 7. Of Gaming Articles for above 100 l at a Horse Race within this Statute 253 254 17 Car. 2 cap. 2. Of Non Con-Ministers explained 328 29 Car. 2. Of Frauds and Perjuries No Promise made before the 24th of June within this Act 330. What Contracts within ths Act 361 31 Car. 2. Habeas Corpus Prayer must be made by Council wiihin the first Week after the beginning of the Term 346 T. Tail THO' a Term in gross cannot be entail'd yet where man hath a Term in point of Interest and at the same time the Trust of the Inheritance here he may entail the Trust of the Term to wait upon the Inheritance 194 What Words create an Estate Tail and what in Remainder contingent or vested 215 230 231 Estates Tail how forfeitable for Treason 299 infra A Devise to a Man and the Heirs Males of his Body with a proviso if he attempts to alien the Estate to cease the Condition void 321 322 A Limitation in Tail how it operates 378 Tender Tender and refusal is as much as payment 167 Tender where not good 252 261 Teste Where the Teste of a Writ before it was taken out is notwithstanding good 362 Tythes May be paid of a Warren by Custom 5. So of Doves and Fish ibid. Whether an Executor may bring Debt upon the Statute 2 E. 6. for Tythes due to the Testator 30 31 Where and what Modus shall bar the Recovery of Tythes in specie 32 A Prescription cannot be suggested time out of mind to pay a Modus for Tythe Hops since they were not known in England till Queen Elizabeth's time 61 Tythes of VVood tho' not Fewel payable unless exprest to be burnt in a House for the maintenance of Husbandry 75 Treason In Coyning and Clipping the Judgment 254 For raising a Rebellion in Carolina 349 Trespass See Pleading Quare Clausum fregit and threw down his Fences what Plea in Justification good 221 Continuando in Trespass where good and where not 363 Trust See Tayl. A Use in former time the same with what a Trust is now 130 Where a Trust for Life Remainder over with Power of Revocation is forfeitable and where not 128 infra Whether a Trustee is compellable to produce Writings or the Key of the Box wherein they are against the Interest of the Party for whom he is Trustee 197 Tryal See Venue What shall be Cause for new Tryal what not 30 Justices of Assize may try Informations tho' commenced before the Justices of a former Assizes 85 181 V. Venue WHere a Deed is forged at S. and given in Evidence at D. from whence the Venue ought to come in an Information thereupon 17 A Breach of Covenant assigned in Barwick the Venue shall arise from the next place in Northumberland 58 Judgment by Nihil dicit reverst after a Writ of Enquiry executed because no
Demurrer to the Replication Joynder in Demurrer 241 7. Debt upon a By-Law made by a Corporation by Prescription 243 The Declaration sets forth That the Town of G. is Antiqua Villa a Corporation time out of mind Power to implead and be impleaded A Custom to make By-Laws for good Government of the Corporation and to impose Penalties Custom to elect a Bayliff annually 243 The By Law sets forth Forfeiture for the Breach The Defendant elected Bayliff for the year then next following who refused to execute the Office per quod Actio accrevit The Defendant pleads the Act of 13 Car. 2. 244 The Act set forth 245 And alledges that he is and at the time aforesaid was a Protestant Dissenter and had not received the Sacrament according to the Rites of the Church of England with a year before his Election and that the said Election by virtue of the said Act was void The Plaintiff demurs The Defendant joyns 246 8. Debt for Rent upon two several Demises by Lease Parol 249 The first Demise Exception Habendum Reddendum Entry Rent arrear Actio accrevit 250 The second Demise Exception Habendum Reddendum Rent arrear Actio accrevit 251 The Defendant pleads That the Plaintiff Nihil habuit in tenementis tempore dimissionis it should have been temporibus demissionis ibid. The Plaintiff replies That before the several Demises one J. S. demised to him for 41 years the said J. S. having then full Power Right and Title to make such Demise by virtue of which he entred and was possest and demised to the Defendant 252 The Defendan demurs The Plaintiff joyns in demurrer 253 Distress and Avowry Vide Replevin E Error 1. ERror in the Exchequer Chamber The Style of the Court 286 The Writ of Error 287 The Return of the Writ The Memorandum and Declaration in a special Action of the Case for not grinding at an Ancient Mill. Seisin of the Mannor and Mill. The Plaintiff Farmer of the Mill habuit habere debuit the Toll 288 The Defendant Occupier of an Ancient Messuage which ought to grind at his Mill. That the Defendant erected a Hand-Mill and ground therewith ratione cujus the Plaintiff lost his Toll The Defendant imparles and pleads Not guilty 289 Postea Tales Verdict for the Plaintiff The Judgment The Placita in the Exchequer Chamber 190 The General Errors assigned A Scire facias ad audiendum Errores prayed and awarded The Defendant in the Writ of Error appears and pleads in nullo est Erratum 291 2. The Placita in the Exchequer Chamber The Writ of Error 296 The Return of the Writ The Placita 297 The Memorandum and Declaration upon an Inland Bill of Exchange The Custom set forth That any Merchant or other person vel Ordini suo super visum acceptavit sic per Indorsamentum appunctuaret pro valore recept ' c. Upon Refusal to pay the Merchant or other person to become chargable 298 Avers That the Defendant being a Merchant at N. drew a Bill upon one J. S. in London payable to one P. or Order for Value received The Bill presented to J. S. and accepted by him P. orders payment to the Plaintiff J. S. had Notice and the Money demanded of him but refused payment of which the Defendant had Notice 299 And became chargable and thereupon promised payment but tho' after requested non solvit 300 The Defendant Protestando that there is no such Custom for Plea says That one C. an Excise-man paid the Defendant the Money in question being the Kings Money to the intent that it should be paid to the King and the Defendant at C's request drew the Bill That C. was then indebted to the King prout per Record ' Scaccarij 301 That an Extent issued out thereupon ad inquirendum The Writ delivered to the Sheriffs of London An Inquisition taken by them 302 The Money and Bill of Exchange seised and returned into the Exchequer The King became Entituled An Extent issued out to the Sheriff of N. for the levying the Money and the Money paid thereupon Averment of una eadem persona 304 Et una eadem Billa Et una eadem Summa The Plaintiff demurs to the Plea especially Causes of demurrer The Defendant joyns in demurrer 304 Eleven Continuances 304 305 306 The Loquela and Proceedings revived by Act of Parliament 1 W. M. Judgment for the Plaintiff upon the demurrer A Writ of Enquiry awarded 306 The Inquisition return'd Damages found Judgment for the Plaintiff 307 Mill and Toll Vid. Error 1. Outlawry pleaded Vid. Action on the Case 8. Prerogative Process Vid. Action on the Case 3. Error 2. Trover 2. Quantum meruit Vid. Action on the Case 8. R Rent Vid. Debt 3. 8. Replevin 1. THe Plaintiff Declares for taking and detaining 8 Cows c. The Defendant acknowledges the taking as Bayliff to the Dean and Chapter of Canterbury 131 Sets forth that they are Lords of the Mannor of M. That J. S. was seized of the Locus in quo parcel of the said Mannor and held it of the Dean and Chapter by Fealty Rent and Suit of Court Sets forth a Custom for the Lord to have a year and an halfs Rent upon every Alienation and power to distrain for it Shews the Alienation and the Purchasers Entry and that there was so much due for a Fine by Custom and because the same was unpaid the Defendant distrained infra feodum c. 132 133 The Plaintiff demurs to the Conizance The Defendant joyns in demurrer 134 2. Against two Defendants One of which avows the other acknowledges the taking as Baily to the former 145 They set forth that long before the taking R.L. and L.L. were seized in Fee of the Locus in quo and by Deed granted an Annuity to the Ancestor of the Avowant and his Heirs issuing out of certain Lands of which the Locus in quo was parcel with power of Distress Conditionally to be void upon payment of 100 l on a certain day then to come which was not paid c. 146 147 And for six years Rent Arrear the Distress was made which the one Defendant bene advocat and the other bene cognoscit as in the Lands charged with the Distress The Plaintiff demurs to the Avowry and Conizance The Defendants joyn 148 3. The Plaintiff declares for taking his Colt c. 210 The Defendant avows for Damage fesant and sets forth that E. M. being seized in Fee demised the Locus in quo to the Avowant to hold at Will That he entred and was possest and took the Cold Damage fesant prays Judgment and a Return and Costs and Damages according to the Statute The Plaintiff pleads in Bar to the Avowry That E. M. demised the Locus in quo to him before the pretended Demise to the Defendant to hold for 6 years That he entred and was possest and that the Defendant took his Colt there absque hoc that E. M. demised to
her But Object All these words together to make a Slander Answ No man can assign me such a ratiocination a male divisis ad bene conjuncta I never heard it but in my Lord Straffords Case viz. that many Trespasses should make a Treason 'T is said he stirred up a Vexatious Action so does a Counsell when he Advises an Unsuccessful Action for the party is amerced pro falso clamore He will milk your Purse taken enunciatively signifies no more than Milking a Bull the Phrase is not come to an Idiom So of Filling his Pockets these Words might have been spoken of the Law and indeed they are spoken of the Thing not the Man or his Practice Dunce Corrupt c. concern the Profession but these words are applicable to any If he had said he were not a Good Fidler would that be Actionable Termino Paschae Anno 28 Car. II. In Communi Banco Hockett Uxor versus Stegold Ux ' TRespass for Assault Battery and Wounding of the Baron and Feme Vpon Not Guilty pleaded the Verdict was as to the Wife Guilty and quoad residuum Not guilty It was moved in Arrest of Judgment that the Baron and Feme could not joyn in an Action of Trespass for Beating them both 2 Cro. 355 655. 2. That there is nothing found as to the Beating of the Husband and so an imperfect Verdict for the Quoad residuum shall extend only to the other Trespasses done to the Wife Yelv. 106. Vid. Lib. which goes to both Points But the Whole Court were of Opinion that the Verdict had Cured this Mistake in the Action 9 Ed. 4. 51. 6 Acc ' Vid. Styles 349. Termino Paschae Anno 29 Car. II. In Communi Banco Herbert Perrot's Case HE having married a Wife that had an Inheritance of a considerable Value prevails upon her while she was but of the Age of 20 years to levy a Fine upon which the Use was declared to him and her and the Heirs of their two Bodies This was taken in the Country upon a Dedimus potestatem by Sir Herbert Perrot his Father and Mother After which the Wife died without Issue but had Issue at the time of the Fine It was moved in Court that this Fine might be set aside and a Fine imposed upon the Commissioners for the undue Practice and taking of a Fine of one under Age. But all the Judges agreed they could not meddle with the Fine but if the Wife had been alive and still under Age they might bring her in by Habeas Corpus and inspect her and set aside the Fine upon a Motion for perhaps the Husband would not suffer the bringing or proceeding in a Writ of Error And Justice Atkyns said These Abuses which are so frequent in taking Fines were occasioned by the Alteration of the Common Law made by the Statute of Carlisle 15 Ed. 2. that Fines which before were always to be done in Court may now be taken by Dedimus But the Common Law â—alls much short of the Order the Statute prescribes which requires that two Judges of the Court or one at the least should taking with him an Abbot Prior or Knight of good Fame take such Fines whereas 't is now the Common Practice to name Attorneys and Inconsiderable persons The Court were of Opinion That if a Commissioner to take a Fine do execute it corruptly he may be Fined by the Court for in relation to the Fine which is the proper Business of this Court he is subject to the Censures of it as Attorneys c. But they held that they had no power to Fine the Parties for a Misdemeanour in them North Chief Justice and Wyndham would have Fined Sir Herbert Perrot for taking a Fine of one under Age But Atkyns and Scroggs dissented because it did not appear that Sir Herbert Perrot did know she was under Age and it could not be discerned by the View she being Twenty Termino Sancti Hillarij Anno 29 30 Car. II. In Communi Banco Sir John Otwaie's Case IN an Ejectment upon a Special Verdict the Case was to this effect It was found that there was a Parish of Ribton and Vill of Ribton but not Coextensive with the Parish J.S. had Land in Tail in the Parish and out of the Vill and bargained and sold by Indenture with a Covenant to levy a Fine and suffer a Recovery to the Vses of the Deed of the said Land in the Parish of Ribton and the Fine and Recovery were only of Lands in Ribton and whether this would serve for the said Land in the Parish of Ribton was the Question Serjeant Maynard Argued that it would not and said that the Division by Parishes is wholly Ecclesiastical the Limits of which are equal to the Cure of the Parson But that of Towns and Vills is Civil and hath the same Limits with the Power of the Constable and Tythingman Where a Place is named in a Record of the Law and no more said 't is always intended a Vill tho' when a Vill and Parish are both mentioned and of the same Name they are intended Coextensive The later Authorities have admitted Fines to be levied of Land in a place known 1 Cro. 2 Ro. 20. But in a Recovery the Town must be mentioned But 't is Objected That here the Intention appears by the Deed that these Lands should pass But he Answered That cannot carry the Words further than they are contained in the Record Again it is Objected That the Deed Fine and Recovery do all make but one Assurance True but each hath its several effect the Deed serves to declare the Uses but it cannot make the Record larger than it is in the Subject Matter of it If a Formedon had been brought and the Fine and Recovery pleaded in Bar had it not been a good Reply to have said Nient comprise c. In 2 Cro. 120. Storke and Fox the Case was Walton and Street were two Vills in the Parish of Street and a Fine was of Lands in Street and Resolved that no Lands but in the Vill of Street tho' in the Parish did pass And so is Mo. 910. in case of a Grant 2 Ro. 54. If this were permitted it would introduce much Mischief for men would not know what passed by searching the Record but this should be known only by a Pocket Deed and so they in Reversion a Lord of Ancient Demesne c. would not know when to make their Claim and should be barred by reason of a Private Deed when the Record of the Fine or Recovery did not import that they were concerned Fines are to end Controversies and therefore must be certain and in that respect sometimes receive a stricter Construction than Grants A Fine of a Tenement is not good but ought to be reversed but a Grant of a Tenement will bind On the other side it was Argued that since Common Recoveries have been so much in practice and become the Common Assurances of mens Estates
out of Repair Secondly The whole is Sequestred whereas it ought to have been but in proportion to the Charge of Repairing and should be certainly expressed what it required Thirdly The Sequestration is to remain by the Sentence until the Judge should take further Order Whereas it ought to have been but until the Repairs had been done These Exceptions the Court held fatal and therefore gave no Opinion as to the Matter in Law but did incline that there could be no Sequestration for being made Lay Fee the Impropriation was out of their Jurisdiction and it was now only against the Person as against a Layman for not Repairing the Church And they said in case of Dilapidations the whole ought not to be Sequestred but to leave a proportion to the Parson for his Livelyhood Anonymus IN an Ejectment upon a Special Verdict the sole Point was Whether a Lease for a year upon no other Consideration than reserving a Pepper Corn if it be demanded shall work as a Bargain and Sale and so to make the Lessee capable of a Release And it was Resolved that it should and that the Reservation made a sufficient Consideration to raise an Use as by Bargain and Sale Vid. 10 Co. in Sutton's Hospitals Case Rozer versus Rozer AN Indebitatus Assumpsit pro parcell ' Corii ad specialem instantiam requisitionem of the Defendant sold and delivered to J.S. Et sic inde Indebitat ' existens the Defendant promised to pay Vpon Non assumpsit pleaded and a Verdict for the Plaintiff it was moved in Arrest of Judgment that there is no Promise laid and no Reason to presume a Promise when 't is the very ground of the Action tho' after a Verdict And admitting there were a Promise yet it being Collateral it did not make a Debt but should have been brought as an Action upon the Case Mo. 702. and Dyer 230. And hereupon Judgment was stayed Tho' as I hear in the King Bench about two years since between Danbey and Kent they held such a Case well enough after a Verdict Quaere Termino Sanctae Trinitatis Anno 33 Car. II. In Communi Banco Page versus Kirke IN an Action of Trespass upon Not Guilty at the Assizes in Suffolk a Verdict was found for the Plaintiff and 10 s Damages and 40 s Costs and Judgment entred accordingly And an Action of Debt was brought upon the Judgment and the Defendant pleaded Specially the Statute 22 23 of Car. II. ca. 9. against Recovering more Costs than Damages where the Damages are under 40 s in Trespass unless certified by the Judge that the Title was chiefly in question the Words of the Statute being If any more Costs in such Action shall be awarded the Judgment shall be void To which the Plaintiff Demurred and the Plea was held Insufficient because the Verdict was for 40 s Costs and not Costs increased by an Award of the Court. 2. If the Judgment were Erroneous yet it was hard to make it avoidable by Plea notwithstanding that the Words of the Statute are Shall be void Termino Sanctae Michaelis Anno 33 Car. II. In Communi Banco Onslowes Case HE brought an Action against a Bayliff being the chief Magistrate of a Corporation for that although he were chosen one of the Burgesses to serve in Parliament for the Corporation by the greater Number c. yet the Bayliff to disappoint him of sitting and to bring trouble c. upon him did return another Person in the Indentures together with him to his Damage c. Vpon Not Guilty pleaded and a Verdict for the Plaintiff it was moved in Arrest of Iudgment that the Action would not lie And of that Opinion were the whole Court viz. North Chief Iustice Wyndham Charlton and Levins for they said they had no Iurisdiction of this Matter the principal part thereof being a Retorn in Parliament No Action before the Statute H. 6. c. did lie against a Sheriff or chief Officer of a Corporation for a False-retorn and the Courts at Westminster must not enlarge their Iurisdiction in these matters further than those Acts give them That there were no Presidents of any Actions at the Common Law save Nevils Case in the late times and Sir Samuel Bernardistons Case both which miscarried In the Long Parliament there were a great many double Retorns but no Actions had been brought which is a great Argument that no such Action lies as Littleton argues upon the Statute of Merton of disparaging an Heir Termino Paschae Anno 35 Car. II. In Communi Banco The Lord Conwallis's Case THE Case was Isaac Pennington a Copyholder of the Mannor whereof my Lord Conwallis is now feised committed Treason in the matter of the Murder of King Charles the First and then about Anno 1655. surrendred into the hands of the Lord of the Mannor his Copyhold Lands to the use of some of his Children who were admitted In 1659. the Mannor was aliened to the Lord Conwallis then came the Act of Attainder 12 Car. 2. whereby Tychburn with other Regicides were attainted and thereby it was Enacted That all their Mannors Messuages Lands Tenements Rents Reversions Remainders Possessions Rights Conditions Interests Offices Annuities and all other Hereditaments Leases for Years Chattels Real and other things of that nature whatsoever they be shall stand forfeited to the King c. Provided that no Conveyance Assurance Grant Bargain Sale Charge Lease Assignment of Lease Grants and Surrenders by Copy of Court Roll c. made to any Person or Persons other than the Wife or Wives Child or Children Heir or Heirs of such Person or Persons c. After which Attainder c. the Lord of the Mannor caused the Lands to be seised and brought an Ejectment The First Point Was whether in Case of Treason or Felony the Lord can seise before Conviction or Attainder And the Court seemed to be of Opinion that no Seisure could be till Attainder without Special Custom but they agreed the presentment of the Homage was not necessary to precede a Seisure or to entitle the Lord to take the advantage of a Forfeiture but in case of a Capital Crime it would be unreasonable and inconvenient to permit the same to be tried or controverted in a Civil Action before the Conviction appeared upon Record Secondly Whether this were such a Forfeiture as the Lord was bound to take notice thereof for if no notice then the acceptance of the Surrender c. would not preclude him from taking advantage of the Forfeiture And the Court inclined that the Lord should be presumed to take notice in this Case as he shall in the Case of Failer of Suit of Court Non-paiment of Rent c. Vide 2 Cro. Matthews and Whetton 233. Thirdly Whether the Mannor being conveyed away before the Attainder shall purge the Forfeiture Iustice Levins said That although no advantage of this Forfeiture can be taken till Attainder yet after Attainder it has relation and
illam modo forma praed ' fact ' necesse non habet nec per legem terrae tenentur respondere Et hoc parat ' sunt verificare Unde pro defectu sufficien ' Narration ' ipsius Francisci in hac parte ijdem Edwardus Walterus pet ' Judicium qd ' praed ' Franciscus ab actione sua praedicta versus eos habend ' praecludatur c. Et praedictus Franciscus dic ' qd ' Joynder in Demurrer narratio praedicta materiaque in eadem content ' bon ' sufficien ' in lege existunt ad ipsum Franciscum actionem suam praedictam inde versus praed ' Edwardum Walterum habend ' manutenend ' Quam quidem materiam idem Franciscus parat ' est verficare Unde ex quo praedict ' Edwardus Walterus ad narrationem praed ' non responder ' nec materiam in ead ' content ' aliqualit ' dedixer ' idem Franciscus pet ' judicium dampna sua occasione fractionis conventionis praed ' sibi adjudicari c. Et quia Justic ' c. Morly versus Polhill IN an Action of Covenant the Plaintiff declared as Executor to George Morly late Bishop of Winchester and sets forth that Brian the Predecessor of the said Bishop had demised a Rectory and certain Lands to J. S. for 21 years who had assigned it to the Testator of the Defendant and that the Lessee covenanted with Brian and his Successors to repair the Chappel of the Church and the Barns c. and assigned a breach in the not xepairing by the Testator of the Defendant in the life of George Morly and that the Lease afterwarns expired To this the Defendant demurred for that it was pretended that the Executor of the Bishop could not bring this Action for the Covenant was with the Predecessor Bishop and his Successors and cited the Cases of Real Covenants 1 Inst 384 385. A Parcener after partition Covenants to acquit the other Parcener of a Suit and the Covenantee assigns the Assignee shall not bring Covenant But the whole Court gave Iudgment for the Plaintiff and that the Executor is here well entituled to the Action for the Breach in the Testators time Wright versus Wyvell IN an Ejectment the Plaintiff declared upon a Demise of Dorothy Hewly and upon a Special Verdict the Case appeared to be thus That Christopher Hewly was seised of the Premisses in Fee and made his Will in this manner I make my last Will in manner following As concerning my Personal Estate First I give and bequeath unto Ann Hewly my Wife the sum of Six Hundred Pounds to be paid unto William Weddall of Eastwick Esq and it 's for the full payment of the Lands lately purchased of the said Mr. Weddall by the said Christopher Hewly and is already estated in part of a Joynture to Ann my said Wife during her natural Life being of the value of Sixty Seven Pounds per annum That of Wiskow York and Malton the Lands and Tenements there amounting to the yearly value of Sixty Three Pounds in all One Hundred and Thirty Pounds which being also estated upon my said Wife it is in full of her Joynture And after this he gives several Legacies and the rest of his Personal Estate he gave to his Wife and made her Executrix Then they find that he had made no settlement of the Premisses or of any part of them upon his Wife and that the Lessor of the Plaintiff was Heir at Law to Christopher Hewly and that Ann the Wife is still living So that the sole Question was whether the Lands should pass to the Wife upon these words in the Will and divers Cases were put upon implicit Devises as that his Feoffees should stand seised to the use of J. S. has been held a good Devise to J. S. tho' there were no Feoffees 3 Leon. 167 162. Devise to his eldest Son after the death of his Wife there the Wife takes tho' nothing expresly devised to her After Arguments heard on both sides by the Opinion of Pollexfen Chief Justice Rokeby and Ventris Iudgment was given for the Plaintiff against the Opinion of Powell Here it appears indeed that the Testator took it that she had the Land but it appears he did not intend to devise any thing by the Will for he mentions that she was estated in it before and in the Cases of Implicit Devises there is no reference to any Act that should have conveyed the Land to the Devisee before but the Will there passes the Land by Construction and Implication Again This Devise is introduced with this Clause as to the disposing of my Personal Estate and throughout the Will he giveth only Personal Things Again This recital comes in as part of another Clause of an express Devise of the Six-Hundred Pounds But Powell relied upon the Case in Mo. 31. A man made a Will in this manner I have made a Lease to J. S. paying but 10 s Rent this was held a good Lease by the Will To which it was answered That the Case there was of little authority for it did not appear how that matter came in question or in what Court or in what Action and said only fuit tenus 3 Eliz. And Iudgment here was given for the Plaintiff Bowyer versus Milner IN a Formedon against several Tenants one appeared and was Essoigned and then another appeared and it was moved whether he could be Essoigned by reason of the Statute of W. 1. c. 43. which seems to be that Parceners or Ioyntenants should have but one Essoign and that they should not fourch Cut ' Contra. The Statute is to be understood of Essoigns after appearance and so is the Book of 28 Ed. 3. 18. it is said to have been the Law of the Times for Tenants to fourch before appearance and so is Co. 2. Inst 250. Hob. 8 46. The Case of Essoigns if the Tenant voucheth two one Essoign may be cast for each of them singly Vid. Stat. of Glouc. c. 6. Anonymus IN an Action of Trespass de Uxore abducta cum bonis viri to his damage of 10000 l Upon Not Guilty pleaded and a Trial at the Bar the Return of the Jury was Octab ' Trin. and the Appearance Day was die Mercurij at which day the Jury appeared but it being appointed for the keeping of a solemn Fast by the King's Proclamation the Jury was adjourned to the Day following and then the Jury and Parties being at the Bar a Plea was offered by the Defendants Counsel puis darrein continuance that the Plaintiff was Excommunicated and produced it under the Seal of the Court and begun their Plea thus Ad hunc diem viz. die Jovis prox ' post Octab ' Trin ' c. So that the Plea came too late for it should have been pleaded die Mercurij for tho' the Jury was adjourned to Thursday yet all Matters were entred as upon Wednesday So this Plea did appear upon the
usque diem martis prox ' post tres septiman ' Sanct ' Michael de audiend ' inde Judicio suo quod iidem Justic ' hic inde nondum c. Bockenham versus Thacker IN an Action upon the Case the Plaintiff declared that J. S. was indebted in a sum of Mony to the Plaintiff not exceeding 12 l and that the Defendant as he the Defendant said was indebted to J. S. in 12 l or there about That the Defendant in consideration that the Plaintiff at his request would procure an Order from J. S. in writing to the Defendant for payment of the Mony which the Defendant owed J. S. or any part thereof to the Plaintiff he promised to pay the Mony according to such Order The Plaintiff avers that he procured such Order from J. S for the Defendant to pay him 5 l which he shewed to the Defendant and the Defendant refused to pay c. The Defendant demurs generally to the Declaration Levinz for the Defendant argued that it was no sufficiently set forth that the Defendant was indebted to J. S. and if not there was no consideration Cur ' contra for it must be intended that he was indebted for 't is set forth that the Defendant said so but if not the procuring the Note at the Defendants request by the Plaintiff was a sufficient consideration It was Objected further that the Plaintiff had not alledged that he procured the Note at the request of the Defendant as the agreement was and for that 3 Leon. 91. was cited in consideration that he should repair such part of the House at his request it was held naught for not laying the repairing to be done at request Sed non allocatur for it shall be intended to have been done at request and so is Bretton and Boltons Case 3 Cro. 246. 2 Cro. 404. Berisfords Case and Poynters Case 1 Cro. Sed Nota All those Cases are after Verdict and so is the above cited Case See more of this Case afterwards Termino Sancti Michaelis Anno 1 W. M. In Communi Banco SErjeant Trinder moved the Court to set aside a Verdict recovered in an Action for the mesn Profits after a recovery in an Ejectment shewing that the Defendant in the Ejectment had brought another Ejectment since and recovered so that the first recovery was disaffirmed and therefore there ought to have been no recovery for the mesn Profits but the motion was denied by the whole Court Leigh versus Ward DEbt upon a Bond the Condition was to perform an Award and the Defendant pleaded that the Arbitrator made no Award The Plaintiff replied that after the Bond entred into and before the time set in the Condition for making of the Award scilicet tertio die Novembris anno c. per quoddam Scriptum suum arbitr ' adtunc ibidem fact ' c. and so sets forth the Award upon which the Defendant demurred because no place was mentioned where the Award was made Tremain for the Plaintiff said that the adtunc ibidem should refer to the place mentioned in the Declaration where the Bond was made Cur ' contra The adtunc ibidem cannot be referred to the place in the Declaration and there is no place mentioned in the Replication Whereupon Iudgment was given for the Defendant Memorandum Mr. Justice Eyres came to this Court at the desire of the Court of Kings Bench who were trying of a Cause at the Bar to know the Opinion of the Court of Common Pleas upon this Question An Infant who was a party to the Ejectment that was upon trial had answered a Bill in Chancery by his Gardian whether that Answer could be read in Evidence against the Infant And the Opinion of the whole Court was that it could not be read for it is not reason that what the Gardian swears in his Answer should affect the Infant Blake versus Clattie TRespass Quare clausum fregir diversa onera equina of Gravel had carried away per quod viam suam amifit After Verdict it was moved in Arrest of Judgment that the diversa onera equina was incertain and then mentioned the loss of his Way and had set forth no Title to the Way nor set forth any certainty of it It was said on the other side that the Incertainty was aided by the Verdict and the other Matter about the Way was only laid in aggravation of Damages But the Court held the Exceptions material and thought it would be very inconvenient to permit such a Form of putting in of a Way to a Declaration in Trespass Anonymus IN an Action of Debt for Rent the Plaintiff declared in Michaelmass Term last and laid the Demise to be Anno primo Jacobi Secundi Regis The Defendant pleaded Nil hab ' in Tenementis and the Plaintiffs Attorney delivered a Copy of the Issue where the Demise was laid Anno primo Regis nunc and so the Nisi prius Roll was at first but it was observed that the Plaintiffs Attorney had amended it but gave no Notice thereof to the Defendants Attorney nor delivered him a new Copy of the Issue and so went to Trial which proceeded the Nisi prius Roll being right and a Verdict was found for the Plaintiff And it was moved by Serjeant Rotheram that there should be a New Trial granted for the Defendant was surprized to find the Record right when they had a wrong Copy of the Issue But it appearing to the Court that the Defendant notwithstanding proceeded in his Defence and the Verdict was after a long Evidence that the Court would not set it aside but ordered the Plaintiffs Attorney to attend for the undue Practice in making of an Amendment in such manner Bailes versus Wenman IN an Ejectment upon a Special Verdict the Case appeared to be thus That Articles of Marriage were made between the eldest Son and Heir apparent of the Defendant and Martha one of the Daughters of one William Nailor whereby the Defendant was to settle the Lands in question upon the Lessor for his Life and after his decease upon Martha for her Ioynture with a Proviso that the Lessor should make a Lease of the Premisses to the Defendant for 99 years if the Defendant and Susan his Wife should so long live and that Susan died before the Lease made to the Plaintiff So the only Question was Whether the Lease for 99 years determined by the Death of said Susan The Court upon the first opening without Argument were all of Opinion that it did determine and Ordered Judgment to be Entred for the Plaintiff 5 Co. 9. in Brudnell's Case Daniel and Waddington 2 Cro. 378. Vide Dyer 67. and 1 Inst 225. a. Trupenny's Case Vide Anderson 151. A Lease made to two for their Lives absque impetitione vasti durant ' vitis of the Lessees and held that this Priviledge would hold to the Survivor for 't is reasonable to give the Priviledge as large a Construction as
hic in Cur. Literas Testamentar pÌ„fat Willielmi ê‘ quas satis liquet Cur. hic ipsos Edwardum Johannem Georgium Musgrave fore Executores Testamenti pÌ„d Et inde habere Administrationem c. Testator nihil habuit in Tenementis Et pÌ„d Georgius Peppin ê‘ Thomam Webber Attorn suum ven defend vim injur quando c. Et dic qd pÌ„d Edwardus Clarke Johannes Bowles Georgius Musgrave actionem suam pÌ„d inde versus eum habere seu manutenere non debent quia dic qd pÌ„d Will. Clarke defunct pÌ„d tempore quo supponitur pÌ„d conventionem fieri nec unquam postea nichil habuit in tenementis pÌ„d ê‘ ipsum Willielmum ê‘ script agreament pÌ„d sic ut praefertur dimitti agreatum Et hoc parat est verificare unde pet Judicium fi praed Edwardus Clarke Johannes Bowles Georgius Musgrave actionem suam praed inde versus eum habere seu manurenere debeant c. Demurrer to the Plea Et praed Edwardus Johannes Bowles Georgius Musgrave dic qd placitum praed ' Georgii Peppin superius in Barram placitat ' ac materia in eodem content ' minus sufficien ' in lege existit ad ipsos Edwardum Johannem Georgium Musgrave ab actione sua praed ' versus praefat ' Georg ' Peppin habend ' praecludend ' qd'que ipsi ad placitum ill ' modo forma praed ' placitat ' necesse non habent nec ê‘ legem terrae tenentur respondere hoc parat sunt verificare unde pet ' Judic ' dampna sua praed ' occasione fractionis conventionis praed ' sibi adjudicari c. Et praed ' Georgius Peppin ex quo ipse sufficien ' Joyder in Demurrer materiam in lege ad praefat ' Willielmum Johannem Georgium Musgrave ab actione sua praed ' versus ipsum Georgium Peppin habend ' procludend ' superius placitat ' inde allegavit quam ipse parat ' est verificare quam quidem materiam praed ' Edwardus Johannes Georgius Musgrave non dedicerunt nec ad eam aliqualit ' responder ' set verificationem ill ' admittere omnino recusant ut prius pet ' Judic ' Et qd ' praed ' Edwardus Johannes Georgius Musgrave ab actione sua praed ' habend ' praecludantur c. Et quia Justic ' hic se advisare volunt de super praemissis priusquam Judic ' inde reddant dies dat' est partibus praed ' usque a die Sancti Martini in xv dies de audiendo inde Judicio suo eo qd ' iidem Justic ' hic nondum c. Clarke versus Peppin IN an Action of Covenant the Plaintiff declared that whereas by an Agreement in writing made between him and the Defendant it was agreed between the said Parties for a Demise of a Lease of 99 years of and in a certain Messuage c. under a certain Rent and the usual Covenants as in all Demises granted by the Trustees of the Earl of Rochester were used omnium quorum consideratione the said Peppin did agree to pay to the said Clarke 180 l at Michaelmas next following and licet the Plaintiff performed all of his part the Defendant had not paid the Mony c. The Defendant pleaded in bar that the Plaintiff tempore quo supponitur praed ' conventionem nec unquam postea nihil habuit in Tenementis praed so agreed to be demised To this the Plaintiff demurred and Iudgment by the whole Court was given for the Plaintiff for tho' that may be pleaded in an Action for Debt for Rent yet it cannot be pleaded in Covenant for a summ in gross Besides the Agreement does not necessarily import that the Lease should be made by the Plaintiff it may be understood that it was agreed he should procure a Lease for the Defendant Penager versus Gale IN an Action of Trespass the Plaintiff declared for the taking of his Cattle and detaining them till he was forced to pay 2 l 8 s and 2 d The Defendant justified that J. S. levied Plaint in the County Court in a Plea of Debt of 39 s 11 d against the now Plaintiff superinde taliter processum fuit that he recovered the said Debt and 8 s and 4 d for Costs of Suit prout per processum inde in Cur ' Com' praedict ' remanen ' plenius apparet super quo ad prosecutionem ipsius J. S. quoddam praeceptum extra Cur ' Com' praedict ' emanavit per quod praeceptum the Sheriff commanded the Defendant to levy the Mony c. by virtue of which Precept he took the Cattle and detained them till the Plaintiff paid the Mony c. The Plaintiff demurred and it was adjudged for the Plaintiff First Because when a Iudgment is pleaded in an inferiour Court especially in a Court not of record the proceedings should be set forth at large and not to say taliter processum fuit Secondly It is not shewn that the Debt arose within the Iurisdiction Thirdly It doth not appear that the Court awarded the Precept 't is only said quoddam Praeceptum è Cur ' emanavit per quod the Sheriff commanded whereas the Suitors are the Iudges for it should be per quod praeceptum per praefat ' Cur ' directum fuit c. Vide Rastalls Entries in Trespass 669. and as to the setting forth the proceedings at large Prynne versus Sloughter ALIAS prout patet Termino Sancti Michaelis ult ' praeterit ' Scire faccias against Heir and Tertenants the Defendanss Tertenants appear and plead that there are Lands in another County Rotulo DCCLXXIV continetur sic London ss Praeceptum fuit Vic' Cum Robertus Prynne generosus nuper in Cur ' dominâ— Caroli Secundi nuper Regis Angl ' c. scilicet Termino Sanctae Triâ— nitatis Anno regni sui decimo nono coram Orlando Bridgman Mil ' Baronetto sociis suis tunc Justic ' dicti nuper Regis de Banco hic scilicet apud Westm ' per consideracon ' ejusdem Cur ' recuperasset versus Willielm ' Wormell nuper de London ' Armig ' alias dict Willielm ' Wormell de Spittlefield in dicto Com' Midd ' Armig ' tam quoddam debitum Ducentarum librarum quam octoginta solid ' quam eidem Roberto in eadem Cur ' dicti nuper Regis adjudicat ' fuer ' pro dampnis suis quae habuit occasione detentionis debiti illius unde convict ' est prout per recordum processum inde in Cur ' domini Regis nunc de Banco hic residen ' liquet manifeste Execut ' tamen Judic ' praedict ' adhuc restat saciend ' ac praedict ' Willielmus mortuus est prout ex insinuatione praedicti Roberti acceperat Rex Et quia c. quod per probos c. Scire fac ' tenentibus terrarum tenementorum quae fuer ' praedicti Willielmi in Octabis sanctae
loco in quo c. pro eisdem quadraginta octo libr ' de reddit ' praed ' sic aretro existen ' juste c. ut in terris distriction ' praedict ' Nich. As in Lands charged with the Distress Marsh modo defend ' in forma praedict ' onerat ' obligat ' c. Demurrer Et praedictus Philippus Lade dic ' qd ' per aliqua per praed ' Thomam Baker Nicholaum Marsh superius in advocatione praed ' alleg ' iidem Thomas Baker Nicholaus Marsh captionem averiorum praedictorum in praedicto loco in quo c. justam cognoscere non debent quia dicit qd ' placitum praed ' per eosdem Thomam Baker Nicholaum Marsh modo forma praed ' superius placitat ' materiaque in eodem content ' minus sufficien ' in lege exist ' ad captionem averiorum praedictorum in praedicto loco in quo c. justam cognoscend ' ad quod idem Philippus Lade necesse non habet nec per Legem Terrae tenetur aliquo modo respondere Et hoc parat ' est verificare Unde pro defectu sufficien ' placit ' in hac parte idem Philippus Lade pet ' judic ' dampna sua praed ' occatione captionis injuste detentionis averiorum praedictorum sibi adjudicari c. Joynder Et praedict Thomas Nicholaus ex quo ipsi sufficien ' materiam in Lege ad ipsum Nicholaum captionem averiorum praedictorum in praedicto loco in quo c. justam advocand ' Et ad ipsum Thomam ut Ballivum ipsius Nicholai eandem captionem in eodem loco justam cognoscend ' in advocare cognitione suis praedictis superius allegaver ' quam ipsi parat ' sunt verificare quam quidem materiam praedictus Philippus non dedic ' nec ad eam aliqualit ' respond ' pet ' judicium retorn ' averiorum praedictorum unacum dampnis c. sibi adjudicari c. Et quia Justic ' hic se advisare volunt de super praemissis priusquam Judicium inde reddant dies dat' est partibus praedictis hic usque à die Sancti Michaelis in tres septimanas de audiend ' inde Judicio suo eo qd ' iidem Justic ' hic inde nondum c. Lade versus Baker Marsh REplevin for taking his Cattle at Barrham in Kent in a place there called the Fourteen Acrees The Defendant Baker made Conusans and Bailiff of Nicholas Marsh and saith that diu ante praed ' tempus quo c. one Robert Lade was seised in fee of the said 14 Acres and by his Deed indented dated 1 Octob. 24 Car. 1. between him of the one part and Nicholas Marsh Grandfather of the said Nicholas Marsh of the other part and produceth the said Deed in Court in consideration of 100 l paid to him by the said Nicholas Marsh the Grandfather did grant to the said Nicholas Marsh and his Heirs an annual Rent of 8 l to be issuing out of all that Capital Messuage with the appurtenances in Barham aforesaid and out of all Lands and Hereditaments in Barham aforesaid to the said Messuage belonging and then in the occupation of the said Robert Lade unde praedict ' locus in quo est praed ' tempore quo c. fuit parcell ' to be paid at our Lady Day and Michaelmas by equal portions with power to distrain if the said Rent or any part thereof were behind And the Defendant further saith that by virtue of the said Grant the said Nicholas Marsh the Grandfather became seised in Fee of the said Rent and being so seised by his Will in Writing dated the 28th of November 1654 devised the said Rent to Richard Marsh and his Heirs and died by virtue whereof the said Richard Marsh became seised in Fee of the said Rent and being so seised diu ante praedict ' Tempus quo c. viz. 10 Aug. 32 Car. 2. nuper Regis by his Deed indented between him of the one part and the said Nicholas Marsh the Defendant Son of the said Richard of the other part cujus Scripti alteram partem Sigillo praedict ' Richard Marsh omitting sigillat ' idem Thomas Baker the Defendant hic in Cur ' profert for and in consideration of Natural Love and affection which he bore to the said Nicholas now Defendant his Son and the sum of 5 l yearly by him the said Nicholas to the said Richard Marsh during the Life of the said Richard secured to be paid and for divers other good causes and considerations concessit assignavit transposuit to the said Defendant Nich. Marsh and his Heirs the said Annuity or yearly Rent of 8 l to the use of the said Nicholas Marsh the Defendant and his Heirs prout per idem Scriptum Indentat plenius apparet Virtute cujus quidem concessionis assignationis ulterius mentionat vigore Statuti Anno Regni Hen. 8. nuper Regis Angliae vicesimo septimo de usibus in possessionem transferend praedict Nich. Defend ' fuit adhuc est seisit de praedict annual reddit c. and for 48 l for six years arrear at Michaelmas next-before the taking of the Cattle to the said Nicholas the Defendant bene cognoscit ut Ballivus ipsius Nicholai c. To this the Defendant demurs First It is not sufficiently shewn that the Place where c. was charged with the Rent for the Rent is granted out of a Messuage with the appurtenances in Barham and out of all the Lands in Barham aforesaid to the said Massuage belonging and then in the occupation of the said Robert Lade unde praedict locus in quo est tempore quo c. fuit parcell and tho' it were parcel at the time of the Distress taking it might not be belonging to the said House or in the tenure of Lade at the time of the Rent granted which should have been shewn and of that Opinion were the Court. Secondly In the Deed by which the Defendant Nicholas Marsh claims it is said sigillo praedict Rich. Marsh omitting sigillat Sed non allocatur for it is said before that per Scriptum indentat factum inter c. he granted and that is enough Thirdly Here is a grant of the Rent from Richard Marsh pleaded without any Attornment or Enrollment To which it was answered by the Counsel for the Defendant that it appeareth that the Grant was made in Consideration of Natural Affection as well as Mony and so it shall enure as a Covenant to stand seised and for this the Case of Crossing and Scudamore was cited Pas 23 Car. 2. Rot. 871. where in Ejectment it was found by Special Verdict that Nicholas Hele was seised of Lands in Fee and that he made a Deed to Jane Hele enrolled within six Months by which he did for and in consideration of Natural Love Augmentation of her Portion
and the Preferment of Her in Marriage and other good and valuable Considerations Give Grant Bargain and Sell Alien Enfeoff and Confirm unto the said Jane and her Heirs the said Lands And in the said Deed there was a Covenant that after due execution c. the said Jane should quietly enjoy and also a clause of warranty and the Iury found that there was no other Consideration than what was expressed in the Deed ut supra this Deed could not enure as a Bargain and Sale but it was adjudged that it should work as a Covenant to stand seised and Watts and Dix's Case was also cited Sty 188 204 where Rolls said if Lands are passed for Mony only the Deed ought to be enrolled but if for Mony and Natural Affection the Land will pass without Enrollment The Court here in the Principal Case inclined that this Grant would work as a Covenant to stand seised But Pollexfen Chief Justice was of Opinion that it ought to have been so pleaded and not to use the words concessit assign transposuit which is to plead it as a Grant at Common Law Powell and Ventris did conceive that it was pleaded sufficiently in regard it was said that by virtue of the Deed and Statute of Vses he became seised but leave was given by the Court to amend the Plea as the Defendant should see cause Bland versus Haselrig alios QUarto Jacobi Secundi the Case was an Assumpsit was brought against four who pleaded non Assumpsit infra sex annos and the Verdict was that one of the Defendants did assume infra sex annos and the other non assumpsit And it was moved that no Iudgment could be given against the Defendant upon whom the Verdict was found for this is an Indeb assump for Goods sold and 't is an intire contract and they must all be found to promise or else 't is against the Plaintiff Torts are in their nature several so one Defendant may be found guilty and the other not guilty but 't is not so in Actions grounded upon Contract Pollexfen Chief Justice Powel and Rokeby were of Opinion in this Case That the Plaintiff could not have Iudgment Ventris inclined to the contrary he admitted if an Indebitat ' assumpsit be brought against four and they plead non assumps and found that one of them assumed this is against the Plaintiff for he fails in his Action But in the case at Bar it may be taken that they did all promise at first and that one of them only renewed the promise within six years The plea of non assumpsit infra sex annos implies a promise at first and if one should renew his promise within six years 't is reason it should bind him and the Plaintiff must sue them all or else he will vary from the Original Contract But the Chief Justice seemed to be of an Opinion that if the promise were renewed within the six years yet if not upon a new Consideration it should not bind and if there were a new Consideration the Action will lie against him that promised alone Sed Quaere for the common Practice is upon a Plea of the Statute of Limitations to prove only a renewing the Promise without any further Consideration but a bare owning the Debt is not taken to be sufficient Quaere if the first Consideration upon repeating the Promise within six years be not enough to raise a new Cause of Action Iudgment was given for the Defendant Westby's Case WEstby brought an Action by Original and the Instructions to Cursitor for drawing of the Writ were Westby but the Writ was Westly and so all the Proceedings Afterwards the Court upon a motion ordered the Cursitor to attend who satisfied the Court that the Instructions were right and so they ordered the Original to be amended in Court and this without any application to the Chancery or Order from thence and they amended all the proceedings after Termino Paschae Anno 2 Willielmi Wariae In Communi Banco Ellis versus Yates IN an Action of Trespass the Writ was brought and so recited Quare clausum fregit herbam ibid ' crescent ' conculcavit consumpsit averia fugavit and the Declaration was Quare clausum herbam ibid ' crescent ' conculcavit consumpsit bidentes c. fugavit alia enormia c. Vpon Not guilty pleaded a Verdict was found for the Plaintiff It was moved in Arrest of Iudgment that fregit was omitted in the Declaration so one of the Trespasses contained in the Writ viz. the Clausum fregit was not mentioned in the Declaration and if the Writ contains more than is Declared for this is a Variance not aided by the Verdict 1 Cro. 329. Haselop and Chaplin where a Replevin was de averiis and declares only of an Horse and for that the Judgment was Reversed in a Writ of Error So where the Writ was Quare clausum fregit and the Declaration Quare clausum 1 Cro. 185. Edwards and Watkin Pollexfen Chief Justice and Rokeby were of that Opinion that Judgment should be arrested Ventris contra Powel being absent because the treading and consuming of the Grass necessarily implied a breach of the Close for there could not be an Entry without a Breach So the Declaration by necessary Intendment comprehended all that was in the Writ and to support the Verdict it was reasonable to intend no other breach of the Close than by a bare Entry But the other two said That there might be given in Evidence a breach of a Gate or Hedge and Damages might be given for that and then there was no ground for such Damage set forth in the Declaration And by the Opinion of the Chief Justice and Rokeby the Judgment was stayed Vid. Keilway 187. B. finding in a Verdict upon a Writ of Forcible Entry that the Defendant expulit disseisivit c. this implies it was Vi armis and yet that is the very point of the Action The Warden of the Fleet 's Case A Motion was made by the Warden of the Fleet for a Writ of Priviledge sitting the Parliament alledging that he was obliged to attend the House of Lords and therefore ought to be priviledged from Suits and divers Presidents were shewn where Writs of the like nature were granted to the Warden of the Fleet upon Motion one whereof was 2 Car. 1. and divers since that time some whereof appeared to be upon hearing of Counsel on both sides And the Court were at first inclined to grant him the like Writ but it being afterwards made appear to the Court that he was sued upon Escapes and the Court considering the great inconvenience that would ensue thereupon and being of Opinion that it was in their Discretion whether they would grant such Writ upon Motion or no. For they could not Iudicially take notice of this Priviledge of Parliament and therefore in case he had such Priviledge the Court said he might plead it
praedict ' that upon the 24th of November aforesaid a Writ of Extendi facias was awarded to the Sheriffs of London against the said Calvert for the said Debt of 5000 l commanding him to Enquire per Sacramentum proborum legalium hominum c. what Goods Chattels Debts Specialties Sums of Money c. the said Calvert then had and to extend and seise them into the Kings hands in whole hands soever they then were that the King might be thereout satisfied of the said Debt juxta formam Statuti pro hujusmodi deb ' dicti domini Regis recuperand ' Which Writ was Returnable the 26th of the said November and upon the 24th was delivered to the then Sheriffs of London who upon the 25th day of the said November by virtue of the said Writ took an Inquisition per Sacramentum c. by which it was found that the said Defendant Cramlington upon the 24th of the said November was indebted to the said Calvert in 500 l for Money received by him to the use of the said Calvert and that the Defendant made a Bill of Exchange dated the 10th of the said November directed to the said Ryder to pay to the said Price to the use of the said Calvert the Sum of 500 l and that the same was due to the said Calvert at the time of the Inquisition taken and that the said Sheriffs did thereupon seise the Debt and Bill of Exchange into the Kings hands secundum exigentiam brevis praedict ' and Returned the said Writ and Inquisition c. into the Exchequer prout per Recordum c. plenius apparet by virtue of which the King became lawfully entituled to the said 500 l and Bill of Exchange aforesaid And the Defendant further saith That afterwards scilicet the 9th of December Anno primo c. a Writ of Extendi facias was awarded out of the said Court of Exchequer against the said Defendant Cramlington for the said 500 l and thereupon be paid the said 500 l upon the 15th day of January Anno primo supradictio to the use of the King in plena exoneratione satisfactione praedict ' ult ' mentionat ' brevis de extendi fac ' praedict ' Billae excambij summae quingent ' librarum per Inquisitionem praed ' sic ut praefertur compertum c. and concludes with Averments viz. That he the Defendant Cramlington is the same so named with him in the Extent and that the 500 l the Bill of Exchange c. in the Inquisition found are the same with them mentioned in the Declaration c. and so demands Iudgment of the Action To this Plea the Plaintiffs Demurred And after divers Arguments Judgment was given in the Kings-Bench for the Plaintiffs in Easter Term in the first year of King William and Queen Mary And now it came to be Argued upon a Writ of Error in the Exchequer Chamber First It was alledged for Error that the Custom is laid so general viz. not only to extend to Merchants but all others so that it must be at the Common Law if to be allowed at all Sed non allocatur For in the Case of Sarsfield and Witherly lately Adjudged it was Resolved That a person not being a Merchant drawing a Bill of Exchange was bound according to the Vsage of it amongst Merchants and in Declarations upon Bills of Exchange the whole Matter is to be set forth specially Secondly There was as appears by the Bill of Exchange 25 Day given for the payment of it after the Date of the Bill whereas here the Request and Refusal is upon the 25th day after the Date Sed non allocatur For as the Bill is set forth it is to pay the Money ad viginti quinque dies post datum and this can't be if not paid at the Five and twentieth day Thirdly The Matter chiefly insisted upon for Error was That the 500 l was appointed to be paid to Price for the use of the Calvert so the right and interest of the Money was in Calvert by whomsoever it should be received and then it might well be seised for the Debt which Calvert did owe to the King But the Court held that the Seisure for the King ought not to have been in this case 1. For that tho' it were to be paid for Calvert's use yet this was but a Trust and the Right of the Money was in Price As if Goods be given to A. to the use of B. the property of the Goods is in A. Otherwise if Money be delivered to A. to pay to B. there the Right of the Money is in B. and he may bring an Action of Debt 2. Here the Bill is Endorsed over to be paid to the Plaintiffs before any Seisure or the Writ of Extent was issued forth and the Custom is expresly laid that an Endorsment might be as in the Case here which Custom is confessed and that determines the Right and Interest in the Money of him that makes the Endorsment and puts it in the Plaintiffs Wherefore the Judgment was affirmed Termino Sanctae Trinitatis Anno 2 W. M. In Scaccario Burchett versus Durdant IN a Writ of Error upon a Iudgment in an Ejectment in the Kings-Bench where the Plaintiff Mary Durdant declared upon the Demise of William Durdant of two Messuages 100 Acres of Land c. in Chobham in the County of Surrey Vpon Not guilty the Jury gave a Special Verdict That Henry Wicks was seised in Fee of the Premisses and by his Will in writing dated the 6th of June 1657. be Devised in the words following Viz. I give to my Cousin John Higden and his Heirs during the Life only of Robert Durdant my Kinsman all those my Messuages c. in Chobham in the County of Surrey upon this Trust and Confidence That he the said John Higden and his Heirs shall permit and suffer the said Robert Durdant during his Life to have and receive the Rents and Profits thereof which shall yearly grow due and payable he the said Robert committing no Waste And from and after the Decease of Robert Durdant then do I give the said Lands and Premisses in Chobham unto the Heirs Males of the Body of him the said Robert Durdant now living and to such other Heirs Male and Female as he shall hereafter happen to have of his Body and for want of such Heirs then to the use and behoof of my Cousin Gideon Durdant and the Heirs of his Body and for want of such Heirs the same to be and remain to the right Heirs of me the said Henry Wicks They find that Wicks died the 2d of December 14 Car. 2. seised as aforesaid and that John Higden entred and was seised prout lex postulat and by Deed bearing date the 1st of Jan. 14 Car. 2. reciting the said Will and that the said Robert Durdant and Gideon Durdant had Contracted with the said John Higden for the sale of the said
Mesuages Lands and Premisses And to the intent that the Contingent Remainder by the said Will limited to the Heirs Males and Females of the Body of the said Robert Durdant might be extinguished and destroyed he the said John Higden by the appointment of the said Robert Durdant did surrender his Estate in the Premisses to the said Gideon Durdant and by the said Deed it was Covenanted That the said Robert Durdant John Higden and Gideon Durdant should levy a Fine of the Premisses which should be to the use of the said John Higden and his Heirs They find that a Fine was levied accordingly in Easter Term 15 Car. 2. They find That Robert Durdant died on the 19th of August 20 Car. 2. and that John Higden after in 20 Car. 2. upon a valuable Consideration in money enfeoffed John Burchet of the Premisses and that the said Burchet died the 1st day of October in the same year and that the Premisses from him came to the Defendant Burchet who entred into the Premisses and became seised prout lex postulat And they find That Robert Durdant as well at the time of the said Will making as at the death of the said Henry Wicks had an only Son called George Durdant who was also Godson to the Testator and that the said George Durdant died and that William Durdant Lessor of the Plaintiff was his Son and Heir and entred and made the Demise prout c. si super totam materiam c. Vpon his Special Verdict Iudgment was given in the Kings-Bench for the Plaintiff And the Court here afterwards having heard the Case thrice Argued did affirm the Iudgment And the first Point spoken to was Whether the Estate did not execute in Robert Durdant by the Statute of 27 H. 8. of Uses For if so he would be seised of an Estate tail and then Burchet would have a good Title It is clear Lands may be Devised to the use of another as in Popham 4. 'T is true a Devise implies a Consideration and will lodge the Estate in the Devisee if no Vse be limited upon it Here it is Devised to John Higden and his Heirs upon trust and confidence that he should permit and suffer c. The word Trust is proper for the Limitation of an Use and the Estate shall Execute unless it be first limited to the use of a man and his Heirs in Trust for another there the Intention is that it should be only a Trust and here Robert Durdant is restrained only from doing waste which shews that he intended he should take an Estate or else he could not commit waste But Lands may be Devised to an Use tho' the Statute of Wills is since the Statute of Uses Mo. 107. 1 Cro. 343. The Court over-ruled this Point and Resolved it to be only a Trust in Robert Durdant for the words are That Higden should permit him to take the profits which shews that the Estate was to remain in Higden And for the restraint of waste it was proper for Higden was to permit Robert Durdant to have the possession but the Testator would not have him to commit waste or spoil The second and principal Point was Whether the Remainder to the Heirs of Robert Durdant now living did vest in George Durdant or was a Contingent Remainder It was much urged That one could not take in the Life of his Ancestor by the name of Heir for nemo est haeres viventis in the 1 Co. Archer's Case A Devise to Robert Remainder to the next heir Male of Robert and to the heirs Males of the Body of that heir Male this is Resolved to be a Contingent Remainder during the Life of Robert and it was said in that Case that the next heir Male is as much a designation of a person as an Heir now living He that will take by purchase by the name of Heir must be a compleat Heir to all intents Co. Littl. 24. b. 2 Leon 70. Chaloner and Bowyer 's Case upon a Devise But it was Resolved that this was a Remainder vested in George Durdant for the Remainder being limited to the Heirs of the Body of Robert Durdant now living and George being found to be then the only Son it was a sufficient designation of the person and as much as if it had been said to his Heir apparent and such an one is called Heir sometimes in proceedings in Law where the greatest strictness of phrase is used as in Writs of Ravishment of Ward Quare filium haeredem rapuit 2 Inst 439. Westm 2. cap. 35. 25 Ed. 3. the Statute of Treasons Treason to kill the Heir of the King The third Point was Whether George Durdant took an Estate Tail or only an Estate for Life for it was Objected that if the words Heirs of the Body were taken for the description only of the person who should take then he must take only for Life But the Court held that they would make an Estate Tail for Heirs is nomen collectivum and is sometimes so taken when 't is only Heir in the Singular Number A Devise to one for life Remainder to the heir Males of his Body for ever this is an Estate Tail in the Devisee Pawsey and Lowther in Rol. Abr. 2. Part 253. But in case the first words viz. Heirs of the Body now living would carry but an Estate for Life to George Durdant yet the subsequent words would make an Entail in him viz. and to such other Heirs Male and Female as he should hereafter happen to have of his Body this would clearly vest an Entail in George he being Heir of the Body of Robert and surviving Robert So the Judgment was affirmed Sed Nota as to the second Point the Lord Chief Baron Atkyns and Justice Powell seemed to be an Opinion that the Remainder was Contingent But in regard the Point had been upon a Writ of Error brought in the House of Lords upon a Judgment given in the Kings-Bench in another Case upon the same Will adjudged to be a Remainder vested they conceived themselves bound by that Judgment in the House of Lords Paschae Anno 2 Willielmi Mariae Memorandum BY an Order of the King and Council 1 Willielmi Mariae the Judges were Ordered to meet and all of them except Gregory Eyre and Turton were assembled at the Lord Chief Justice's Chamber to give their Opinion concerning Colonel Lundy who was appointed Governour of London Derry in Ireland by the King and Queen and had endeavoured to betray it and afterwards he escaped into Scotland where he was taken and brought Prisoner into England and Committed to the Tower Whether admitting he were guilty of a Capital Crime by Martial Law committed in Ireland he might be sent thither from hence to be Tryed there in regard of the Act of Habeas Corpus made Anno 31 Car. 2. which Enacts That no Subject of this Realm shall be sent over Prisoner to any Foreign parts But
and it s a Devise That all his Personal Estate shall be laid out c. Curia There is nothing to be laid out until the Debts and Legacies paid the 80 l is not to the Daughter but for the Mother 'T is taken for granted that where a Sum of Money is devised to a Child at such an Age it shall have the Interest in the mean time rather than the Executor shall swallow it but clear when no Maintenance is otherwise provided for The Lord Chancellor Decreed it for the Daughter and that the Executor should account for what Interest he paid the Brother Note Tho' it be said that the Money to be laid out after all Legacies paid yet all besides what serves to pay the Legacies should be laid out presently Anonymus Trin. Anno 31 Car. II. A Devise of 100 l to J.S. at the Age of 21 years and if J.S. died under Age then J.N. and A.B. to have the 100 l or else the Survivor of them A.B. and J.N. dye both in the life of J. S. and before the Age of 21 years and then J.S. dies under the Age of 21 years The Administrator of J.N. who survived A.B. sued and obtained a Decree for the 100 l for tho' he died before the Contingency hapned yet his Administrator should have it Charles Blois al' Plaintiffs versus Dame Jane Blois and Jane Blois Infants Defendants Mich. Anno 31 Car. II. THe Case was thus Sir William Blois who had Issue the Plaintiff and two Daughters by a former Venter and Jane the Defendant by a second Venter upon his second Marriage setled Lands for the Ioynture of his Wife and after her decease in case he had Issue only a Daughter to raise 3000 l for that Daughter to be paid her at the Day of Marriage so that she married after Sixteen or otherwise at the Age of Eighteen years and if she died before either then his Heir to have the benefit Afterwards Sir William Blois by his Will devises the Reversion of his setled Lands and all his other Estate to Jane his Relict one of the Defendants and three others and says That after the Son by a convenient Match shall have raised 9000 l for his three Daughters that then they should let the Son the now Plaintiff have his Estate The Question now was That if the Daughter by the second Venter had 3000 l paid her whether she should have any further benefit by the Settlement and so take a double Portion one upon the Will and another upon the Settlement The Decree made by my Lord Fynch was That if the Heir paid 9000 l the Security by the Settlement should be discharged the Will being but Cumulative Security and so the Defendant Jane was to have but one 3000 l and be subject to the same Contingencies with the Settlement and gave the Heir two years time to pay the Money and in the mean time Jane to have a third part of the Profits of the Land devised My Lord Chancellor cited one Pyne's Case where a man had secured Portions for his Children and afterwards by his Will Devised to each of them a like Sum it was held that this would not double their Portions unless plainly proved that he intended to do so Nota If one sue in Chancery an Executor of one Obligor to discover Assets you must make all the Obligors parties that the Charge may lye equal Quaere Whether you may not sue the Principal and leave out them that are bound only as Sureties But 't is clear that if a Judgment be had at Law against one Obligor you may sue the Executor of him alone to discover Assets c. because the Bond is drowned in the Judgment Turner's Case A Mortgage was made in Fee which descended to the Heir at Law and the Money ten years since paid to him The Executor of the Mortgagee preferred his Bill and had a Decree for the Money but without Interest My Lord Chancellor went upon the Reason of the Case in Littleton That if a Feoffment be made upon Condition to re-enter upon the payment of a Sum of Money and not expressed to whom to be paid there after the Death of the Feoffee it must be paid to the Executor and not to the Heir So here tho' the Proviso was to pay to the Feoffee his Heirs or Executors yet when the Day is past 't is as much as if no person had been expressed and then Equity shall follow the Law and appoint it to the Executor Termino Paschae Anno 32 Car. II. In Cancellaria Anonymus AN Impropriator devised to one that served the Cure and to all that should serve the Cure after him all the Tythes and other Profits c. Tho' the Curate was incapable to take by this Devise in such manner for want of being Incorporate and having Succession yet my Lord Chancellor Finch Decreed That the Heir of the Devisee should be seised in Trust for the Curate for the time being Broadhurst versus Richardson al' A Man had Issue three Daughters and devised to his three Daughters 540 l equally to be divided between them that is to say 180 l apiece but if any of them died without Child her part to go to the Survivors One of the Daughters married Broadhurst and before the Portion paid she died without Issue Broadhurst Exihibits his Bill against the Executor and the two surviving Sisters and had a Decree for the 180 l For a Sum of Money cannot be Entailed Anonymus IF Lands be devised for the payment of Debts and Legacies and the residue of the Personal Estate be given to the Executors after the Debts and Legacies paid the Personal Estate shall notwithstanding as far as it will go be applied to the payment of the Debts c. and the Land charged no further than is necessary to make up the residue Termino Sancti Hillarij Anno 32 33 Car. II. In Cancellaria Sayle Freeland al' Infants THe Bill was to Redeem a Mortgage made by the Father of the Defendants or to be foreclosed The Defendants by Guardian Answered setting forth That their Grandfather was seised in Fee and made a Settlement whereby he entailed the Estate but with a power of Revocation by any Writing published under his Hand and Seal in the presence of three Witnesses And the Case was That he made his Will under his Hand and Seal wherein he recited his Power and declared that he Revoked the Settlement but the Will had but two Witnesses which subscribed their Names tho' a third present and died The Lands descended to the Father who made the Mortgage and the Defendants claimed by virtue of the Entail The Decree was that the Mortgage Money should be paid First My Lord Chancellor said that here was an Execution of the Power in strictness tho' the third Witness did not Subscribe Secondly If there had not that Equity should help it in such a little Circumstance where the Owner of
Covenant there was therein to exclude from Redemption such Covenant would not be regarded in this Court and that the Person to whom the Conveyance was made might have had a Bill in the life time of him that Conveyed to have a time set for the payment of the Mony or otherwise to be foreclosed But my Lord Keeper dismissed the Bill For he said in a common Mortgage such Covenant to restrain Redemption should not be regarded but this was made with an Intention of a Settlement of his Estate besides the Consideration of the Mony paid And he denied that he could have been by the Decree of this Court limited to any time for payment of the Mony for this Court cannot shorten the time that is given by express Covenant and Agreement of the parties but when that time is past then the Practice is to foreclose Nota This Dismission was afterwards in the Parliament held 1 2 W. M. affirmed Nota If a man makes a Voluntary Conveyance and there be a defect in it so as it cannot operate at Law this Court will not Decree an Execution thereof But sometimes it has been Decreed where it is intended a provision for younger Children The Lord Salisbury's Case MY Lord Salisbury married the Daughter of one Bennet who had two Daughters and bequeathed by his Will to each of them 20000l provided that if they or either of them married before the Age of Sixteen or if that the Marriage were without the Consent of such persons that they should lose 10000 l of the Portion and that the 10000 l should go to his other Children The Case was thus The Lord Salisbury married with one of the Daughters under the Age of 16. but with the Consent of all the parties It was urged That it being with Consent it might be at any Age. But my Lord Keeper was of Opinion that both parts must be observed Anonymus IN a Covenant to stand seised to the use of A. for life and after to two equally to be divided and to their Heirs and Assigns for ever My Lord Keeper declared his Opinion that the Inheritance was in Common as well as the Estate for life He said that it had been held that where the words were to two equally divided that should be in Common otherwise if the words were equally to be divided but since taken to be all one Nay a Devise to two equally will be in Common Here there shall not be such a Construction as to make one kind of Estate for life and another of the Inheritance and Survivorship is not favoured in prejudice of an Heir Note That if a Bill be Exhibited for the Examining of Witnesses in perpetuam rei memoriam if the Plaintiff therein prays Relief the Bill shall be dismissed Termino Paschae Anno 1 Jac. II. In Cancellaria The Lord Pawlett's Case THe Lord Pawlett had made a Settlement of his Estate and had by the Deed charged his Lands with the payment of 4000 l apiece to be paid to his two Daughters at their respective Ages of 21 years or days of Marriage and reserved to himself a Power of otherwise ordering it by his Will And by his Will in Writing made at the same time or within a day after devised by these words viz. I give and bequeath to my two Daughters by name 4000 l apiece to be respectively paid unto them for their Portions in such manner as I have provided by the said Settlement and mentioned that he would be understood to mean only one 4000 l to each of his said Daughters and appointed to each of the Daughters 100 l per annum for Maintenance It hapned one of the Daughters died before Marriage or the Age of 21 years and my Lady Pawlett the Mother of the Daughters took out Letters of Administration to the Daughter that died and preferred a Bill against the Trustees for the 4000 l and the Heir to whom the benefit of the Lands after the Mony raised was appointed The Question solely was Whether this Mony should go to the Administratrix or the Land be discharged thereof and accrue to the benefit of the Heir It was agreed on all hands that if this had been a Legacy or a Sum of Mony bequeathed by the Will altho' the party had died before the Age of 21 or Marriage the Administrator should have had it and that is the Practice in the Ecclesiastical Court in case of Legacies The Legatee in such case is taken to have a present Interest tho' the time of payment be future My Lord Keeper mentioned the Reason to be because it Charges the Personal Estate which is in being at the time of the Testator's death and if the Legacy should by such an accident be discharged it would turn to the benefit of the Executors whereas the Testator did not probably so intend it And further it has been Ruled That altho' a Sum of Mony be devised out of Lands to be so paid at a future day the Death of the Legatee doth not lose it Tho' my Lord Keeper did not seem satisfied with the Reason of that Case but it having been so Decreed it was not good to vary to avoid Arbitrariness and Incertainties But here this Sum of Mony is appointed to be paid by the Deed and is a Trust charged upon Lands and Trusts are governed by the Intention of the party and that the Personal Estate is not Charged and this Sum of Mony doth not lye in demand by a Suit as where a Legacy is devised but only a Bill may be preferred to have the Trusts performed And tho' it was much insisted on for the Plaintiff that here the Will bequeaths this Mony yet that refers to the Deed and orders it to be paid in such manner as was thereby appointed And it was said to be the same with the Case of Bond and Richardson which was lately by my Lord Keeper thus Decreed being a Sum of Mony charged to be paid out of Land at such an Age. If a Settlement were made and Lands charged with such Sums of Mony as a Will should declare there the Will would be but Declarative and not Operative Termino Sancti Hillarij Anno 1 2 Jac. II. In Cancellaria Frances Whitmore Vid ' Plaintiff versus Weld al' Defendants THe Case as it was drawn up upon Reference thereof by my Lord Keeper to the Judges of the Common Pleas for their Opinion was thus Viz. On the 18th of January 1675. William Whitmore the Elder taking notice that he had setled the major part of his Lands by Deed and being possessed of a very great Personal Estate in Mortgages Jewels Plate Bonds and other Goods and Chattels amounting in the whole to a very great Sum by Will in Writing devised several Legacies and after Wills in this manner Viz. The surplusage of my Personal Estate my Debts Legacies and Funeral Charges being paid and satisfied I give unto the Right Honourable William Earl of Craven for
Hazard a general Declaration good without setting forth Cross Considerations 175 A Promise to one Part being void cannot stand good as to the other 224 Attorney An Attorney has Priviledge to lay his Action in Middlesex because of his Attendance 47 Averment Whether an Agreement may be pleaded and averr'd to shew the meaning of the Parties and that the Condition of a Bond may be taken accordingly 108 Quarter-days may be averr'd upon these General Words The usual Feasts 141 Authority See Vmpire Where an Authority is once fully Executed the Power is determined Not so where there is a compleat Execution 115 Where a man is vested with a bare Authority his denial or refusal to execute it does not conclude him but that he may execute it afterwards 116 Secus where he is vested with an Interest 117 Award See Arbitrament B Bail See Pleading THe Plaintiff may release his Action after the Sheriff hath taken a Bail-Bond 131 Attachments out of Chancery within the Statute that enables the Sheriff to take Bail-Bonds 238 How far a Bail-Bond may vary from the Writ 238 Bankrupt Trover and Conversion brought by an Assignee of Commissioners of Bankrupts against one possest of Bankrupt's Goods 63 The Commissioners cannot assign Money levied at the Bankrupt's Suit in Execution remaining in the Sheriffs hands or in Court 95 A Bankrupt's Servant shall set forth an Account of the Bankrupts Estate in his Answer to a Bill in Chancery tho' he hath been already Examined before the Commissioners 358 Baron and Feme If a Woman be Warden of the Fleet and one in Prison there marry her he is thereby out of Prison and in the Eye of the Law at large being a Husband cannot be in Custody to his Wife 19 Battery brought for both and found only as to the Wife tho' they cannot joyn for beating both yet good after Verdict 29 That Baron and Feme Executrix devastaverunt converterunt ad usum iplorum good 45 In an Action brought against the Husband for Lodging and Goods had by the Wife after Elopement what Plea shall be good what not 155 Whether the Wife may joyn with her Husband in bringing Trespass Quare Clausum fregit where the Land is the Wives 195 A Supplicavit de bono gestu granted in Chancery against the Husband for ill Usage to his Wife 345 Bond or Bill Penal See Obligation By Law A Corporation cannot make a By-Law to bind those which are not of its Body without Act of Parliament or express Prescription 33 Whether a By-Law of the University of Oxford shall oblige the Townsmen 33 34 A Corporation cannot make a By-Law to have a Forfeiture levied by sale of Goods nor for Forfeiture of Goods 183 C Canons THose of 3 Jac. 1. of force tho' never confirm'd by Act of Parliament 44 What Canons of force what not ibid. Challenge To the Array because the Sheriff in 1687. had not taken the Test the Challenge disallow'd 58 Chancery See Covenant Mortgage Trial Limitations Executor An Infants Answer in Chancery by Guardian no Evidence at Law to affect the Infant 72 There can be no Process of Contempt in Chancery against a Peer 342 Purchaser without Notice of Incumbrance favour'd in Chancery 339. 343 Words of Conveyance passing more than was intended how relievable in Chancery 345 A Trust and Equitable Interest is a Creature of the Chancery and therefore disposable by the Rules of that Court 350 Where a man leaves his Estate under several Incumbrances if the Heir buys in any of the first they shall not by the Course of this Court stand in the Way of Creditors for more than the Heir really paid for them 353 Relieves an Heir against Extortion 359 What shall be admitted to be read in Chancery what not 361 Distribution of Intestates Estate upon the Statute of 22 23 Car. 2. cap. 10. may be sued for in Chancery 362 Where a Bill is Exhibited to examine in prepetuam rei memoriam the Plaintiff must not pray Relief 366 Commitment What Commitment of Justices of the Peace for refusing to find Sureties of Good Behaviour good what not 22 23 24 Condition Condition of a Bond not to give Evidence at the Assizes against Law and the Obligee ought to be prosecuted for taking such a Bond 109 Consideration See Vse Notice Grant Enrolment Marriage Mortgage Conveyance Conveyances at the Common Law not such as work by the Statute of Vses or Surrenders of Copy-holds divest the Estate out of him that makes them immediately and put it in the Party to whom such Conveyance is made tho' in his Absence or without his Notice till he shews his disagreement 201 What Acts are requisite in Conveyances at Common Law 201 202 Atricles to Settle decreed to be executed by the Heir at Law 343 A Voluntary Conveyance defective at Common Law rarely relieved in Chancery 365 Copyhold See Action on the Case In what Cases and when the Lord shall seize the Copyhold Estate of his Tenant for Felony or Treason 38 Lands do not appear to be Copy-hold by saying they were held according to Custom unless it be said at the Will of the Lord 144 A Copyholder in Pleading need not shew admittance where the Title does not come in question as in Avowry for Rent reserved from his Under Tenant 182 Corporation See By-Law A Corporation cannot prescribe in a Que Estate â— sed quere 186 Costs See Nonsuit The Court cannot allow double Costs unless the Judge of Assizes caused the Postea to be mark'd 45 Divers Trespasses assigned the Defendant pleads Not Guilty for some and Justifies for others and the Jury find for the Plaintiff in one Issue and for the Defendant on the other no more Costs than Damages 180 195 What Costs discharged by the General Pardon and what not 210 No Costs to either Party upon a Repleader 196 Full Costs in Trespass given where the Damage was under 40 s 215 Covenant See Grant Trespass An Attorney Covenants on behalf of another Person that the Plaintiff shall quietly Enjoy an Action of Trespass is brought against the Plaintiff Whether this is a Breach of the Covenant 46 61 62 In an Action of Covenant the Defendant cannot plead that the Plaintiff tempore quo nihil habuit in tenementis tho' such Plea in an Action of Debt for Rent is good 99 Where Lessee Covenants to build three Houses upon the Premisses and keep them in Repair he builds four and lets one fall to decay Whether the Covenant extends to the fourth 128 A Covenant which does not consist with the Recital that leads and occasions it shall not oblige 140 A Suit in Chancery to stay Waste no Breach of Covenant for quiet Enjoyment tho' the Bill be dismist with Costs 213 214 A Latter Covenant by a second Indenture cannot be pleaded in Bar to the former but the Defendant must bring his Action on the last Indenture if he will help himself 218 Custom See Fine D Damages See Costs Debt
whom the King shall have it unless there be a particular person grieved 188 189 267 268 A Forfeiture shall not bind in Equity where a thing may be done afterwards or Composition made for it 352 G Gaming See Assumpsit DIce Play not unlawful in it self tho' prohibited by several Statutes to certain persons and in certain places 175 Grant A Deed having no Execution to make it work as a Grant shall operate as a Covenant to stand seized 261. and by the Statute of Vses 266 Where Land is granted by Deed-Pool in Consideration of Natural Affection without Enrolment or Attornment whether it shall operate as a Covenant to stand seized or be void 318 H Habeas Corpus NO Habeas Corpus to be moved for in the Common Pleas unless it concerns a Civil Cause yet the contrary permitted in the case of an Attorney of that Court 24 Half-Blood The Half-Blood shall have equal Share with the Whole-Blood in Distribution upon the Statute of 22 23 Car. 2. c. 10. 317 Heir See Mortgage Heirs is Nomen collectivum and is sometimes so taken when 't is only Heir in the Singular Number 313 Heir and not Executor shall have the Surplusage of Lands leased for payment of Debts 359 I Infant INfants not foreclosed in Chancery till they come of Age 351 Intent No Exception to Vnum Vasum Vini Hispanici that is not said what the Vessel was made of for it is intended to be made of Wood 67 The Name of a Grantor omitted in an Indenrure supplied by Intendment 142 Racks in a Stable shall be intended to be fixt and need not to be shewn to be so in Pleading 214 Every Agreement must have some reasonable Construction that may may be consistent with the Intent of the Parties and therefore if a man agrees with another that he shall make a Drain through his Ground he shall not make it through the parties Stables or Buildings in case there are other places proper 278 In a Special Verdict nothing shall be intended that is not found 330 Imprisonment See Pleading Impropriation Whether a Rectory Impropriate being made a Lay-Fee can be sequestred by the Court Christian for not Repairing the Chancel 35 Ireland See Naturalization Of its Conquest and the Introducing the Laws of England there 4 The Power of an Act of Parliament in Ireland 5 K King See Forfeiture ALlegiance due to the Natural and not the Politick Person of the King 3 In case of things which are Nullius in Bonis where no visible Right appears the Law gives them to the King as Derelict Lands Treasure Trove Extra-parochial Tythes c. So where the Right is equal between the King and the Subject the Kings Title hath the Preference 268 The King is the Fountain of Justice and that as well Ecclesiastical as Civil and may by the Ancient Law of the Realm visit reform and correct Abuses in the Jurisdiction Spiritual 268 In what Cases Forfeitures are vested in the King before Office found and where not 270 L Law A Thing for which there is neither Practical Custom Judicial Precedent or Act of Parliament to warrant may well be judged to be against Law 7 The clearest way how to understand any Law is to consider what was the Judgment of those People among whom and the Times in which it was practical 17 To excite the People to the disobedience of a Law of a Publick Nature is the highest Offence under High Treason 23 Lease What Lease capable of a Release to work a Bargain and Sale 35 For 99 years if two Persons shall so long live determines upon the death of either 74 Legacy See Executor Legatees are to have their Proportion where the Assets fall short 358 Legatees shall refund against Creditors and if the Ecclesiastical Court give Sentence for a Legacy a Prohibition lies unless they take Security to refund 358 360 Licence See Distress Limitation See Original Mortgage Suit to recover a Depositum in Trust for a Feme Covert not barr'd by the Statute of Limitations 345 London Of the Custom of London relating to Orphans Money 340 341 M Market WHere a Market is granted to the Damage of another the Patent may be repeal'd in a Scire facias notwithstanding a Writ of Ad quod Damnum had been executed for the Return of that Writ was not conclusive 344 Marriage Whether a Man may marry his Great Uncle's Widow 9. He may 18 20 The four Statutes relating to Marriage expounded 11 infr Tho' the Stat. 32 H. 8. c. 38. allows all persons to Marry that are without the Levitical Degrees yet persons Pre-contracted or under a perpetual Impotence are prohibited to Marry 15 To Marry his Brother's Wife prohibited by the Statute tho' not by the Levitical Law 17. So of his Wives Sister ibid. Marriages in the ascending and descending Line prohibited without limit not so between Collaterals and the Reasons 18 The Ecclesiastical Courts have Conizance to punish persons Marrying within the Levitical Degrees but not to determine what is within the Levitical Degrees and what not 22 Agreements to settle in Consideration of Marriage favoured in Chancery 353 354 357 Marriage restrictions how to be observed 365 Mine If a Man opens a Mine in his own Land he may dig and follow the Vein under another Man's Ground 342 But if the Owner did there also he may stop his further progress ibid. Mortgage Where Lands are Mortgaged thrice over the third Mortgagee may buy in the first Incumbrance to protect his own Mortgage and he hath both Law and Equity for him 338 He shall hold the Land against the second Mortgagee until be be satisfied both the Money he paid the first Mortgagee and also his own which he lent upon the last Mortgage ibid. But where only Part of the Lands are mortgaged to the first and the whole to the second and after to the third here if the third buys in the first Title it shall protect only that part that is in the first Mortgage 339 A Purchaser or Mortgagee coming in upon a Valuable Consideration without Notice and purchasing in a precedent Incumbrance it shall protect his Estate tho' he purchased in the Incumbrance after Notice of a second Mortgage ibid. Mortgages not relievable in Chancery after 20 years for the Stat. 21 Jac. 1. c. 16. limits the time of Entry to that number of years and 't is best to square the Rules of Equity as near the Rules of Reason and Law as may be 340 Upon a Mortgage in Fee the Redemption Money shall be paid to the Executor and not to the Heir 348 351 Where by a Devise of all his Lands Lands in Mortgage pass 351 Where a man 's own Covenant shall restrain him from his Equity of Redemption and where it shall not 365 Murder Husband kills a Man in the act of Adultery with his Wife Manslaughter and not Murder the Provocation being exceeding great Vide the First Part of these Reports 158 N Naturalization WHether
Tenant in Tail and levying of a Fine there is an Instantaneous Fee in him out of which the new Estate Tail is supposed to be created and that cannot hold bring derived out of a Fee subject to the Forfeiture by Relation but this Point was not touched by the Judges for that they were fully agreed upon the other Point Beasly's Case HE was taken in Execution taken a Recognizance of Bail and he made it appear to the Court that he never acknowledged the Recognizance but was personated by another and thereupon it was moved that the Bail might be vacated and he discharged as was done in Cottons Case 2 Cro. 256. But the Court said since 21 Jac. cap. 26. by which this Offence is made Felony without Clergy it is not convenient to vacate it until the Offender is convicted and so it was done 22 Car. 2. in Spicers Case Wherefore it was ordered that Beasly should bring the Money into Court an be let at large to prosecute the Offender Twisden said it must be tried in Middlesex tho' the Bayl was taken at a Judges Chamber in London because filed here and the Entry is venit coram Domingo Rege c. So it differs from a Recognizance acknowledged before my Lord Hobart upon 23 H. 8. at his Chamber and Recorded in Middlesex there Scire facias may be either in London or Middlesex Hob. rep If a false Bayl be acknowledged it is not Felony unless it be Filed and so held in Timberly's Case The King versus Humphrey's al. AN Indictment upon the Statute of Maintenance and one only found Guilty and it was moved in Arrest of Judgment that seeing but one was found Guilty it did not maintain the Indictment 2 Rolls 81. several were indicted for using of a Trade and said uterque eor ' usus fuit and held not good Sed non allocatur for that in that case in Rolls the using of the Trade by one cannot be an using by the other But this is an Offence that two may joyn in or it may be several as in a Trespass But then it was alledged that the Maintenance was in quodam placito in Cur ' coram Domino Rege pendent ' and not said where the Kings Bench Sate and this was held fatal Termino Sancti Hillarij Anno 28 29 Car. II. In Banco Regis Jay's Case A Mandamus to restore to his place of a Common Council Man in the Corporation of Eye in Suffolk The Return was that he was amoved for speaking of approbious words of one of the Aldermen viz. That he was a Knave and deserved to be posted for a Knave all over England And it was moved that the Return was insufficient for words are not good cause to remove a Man from his place in the Corporation To which it was said that this not a difranchising of him but only removing him from the Common Council as a person not fit to sit there To which Twisden said that his place there could no more be forfeited than his Freedom for he was chosen thereunto by the Custom of the place And Magna Charta is that a Man shall not be disseised de liberis consuetudinibus But he held that words might be a cause to turn out a Freeman as if they were that the Mayor or the like did burn the Charters of the Town or other words that related to the Duty of his place But in the Case at Bar the words do not appear to have any reference to the Corporation wherefore it was ordered that he should be restored The Court said that my Lord Hale held That Returns of this nature should be sworn tho' of late days it has not been used and that it was so done in Medlecot's Case in Cro. Abram versus Cunningham UPon a Special Verdict the Case appeared to be to this effect A. possessed of a Term makes B. Executor who makes three Executors and dies two of them dies and the Will of B. the Executor not being discovered Administration is granted cum Testamento annexo to D. who grants over the Term. The surviving Execcutor never intermeddles but so soon as he had Notice of the Will Refused before the Ordinary and the Point was Whether the grant of the Term in the mean time was good Saunders to maintain it Argued That to the making of an Executor besides the Will there was requisite that the Executor should assent and if the Executor refuses 't is as much as if there never had been any There is no Book which proves the Acts of an Administrator void where there is a Will and the Executor renounces Greysbrook and Foxe's Case in Plowden's Com. is that after Administration granted the Executor proved the Will And so in 7 E. 4. 14. in Dormer and Clerke's Case it was held that where there was an Executor who after refused and Administration committed the Administrator should have all the Rent belonging to the Term in Reversion which accrued after the death of the Testator If an Executor be a Debtor and refuses the Administrator may Sue him Which was denied by Twisden because a Personal Action once suspended is ever so Dyer 372. If one makes an Executor who dies and never proves the Will Administration shall be granted as upon a dying Intestate suppose an Executor de son tort had Judgment against him Shall not there be Execution upon a Term as Assets in his hands Twisden It hath been Doubted whether there could be an Executor de son tort of a Term or whether he were not a Disseisor And by the same Reason it may be granted in the present Case for at least the Administrator here is an Executor de son tort before the Refusal Levins contra Anciently Bona Intestati capi solebant in manus Regis as appears in Hensloe's Case in the 9 Co. And since the Power of the Ordinary hath been introduced it was only to grant Administration upon a dying Intestate 4 H. 7. Pl. 10. If the Ordinary cites the Executor to prove the Will and he Renounces 't is said he may grant Administration which implies that it cannot be before So 21 H. 8. cap. 5. is to grant Administration c. upon a dying Intestate or refusal of the Executor the Interest of the Executor commences before the Probat In 36 H. 6. 8. an Executor commanded one to take the Goods and after the Executor refused before the Ordinary who committed Administration and the Administrator Sued the person that took the Goods who Iustified by the Executor's Command and it was held good And a Relation shall never make an Act good which was void for defect of Power And the Court seemed strongly of that Opinion But Serjeant Pemberton desiring to Argue it the Court permitted him to speak to it the next Term. Et sic Adjornatur And afterwards it was Argued again and Judgment was given for the Defendant per totam Curiam Dunwell versus Bullocke IN an Action of