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
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
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
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
inherit If the Father a Natural Subject hath Issue a Son an Alien who is Naturalized the Father dies the Son shall inherit Co. Lit. 129. Touching the retrospect of a Naturalization and whether the Son being an Alien Naturalized after the death of the Father shall direct the Discent to the youngest depends upon the words of the Naturalization which being by Act of Parliament may by a strange retrospect direct it But as the Naturalization in the Case in question is Penned it would not do it the Naturalization hath only respect to what shall be hereafter The Clause of taking by Discent after the Commencement of the Session of Parliament is sufficient to check that Retrospect And this brings me to the Consideration of the Naturalization in the Case in question and the Effect thereof which I shall not Argue as a Point because I take the Point of the Case to be single But I shall deliver my Opinion of it by way of Conveyance to the Case Read the Naturalization First In this Naturalization I shall set down what Effect it hath And Secondly What Effect it hath not First What Effect it hath It doth doubtless remove that Inability and Incapacity that is in John the Earl and George in respect of themselves being Aliens and so put them in the Condition as if they had been Born in England But if there be a Consequential Impediment or Incapacity derived upon them by Robert their Fathers being an Alien which might hinder their Successions one to another which at the present I suppose or admit I say if there be any such Consequential Impediment this I take is not removed by this Naturalization My Reasons are briefly these First Because this Act of Naturalization hath a proper Subject upon which it may work and with which it is satisfied viz. the Personal defects of the Parties Naturalized because this Defect arising from the Incapacity of the Father is not in any measure taken notice of by the Act nor so much as mentioned that the Father was an Alien By the whole scope of the Act and every Clause of it and those Relative Terms As if Born in England is only to supply the Personal defect of the Parties Naturalized arising from their Birth out of England and therefore shall never be carried to a Collateral purpose Touching the Objection Tho' this Remedy will not Cure a Disease of another nature as Illegitimation Half-Blood c. yet it Cures all the defects of Foreign Births whether in the Parties themselves or resulting from the Ancestors And the Act might have been so Penned as it might have done it but it is not The Plaister is applied only to defects in the arising from their own Birth not defects arising from the Father or that Consequential disability arising thereby Second Objection But we find in Curteen's Case Placita Coronae 241. that where the Father was Attainted the Restitution in Blood granted by the Act to the Son cures that disability that results from the Fathers Attainder and this not only to the Son but also to the Collateral Heirs of the Father And I have before observed the Corruption of the Blood by Attainder is only of the Blood of the Father for the Son's Blood was not at all Corrupted By this Act of Restitution 1. Notice is taken of the Father's Attainder 2. It doth Intentionally provide against it and it was the only business of that Act to remove it 3. Had it not removed that Corruption of Blood it had been useless for there had been nothing else for it to provide against and so the Restitution had been idle had it not had that Effect But in our Case the Naturalization as it takes no notice of the defect in the Father nor provides against it so it hath another business to satisfie it doth remedy the Foreign Birth of the Son And let us examine the several Clauses in this Act of Naturalization we shall find the whole scope of it was no other than to put them in the same and no better Condition than as if they were Born in England This is the Governing Clause both in the first and last Sentence and hath an influence upon all the Clauses that intervene It hath been endeavoured to break the Context and to make the Clause As if Born in England to be cumulative and superabundant But this were by a Nicety to alter the scope and intent of the Act. If it were omitted yet the first Clause making him but a Natural Born Subject to all intents and purposes surely makes him no more and meddles not with the disability of his Father or the Consequence thereof There hath been some stress laid upon the Clause which enables him to make his resort and Pedigree to Ancestors Lineal or Collateral as if that should Entitle George at least to some more advantage by Naturalization than if he had been Born here But to this I say First That is a General Clause and cannot make a Legal Ancestor Secondly Vpon the same Reason it may make John or George inheritable to Patrick and not adjudge the disability of Nicholas his Father which no man pretends It makes him as much inheritable to Ancestors Lineal as well as Collateral and yet it makes no Ancestors Lineal The Words are General and create no new Ancestor that the Law doth not enable It is true that in the Argument of Godfrey and Dixon's Case especially Mountague laid some stress upon these Ancillary Clauses but the rest rather rested upon the very Matter that the party Naturalized was become thereby a Natural born Subject And thus I have done with the Naturalization which doth not Cure any disability of Transmission Hereditary between the Brothers resulting from the disability of the Father if any such be But it doth cure the Personal disability in John and George and makes them to all intents as Natural Subjects as if they had been born in England So that now the Case made is no more than this An Alien hath Issue two Sons born in England and one purchaseth Lands and dies without Issue whether the other shall inherit For as I have before observed the Case of John the Son of George is all one with the Case of George himself whom he represents as to the Point of the Discent from John the Earl Before I come to the Argument of the Question the Verdict had need be delivered from a Question which possibly would make an end of the Dispute It hath been said that if the Wife of Robert were an English Woman there would be no question but the Land might discend between the Brothers John and George tho' Robert the Father were an Alien and that it shall be so intended because nothing appears to the contrary To this I say It is true that if the Mother were an English Woman the Discent from John to George his Son would be unquestionable For notwithstanding the Incapacity of Robert the Father by being an
Heir in England or to have one My third and last Reason is indeed more general tho' not so conclusive as the two former were upon the particular Reason of the Case tho' not altogether to be neglected viz. The Law of England which is the only ground and must be the only measure of the incapacity of an Alien and of those consequential results that arise from it hath been always very gentle in the construction of the disability and rather contracting than extending it so severely For Instance The Statute de natis ultra Mare 25 E. 3. declares that the Issue born beyond Sea of an English Man upon an English Woman shall be a Denizen yet the construction hath been tho' an English Merchant marries a Foreigner and hath Issue by her beyond the Sea that Issue is a natural born Subject In 16 Cro. Car. in the Dutchy Bacons Case per omnes Justic ' Angl ' And accordingly it hath been more than once Resolved in my Remembrance Pround's Case of Rent The Case of the Postnati commonly called Calvin's Case the Report is grounded upon this gentle Interpretation of the Law tho' there were very witty Reasons urged to the contrary and surely if ever there were reason for a gentle Construction even in the Case in question it concerns us to be guided by such an Interpretation since the Vnion of the two Kingdoms by which many perthance very Considerable and Noble Families of a Scottish Extract may be concerned in the consequence of this Question both in England and Ireland that enjoy their Inheritances in peace I spare to mention particulars So far therefore as the parallel Cases of Attainder warrant this extent of this Ability I shall not dispute but further than that I dare not extend Now as touching the Authorities that favour my Opinion I shall not mention them because they have been fully Repeated and the later Authorities in this very Case are not in my Iudgment to be neglected Touching the Case of Godfrey and Dixon it is true it doth differ from the Case in question and in that the Father was made a Denizen and then had Issue a younger Son who inherited the elder Son an Alien born but Naturalized after the death of his Father yet there is to be observed in that Case either the Naturalization of the elder Son relates to his Birth or relates only to the Time of his Naturalization whether it did relate or not depends upon the words of the Act of Naturalization which I have not seen If it did relate the Cause in effect will be no more but an Alien hath Issue a Natural born Son for so he is as I have Argued by his Naturalization and then is made a Denizen and hath Issue and dies the elder Son purchaseth Lands and dies without Issue the younger Son shall inherit the elder should not have inherited his Father by reason of the Incapacity of the Father But it doth not relate further than the Time of his Naturalization which was after the time of the Death of his Father and consequently he could not divest the Heirship of his younger Brother yet if he purchaseth and dies without Issue his younger Brother shall inherit him tho' there was never Inheritable Blood between the elder Son and his Father so much as in fiction or relation Vpon the whole Case I conclude First That there be two Brochers Natural born in England the Sons of an Alien the one shall inherit the other Secondly That the Naturalization puts them in the same Condition as if born here tho' it does not more Thirdly That John the Son of George stands in the same Condition of inheriting his Vncle the Earl as George should have done had he survived the Earl Fourthly But if the Disability of Robert the Father had disabled the Brothers to have inherited one the other the Naturalization of the Earl or George had not removed that Disability Fifthly But no such Disability of the Father doth disable the Brother George to inherit the Earl it neither doth Consequentially disable John the Son of George to inherit the Earl Consequently as to the Point referred to our Iudgment John the Son of George is Inheritable to the Land of John his Vncle. The End of the First Volume A TABLE OF THE Principal Points Argued and Resolved in the First PART OF THESE REPORTS A. Abatement See Pleadings IN the Ecclesiastical Court a Suit does not abate by the Death of either Party Pag. 134 A Baronet is Sued by the Addition of Knight and Baronet the Action shall abate 154 In all Actions where one Plaintiff of several Dyes the Writ shall abate save in an Action brought by an Executor 235 Acceptance Where Acceptance of Rent from the Assignee shall discharge the Lessee 99 Action See Bail Whether an Action of Debt qui tam upon the Stat. 5 El. c. 4. lies in B. R. 8 Action brought de uxore abducta and concludes contra forman Statuti where there is no Statute in the case yet good 104 Action for a Nusance in stopping of the Lights of his House p. 139 237 248 Action upon the Stat. 13 Car. 2. by one Bookseller against another for Printing his Coppy p. 253 Where the Matter consists of two parts in several Counties the Plaintiff may bring his Action in which he pleases p. 344 Where several Causes may be joyned in one Action and where not 365 366 Action upon the Case See Jurisdiction Way In the Nature of Conspiracy a-against three for Arresting without Cause and only one found Guilty 12 Such an Action lies against one p. 19 Lies for a Justice of Peace against one who Indicts him for Matters in the Execution of his Office p. 23 25 For taking his Wife from him brought against the Womans Father p. 37 Lies not against a Justice of Peace for causing one to be Indicted who was after accquitted 47 Where it lies for Suing one in the Ecclesiastical Court and where not 86 For erecting a Market 7 miles off 98 Upon the Custom of Merchants for a Bill of Exchange accepted 152 For not Grinding at his Mill 167 Where it lies against a Master of a Ship for Goods lost out of the same 138 190 191 Against the Mayor of L. for not Granting a Poll upon a doubtful Election 206 For not repairing a Fence 264 Against a Taylor for Spoiling his Coat in making 268 For Riding over the Plaintiff with an unruly Horse 295 Where Action lies for Defaming the Wife whereby the Husband loses his Customers 348 Action upon the Case For Slander You are a Forger of Bonds a Publisher of Forgery and Sue upon forged Bonds These last Words not Actionable 3 She was with Child by J. S. whereof she miscarried 4 Thou hast received stoln Goods and knew they were stolen J. S. Stole them and thou wert Partner with her 18 Of a Midwife She is an Ignorant Woman and of small Practice and very unfortunate in her Way there
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
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
here to forbear to Sue generally but to stay a Suit against the Defendant whom he could not Sue To which it was answered That after a Verdict it shall be intended there was cause of Suit as Hob. 216. Bidwell and Cattons Case And Attorney brought an Assumpsit upon a Promise made to him in Consideration that he would stay the Prosecution of an Attachment of Priviledge and there held that it need not appear that there was cause of Suit for the Promise argues it and it will be presumed And here 't is a strong intendment that the Bond was made in Common Form which binds the Heirs But Iudgment was given against the Plaintiff for the Court said it might be intended that there was cause of Action if the contrary did not appear which it doth in this Case for the Bond cannot be intended otherwise than the Plaintiff himself hath expressed it which shews only that the Ancestor was bound And whereas it was said by the Plaintiff's Counsel that this would attaint the Jury they finding Assumpsit upon a void Promise Hale said there was no colour for that conceit The Plaintiff having proved his Promise and Consideration as 't was laid in the Declaration which is the only thing within their charge upon Non Assumpsit modo forma Bulmer versus Charles Pawlet Lord Saint John IN an Ejectment upon a Tryal at Bar this question arose upon the Evidence Tenant for Life Remainder in Tail to J. S. joyn in a Fine J.S. dies without Issue whether the Conusee should hold the Land for the Life of the Tenant for Life Serjeant Ellis pressed to have it found Specialy tho' it is resolved in Bredons Case that the Estate of the Conusee shall have Continuance but he said it was a strange Estate that should be both a Determinable Fee and an Estate pur auter vie and he cited 3 Cro. 285. Major and Talbots Case where in Covenant the Plaintiff sets forth that a Feme Tenant for Life Remainder in Fee to her Husband made a Lease to the Defendant for years wherein the Defendant covenanted with the Lessors their Heirs and Assigns to repair and they conveyed the Reversion to the Plaintiff and for default of Reparations the Plaintiff brought his Action as Assignee to the Husband And resolved to be well brought because the Wives Estate passed as drowned in the Fee The Court said Bredons Case was full in the point but the Reason there given Hale said made against the Resolution for 't is said that the Remainder in Tail passes first which if it does the Freehold must go by way of Surrender and so down but they shall rather be construed to pass insimul uno flatu Hob. 277 In Englishes Case it was resolved it Tenant for Life Remainder in Tail to an Infant joyn in a Fine if the Infant after Reverse the Fine yet the Conusee shall hold it for the Life of the Conusor 1 Co. in Bredons Case and he resembled it to the Case in 1 Inst a Man seized in the right of his Wife and entituled to be Tenant by the curtesie joyns in a Feoffment with his Wife the Heir of his Wife shall not avoid this during the Husbands Life Nevertheless he told Ellis That he would never deny a Special Verdict at the request of a Learned Man but it appearing that he Plaintiff had a good Title after the Life should fall the Defendant bought it of him and the Jury were discharged Sacheverel versus Frogate PAs 23 Car. 2. Rot. 590. In Covenant the Plaintiff declared That Jacinth Sacheverel seized in Fee demised to the Defendant certain Land for years reserving 120 l Rent And therein was a Covenant that the Defendant should yearly and every year during the said Term pay unto the Lessor his Executors Administrators and Assigns the said Rent and sets forth how that the Lessor devised the Reversion to the Plaintiff an for 120 l Rent since his decease he brought the Action The Defendant demanded Oyer of the Indenture wherein the Reservation of the Rent was yearly during the Term to the Lessor his Executors Administrators and Assigns and after a Covenant prout the Plaintiff declared and to this the Defendant demurred It was twice argued at the Bar and was now set down for the Resolution of the Court which Hale delivered with the Reasons He said they were all of Opinion for the Plaintiff For what interest a Man hath he hath it in a double capacity either as a Chattel and so transmissible to the Executors and Administrators or as an Inheritance and so in capacity of transmitting it to his Heir Then if Tenant in Fee makes a Lease and reserves the Rent to him and his Executors the Rent cannot go to them for there is no Testamentary Estate On the other side if Lessee for a 100 years should make a Lease for 40 years reserving Rent to him and his Heirs that would be void to the Heir Now a Reservation is but a Return of somewhat back in Retribution of what passes and therefore must be carried over to the Party which should have succeeded in the Estate if no Lease had béen made and that has béen always held where the Reservation is general So tho' it doth not properly create a Fee yet 't is a descendible Estate because it comes in lieu of what would have descended therefore Constructions of Reservations have been ever according to the Reason and Equity of the thing If two Joynt-teants make a Lease and reserve the Rent to one of them this is a good to both unless the Lease be by Indenture because of the Estoppel which is not in our Case for the Executors are Strangers to the Deed. 'T is true if A. and B. joyn in a Lease of Land wherein A. hath nothing reserving the Rent to A. by Indenture this is good by Estoppel to A. But in the Earl of Clare's Case it was resolved That where he and his Wife made a Lease reserving a Rent to himself and his Wife and his Heirs that he might bring Debt for the Rent and declare as of a Lease made by himself alone and the Reservation to himself for being in the Case of a Feme Covert there could be no Estoppel altho' she signed and sealed the Lease There was an Indenture of Demise from two Joynt tenants reserving 20 l Rent to them both one only sealed and delivered the Deed and he brought Debt for the Rent and declared of a Demise of the Moiety and a Reservation of 10 l Rent to him And resolved that he might Between Bond and Cartwright which see before and in the Common Pleas Pas 40. Eliz. Tenant in Tail made a Lease reserving a Rent to him and his Heirs It was resolved a good Lease to bind the Entail for the Rent shall go to the Heir in Tail along with the Reversion tho' the Reservation were to the Heirs generally For the Law uses all industry imaginable to conform
appearing that B. had made this Discovery to him of which he was now about to give Evidencee before such time as he had Retained him the Court were of Opinion that he might be Sworn Otherwise if he had been retained his Solicitor before The same Law of an Attorney or Counsel Sir Samuel Jones versus the Countess of Manchester IN an Ejectment upon a Trial at the Bar the Evidences which as the Plaintiff pretended would have made out his Title and would have avoided the Settlement in Joynture which the Countess of Manchester claimed were locked up in a Box which was in the Custody of a Stranger who before the Trial delivered the Key to the Earl of Bedford Brother to the Countess of Manchester and Trustee for her who being present in Court and requested to deliver the Key that the Box might be opened which was brought into Court He said being a Trustee in the behalf of his Sister He conceived he was not obliged to shew forth any Writings that might impeach her Estate and if he should it would be a breach of the Trust reposed in him which he held sacred and inviolable The Court told him That they could not compel him to deliver the Key But Hales said It were more advisable for him to do it For he held tho' it is against the Duty of a Counsellor or Solicitor c. to discover the Evidence which he which retains him acquaints him with yet a Trustee may and ought to produce Writings c. But they could not Rule him to do it here and the Earl declaring his Resolution not to do it the Plaintiffs Counsel desired leave of the Court to break open the Box. The Court said that they would make no Order in it nor would determine how far the Title to the Writings drew in the property of the Box or whether the delivering the Key to the E. did not amount to a Pledge of the Box. Serjeant Maynard said It was the course of the Chancery when a Bill was Exhibited against a Joyntress to discover Writings not to compel her to do it till such time as the Plaintiff agrees to confirm her Joynture And he knew a Bill of Discovery brought against a Purchasor upon a valuable Consideration and the Court would not compel him to Answer tho' it was proved there was a Deed and a real Settlement Vpon opening the Evidence in the Case at Bar these Points were stirred and Resolved by the Court That where a man makes a Feoffment c. to Uses with power of Revocation when he hath executed that Power he cannot limit New Uses but if it had been with a Power to revoke and limit New then he might revoke and limit New with a power of Revocation annexed to those New which if he doth afterwards revoke he may again limit New Uses according to the first Power and so in infinitum But always the New Uses must correspond to those Circumstances c. which the first Power appoints for that is the Foundation 2 Rolls 262. Beckett's Case The Plaintiff being at a loss for his Writings was Nonsuit Seaman versus Dee AN Indebitat ' Assumpsit as Executor of S. was brought against the Defendant by the Plaintiff as an Attorney of this Court by Original The Defendant pleads four Judgments against him One in an Action of Debt upon which the Question was for Money borrowed by the Testator upon Interest which Debt with the Interest at the time of the Action brought amounted to such a Sum which was recovered against him And pleads three Judgments besides ultra quae he had not to satisfie The Plaintiff Demurs and after being divers times spoken to the Court Resolved for the Plaintiff First For that Hale said No Action of Debt lies for the Interest of Money tho' he which borrows it Promises to pay after the rate of 6 l per Cent. for it but it is to be recovered by Assumpsit in Damages So where by Deed the party Covenants or Binds himself to pay the Principal with Interest the Interest is not to be included with the Principal in an Action of Debt but shall be turned into Damages which the Jury is to measure to what the Interest amounts to which is allowed to be done tho' indeed the Statutes which permit the taking of Interest say That Usury is damned and forbidden by the Law of God And tho' it was Objected That the Judgment is but Erroneous and the Executor liable while Reversed and it cannot be said it was the Executor's fault to suffer it For an Executor may plead a Judgment against him in Debt upon a simple Contract tho' it could not have been recovered if he had pleaded to the Action or without his voluntary Consent To that Hale said That Debt upon a Simple Contract lies against an Executor if he please nay it hath been Adjudged that an Executor may retain for a Debt but to him from the Testator upon a Simple Contract But in this Case no Action lies by the Law nor any admission of the Executor can make it good Secondly It appears that part of the Interest accrued after the Testator's death which is the Executors proper Debt being his own default to suffer the Interest to run on Then the Action being brought both for that which is due in the Testator's time and for that which grew due since is manifestly Erroneous and there is nothing in the Defendants Plea to take away the Intendment that he had Assets to satisfie at the Testator's death To the Objection That the Plaintiff once had abated his Writ for that he declares by Priviledge as an Attorney of the Court. It was Answered That the alledging of his Profession and Priviledge in the Declaration was Surplusage and an impertinent Flourish and that being rejected the Declaration is sufficient upon the Writ and an Attorney is at election to Sue either by Original or by Priviledge Wherefore the Rule was that the Plaintiff should have his Judgment The Lady Anne Fry's Case IN an Ejectment by Williams Lessee of George Porter Esquire against the Lady Anne Fry The Case appeared to be this upon a Special Verdict That Mountjoy Earl of Newport was seised of an House called Newport-House in the County of Middlesex and had three Sons who are yet living and had two Daughters Isabel married to the Earl of Banbury by whom she had Issue Anne the Defendant and Anne married to Porter by whom she had Issue George Porter Lessor of the Plaintiff and made his Will in this manner I give and bequeath to my Dear Wife the Lady Anne Countess of Newport all that my House called Newport House and all other my Lands c. in the County of Middlesex for her Life and after her Death I give and bequeath the Premisses to my Grandchild Anne Knolles viz. the Defendant and the Heirs of her Body Provided always and upon Condition that she Marries with the Consent of my said Wife and
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
Vpon which it was Demurred Jones Sollicitor for the Defendant said Tho' the Bail may plead payment because the Condition of the Recognizance is in the Disjunctive viz. for rendring the Body or paying the Money yet the Principal cannot Also it ought to have been pleaded to be paid before a Capias ad satisfaciendum taken out for as it is it may be after the Recognizance forfeited As if the Death of the Principal be pleaded it must be alledged to be before the Capias ad satisfaciendum taken out But the Court held it to be well enough For if that matter be material 't is to come on the other side and ex gratia Curiae the Bail has time to save himself before the Return of the second Scire facias Anonymus IN an Assumpsit the Plaintiff Declared that on the 28th of June Discoursing with the Defendant about the Marriage of his Daughter the Defendant promised him That if he would hasten the Marriage and should have a Son within Twelve Months then next following he would give him an Hundred Pound And sets forth That he did Marry soon after and had a Son within 12 Months after the Marriage Vpon non Assumpsit pleaded and a Verdict for the Plaintiff it was moved in Arrest of Judgment that the Plaintiff had not set forth That he had a Son within the time for then next following shall be referred to the Day of the Discourse and not to the Marriage But the Court were of another Opinion and gave Judgment for the Plaintiff Crawfoot versus Dale IN an Action for Words it was thus There being a Discourse of the Plaintiffs Trade the Defendant said He was a cheating Knave and kept a false Debt-Book with which he cheated the Country After Verdict for the Plaintiff it was moved in Arrest of Judgment that to say a Tradesman was a Cheating Knave tho' there were a Colloquium of his Trade was not Actionable for that might be said because he sold too Dear and so cheated in the Price but to say that He sold bad Commodities is Actionable and to say He kept a False Book will not bear an Action for that may be unwittingly But the Court Resolved that the Words laid together were Actionable for Tradesmens Books are of much regard and sometimes given in Evidence Jennings versus Hunking IN an Action for saying He was Perjured the Declaration was laid in Devonshire The Defendant Iustified for that the Plaintiff made a false Affidavit at Launceston in Cornwal and Issue was taken upon that and tryed at the Assizes in Devonshire and moved that this was a Mis trial But it was Answered That the Statute of 17 Car. 2. cap. 8. helps all Mis-trials so as the Trial be in the County where the Action is brought And a Case was cited in this Court between Crosse and Winton in the 21 Car. 2. where an Action was brought for saying He stole Plate from Wadham Colledge in Oxford The Defendant Iustified that he did Steal there Vpon which there was Issue joyned and tryed in London where the Action was brought and it was held good And this Term a Case was moved in the Common Bench in a Writ of Covenant against Wise The Defendant pleaded a Feoffment of Lands in Oxfordshire and he Issue was non feoffavit and afterwards tryed in London where the Action was laid and the Opinion of the Court there was that the late Statute would help it The Court said It was within the words of the Act but as they conceived not within the meaning for they intended only so the Trial was in the County where the Issue did arise But in regard of the Resolutions before they would not stay Judgment Anonymus IN an Action upon the Case the Plaintiff sets forth that the Defendant malitiose crimen Feloniae ei imposuit and not mentioned any Felony in particular and yet held to be well enough Anonymus Trespass with a Continuando which was alledged for some time after the Term wherein the Action was brought and Damages given to 10 l It was moved in Arrest of Judgment that for part of thâ— Trespass it appears by the Plaintiffs own shewing that the Action was brought before the Plaintiff had Cause of Action And it was said That if the Bill were Filed at the End of the Term and the Trespass reached to some time within the Term the Filing should not relate so as to make it Insufficient But here it was carried to the 3d of July which the Court must see is out of the Term because they take Cognizance of the beginning and end of every Term. Anonymus IF an Audita Querela he brought before the Execution of a Judgment quia timet and it goes for the Defendant he shall execute his Principal Judgment But if it he brought after the party is in Execution and he be bailed out then the Judgment being once Executed there can be no after resort to that but the Defendant shall proceed upon the Record of the Audita Querela Fawkener versus Annis THe Priviledge of the Chancery was pleaded by way of Prescription and upon Demurrer it was held naught First Because it was not Concluded hoc paratus est verificare And Secondly No place alledged for they are Matters of Fact and Triable Anonymus IN an Action upon the Case the Plaintiff Declared That the Defendant the Tenants and Occupiers of such a parcel of Land adjoyning to the Plaintiffs have time out of Mind maintained such a Fence and that from the 23th of April to the 25th of May postea the Fence lay open and that una Equa of the Plaintiffs went through the Gap and fell into a Ditch the 28th of May submersa fuit Vpon Not Guilty pleaded and found for the Plaintiff Holt moved in Arrest of Judgment First That the Prescription is laid in Occupiers and not shewn their Estate and that hath been adjudged naught in the 1 Cro. 445. and the 2 Cro. 665. Curia 'T is true there have been Opinions both ways but 't is good thus laid for the Plaintiff is a Stranger and presumed ignorant of the Estate But otherwise it is if the Defendant had prescribed Secondly It was Objected That the Cause of Action is laid after the 25th of May and for ought appears the Fence might be good at that time tho' 't is said to be open till the 25th of May postea Sed non allocatur For 1. 'T is after a Verdict 2. 'T is said expresly that the Beast was lost in defectu fensuratum and so cannot be intended but that it was down at the time Anonymus AN Indictment of Forcible Entry upon the 8 H. 6 being removed hither by Certiorari a Restitution was prayed But to stop that it was said that the Indictment was traversed and a Plea that the party had had three years quiet possession according to the 31st of Eliz. and tho' Dyer 122 is That 't is in the
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
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
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
feeds to their damage it will be a Surcharge and an Action upon the Case will lie against him The Lord cannot improve but he must leave them sufficent and there can be no reason why the Owner should not have the Surplusage if any be I know they will cite an Authority against me in the Case between Webb and Littleburgh which was in C. B. 1654. There I confess the Declaration was grounded upon a Prescription much like to this and the Plaintiff had a Verdict and the Court would not arrest Iudgment upon it The Answer that I must give to that Case is grounded upon the difference between a Demurrer and a Verdict The Court may intend that after a Verdict which may help it for I allow an exclusion of the Lord upon a Special Case disclosed in pleading and that Special Matter may be supplied by the Verdict Besides I must observe that it was a Case of small consequence that concerned the Lord only for his Costs for he hath enjoyed his feeding against that Verdict ever since I can say it upon my own knowledge for I know the Parties and know the Place it was at Elinswell near Bury St. Edmonds in Suffolk The Iudges listen to Exceptions after a Verdict but will give Judgment if there be any possibility to maintain it I may add that this was a Popular Times when all things tended to the licentiousness of the Common People I shall Conclude praying Judgment against this Prescription for these Reasons It is a new and unheard of way of Pleading and against the Rule of Law joyning Freehold Tenants in the generalty which have no relation one to another and annexing an entire Interest to several Estates and mixing Prescription and Custom which are of contrary Natures and are great Absurdities It is against Reason to oust the Owner of all the feeding which for ought appears is all the Profits without any Special Matter or Recompence appearing in Pleading There is great inconvenience in admitting of such a Prescription new Inventions bringing unknown Consequences No inconvenience in ousting Tenants of this Prescription seeing that they claim the same Usage the ordinary way and the Lord can do them no wrong either by feeding or improvement In this Case the Court of Common-Pleas had been divided in Opinion upon the Matter in Law as appears by Vaughans Reports and therefore Sir Henry North thought not fit to wave the Matter of Law in the Kings-Bench altho' he had so good a Case upon the Fact that if it had been no prejudice he would joyn Issue and try the truth of this Prescription at the Bar whereupon the Demurrer was by consent waved and the Cause tried at the Bar and the Verdict passed for Sir Henry North with the approbation of the whole Court Afterwards another Action was brought to trial in the Exchequer at the Bar and it appearing to the Court that there had been Proposals towards an Agreement a Juror was withdrawn and my Lord Chief Baron Hale gave the Tenants advice to comply with this saying Redime te captum quam queas minimo So that the Matter of Law was never adjudged against Sir Henry North but the Matter of Fact tried for him and the main Question upon the Act of Level never came in Question which may extend to this great Waste altho' both the other Points were against Sir Henry North. Afterwards there was another Action brought to trial in the Exchequer and after a full evidence of about 4 or 5 hours the Plaintiff not daring to stand the Verdict was nonsuited THE CASE OF Sir Robert Atkyns AGAINST HOLFORD CLARE Under-sheriff of the County of Gloucester TERMINO Sancti Hillarij Anno 22 23 Car. II. In Scaccario AN Action upon the Case was brought by the Plaintiff Vid. Co. Entr. 439. a Quo Warranto brought for these Hundreds setting forth That he was seised of the Seven Hundreds of Crochon Bright Reppesgate Bradley c. in the County of Gloucester and had Return and Execution of Writs there That the Defendant knowing of it did Execute several Writs there to the Plaintiffs damage c. Vpon Not Guilty pleaded Issue is taken and this Special Verdict is found viz. They find the Patent of 11 May 5 Johannis whereby the King restores to the Abbot and Convent of Canons Regular in Cirencester certain Lands granted to them by his Brother Richard the First and also grants That no Sheriff of Gloucester or his Bayliff do intromit in aliquo within the Seven Hundreds except for Pleas of the Crown and Summons which the Abbot c. should receive from the hands of the Sheriffs and execute They find the Patent of 20 Decembris 17 E. 3. wherein the King reciting that Richard the First by Patent granted to this Abbot and Convent the Mannor of Cirencester and the Seven Hundreds and the Return of Writs in them that thereby they had used and enjoyed Retorna Brevium tanquam pertinentia ad Septem Hundred ' praedict ' Reciting also that by a Presentment made it was seised into the Chancery and that He Edward the Third for a Fine of 300 l grants that they should hold the Mannor Hundreds Vills c. quod haberent in Villis Hundredis praedictis c. absque impedimento retorna Brevium Infangthief c. tanquam pertinent ' Hundredis praedictis c. of the King and his Successors c. and confirms the Patent of King John They find that the Abbot c. were seised prout Lex postulat till 4 Febr. 27 H. 8. when the Monastery was dissolved and all came to the Crown They find the Statute for vesting of these Lands c. belonging to the Monastery in the King and the Statute of 32 H. 8. cap. 20. whereby it is Enacted That all Liberties c. which the late Owners of Monasteries had used c. shall be revived and be really and actually in the King his Heirs c. and shall be in the Rule Order Survey and Governance of the Court of Augmentations and that the same Liberties c. shall be used and exercised by such Stewards Bayliffs c. as the King his Heirs c. shall name and appoint c. and that the said Stewards Bayliffs c. shall be attendant and obedient to all the King's Courts for all Returns of Writs c. as the Officers of the late Owners should have been c. and that no Sheriff Under-Sheriff c. should intromit meddle in with or upon the Premisses otherwise or for other cause than they lawfully might have done before the same Premisses came to the possession of the King They find that Edward the Sixth being seised by descent from Henry the Eight Anno primo of his Reign per Lit ' Patent ' ex gratia advisamento Concilii sui dedit concessit cuidam Tho. Seymour Mil ' Dom ' Seymour de Sudley omnia illa Hundreda de Crochen c. nuper Monasterio
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.
So of Perjury and Nusance 370 Indictment before Justices of Peace for a Non feasance ought not to conclude contra pacem 108 111 For suffering an Escape 169 Quasht for Incertainty 305 306 No Copy of the Indictment allowed in capital Crimes yet the Mirror calls it abusion 354 For Perjury extrajudicial 370 Infant See Executor A Condition and Deed obliges Infants as much as others 200 205 Intent and Intendment See Uses Verdict Ioyntenant Two Joyntenants one Grants bargains and sells all his Estate and Interest the to other this amounts to a Release and must be so pleaded 78 A Devise to two equally to be divided between them and to the Survivors of them makes a Joyntenancy upon the import of the last Words 216 227 Issue A Lease is made to commence after the Death of J. S. without Issue J. S. hath Issue and dyes and then the Issue dyes without Issue the Lease commences For Issue being nomen collectivum when ever the Issue fails the Term commences 229 Iudgment Obtained by Forgery vacated 78 So if procured by Fraud and deceipt 49 Arrested where there appears no Cause of Action 310 Warrant to confess a Judgment the Party dyes before it be confest this is a Countermand 310 Irisdictition See Sewers Judgment in an Inferiour Court reverst for want of Jurisdiction 28 Every Subject has the Liberty of removing his Suit into a Superiour Court 46 If there be several Contracts at several times for several Sums each under 40 s and altogether amount to a Sum sufficient to entitle the Superiour Court they shall be there put in Suit and not in a Court that is not of Record 65 73 In Assumpsit brought in an Inferior Court the performance of the Promise must be as well within the Jurisdiction as the Promise it self 72 Inferiour Courts ought not to award a Capias but upon Summons first returned and tho' a fault in the Process is aided by appearance yet an Action of false Imprisonment lies 220 249 Where infra Jurisdictionem is necessary to be set forth and alledged 240 243 The Liberty of the Subject is infringed by bringing him within a private Jurisdiction when the matter arises out of it 333 Action on the Case for the same 369 Iury. Where a Juror may be withdrawn 28 In case of Life and Member if the Jury cannot agree before the Judges of Assizes depart they are to be carried after them in Carts 97 Twelve necessary on a Writ of Enquiry as well as in a Venire 113 Where the Iury's eating or drinking at the charge of either Party shall avoid their Verdict and what other Actions shall be sufficient Cause to avoid it 125 Whether the Statutes requiring Jurymen to have so much Freehold extend to Corporate Towns 366 K. King THE King in bringing an Action may choose his County or wave that which he had chosen before as he may wave his Demurrer and joyn Issue 17 King and Council may disfranchise any Member of a Corporation The Walls of N. were ordered to be pulled down by King and Council à fortiori an Alderman there may be displaced upon just Cause 20 The King may stay the Proceedings and the Attorney General Enter a noli prosequi after the Jury are returned 33 Lords Spiritual and Temporal and Commons the three Estates and the King Head of all 325 Knight See Abatement L. Lancaster OF the Dutchy Court of Lancaster and its Jurisdiction 155 infra Latitat A Man may take out a Latitat before the Money is due yet the Party must not be Arrested upon it before 28 Lease See Recovery No reason to favour Long Leases By the antient Law a Lease for about 40 years was void and they are never without suspicion of Fraud 58 A Lease made to begin from the End of a Lease misrecited shall commence presently 83 A Lease without any Date specified or an impossible Date as from the 40th of September shall commence presently 137 What Act determins a Lease at Will 247 Leet The Kings Court granted to Lords of Mannours as derived out of the Town 26 Presentments may be there for the King and the Lord of the Mannor ibid. Fines in Leets where they may bedistrained for and where not 105 Presentment at a Leet quasht where the Court appears to be held above a Month after Michaelmas 107 Difference between the Stewardship of a Leet and a Court Baron 153 Libel The having a Libel in ones Lodging and not delivering it to a Magistrate was only punishable in the Star-Chamber unless the Party Maliciously published it 31 Liberties Of Returna Brevium 405. Their Vexation and Inconveniency 412 Liberties belonging to Monasteries came to the King on their Dissolution and that without the Aid of the Statute 32 H. 8. chap. 20 407 Limitations Whether the Statute of Limitations extends to bar a Promise between Merchants relating to Trade 90 Livery Livery within view where good and where not 186 London By the Custom of London a Debtor may be Arrested before the Mony is due to make him find Sureties 29 What Debts shall be Attachable by Foreign Attachments according to the Custom of London 112 113 Custom to commit Offenders for obstinately and contemptuously refusing to obey the Order of the Court of Aldermen Good 115 Whether they may Imprison a Stranger for Marrying their Orphan without License 178 Their By-Law to restrain the number of Carts Good 21 196 Of their Duty of Scavage 298 Custom to Disfranchise and commit a Freeman for speaking opprobrious Words of an Alderman Not good 327 Of their Duty of Water Baylage 351 M. Mandamus TO restore an Alderman 19 Lies not to restore a Town Clark where the Corporation have power to Grant the Office Durante beneplacito 77 82. So of a Recorder 342 Lies to admit a Deputy into an Office where the Office may be executed by Deputy 111 To swear a Churchwarden 115 267 To restore a Sexton 143 153 Lies for an Office but not for a Service ibid. Lies to an Inferiour Court to cause them to give Judgment according to a Statute 188 To restore a Common Council Man in a Corporation 302 To restore an Attorney in an Inferiour Court 331 To the Ecclesiastical Court to prove a Will 335 Misnomer When and how amendable 13 Name mistaken in the Issue if right before in the Record amendable 25 Monasteries See Liberties Pensions out of Monastery Lands where to be sued for 120 N. Naturalization OF Naturalization and Denization their General Effects and Operation 418 419 Notice Whether necessary upon a Counter bond to save harmless 36 37 Upon an Award 93 In what Cases necessary and where not 200 201 Nusance See Action Whether the erecting of a Glass-house be a Nusance 26 A Rope-Dancers Booth in the Street a Nusance and a Writ to the Sheriff awarded to prostrate the Bulding 169 O. Oath OF the Marshal of the King's Bench 65 No exception to the Oath of Allegiance that the words of
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
Rogers v. Bradly 143 Rozer v. Rozer 36 Rudyard 's Thomas Case 22 S SAlisbury 's the Lord Case 365 Samon v. Jones 318 Sarsfield v. Witherly 292 Sayle v. Freeland al' Infants 350 Sherborn v. Colebach 175 Shipley v. Craister 131 Smithson 's Sir Jerom Case 345 Snode v. Ward 197 T TArget v. Loyd 272 277 Thompson v. Leach 198 Tovey v. Pitcher 228 234 Tregonwell Jane Vid. Executrix of John Tregonwell v. Sherwin 262 Trethewy v. Ellesdon 141 Trippet v. Eyres 110 113 Tonstal v. Brend 174 Turner Methuselah v. Sir Samuel Sterling 25 Turner 's Case 348 W WAlden Sir Lionel v. Mitchel 263 265 Warren v. Sainthil 185 186 Watmough v. Holgate al' 219 221 Web Prescilla v. Moore 279 282 Welbie v. Phillips 129 West v. The Lord Delaware 357 Westby 's Case 152 Whitaker v. Thoroughgood 130 White v. Ewer 340 Whitmore Frances Vid. v. Weld al' 367 Williams v. Bond 238 Willows v. Lydcot 285 Woodward al' v. Fox 187 213 267 Wright v. Wyvell 56 A TABLE OF THE PLEADINGS IN THE SECOND PART A Actions upon the Case 1. IN a Special Indebitatus Assumpsit against an Attorney The Plaintiff declares That whereas T. S. was Indebted to the Plaintiff in a certain Sum of Money exceeding 12 l and the Defendant was indebted to the said T. S. in 12 l aut eo circiter The Defendant promised That if the Plaintiff would procure an Order under the Hand of the said T. S. for payment of the Money which he owed the said T. S. or any part thereof that then he would pay the same and avers that he procured such Order and shewed it to the Defendant and requested payment which he refused p. 69 After Imparlance the Defendant demurs to the Declaration 70 The Plaintiff joyns in the Demurrer 71 2 Against a Common Carryer for losing Goods delivered him to Carry 75 The Plaintiff declares that the Defendant is a Common Carryer and sets forth the Custom of England and the particulars of the Goods delivered to him to be Carried from B. to London and that he paid him for the Carriage and the Defendant lost them 75 76 Issue thereupon 77 3. Against a Sheriff for Returning Nulla Bona upon a Special Outlawry when the Party had Goods 84 The Declaration sets forth the Special Matter 85 86 Defendant pleads That a Prerogative Writ came out of the Exchequer whereupon the Defendant seized the Gâ—ods Nulla alia â—ona 87 The Plaâ—â—tiff demurs 88 4. For not Folding his Sheep upon the Plaintiffs Land according to Custom 136 The Declaration sets forth the special Custom and Cause of Action Issue thereupon 137 5. For Stopping up a Foot-way 185 The Plaintiff Declares That he was possest of and did inhabit in an ancient Messâ—age and that he had and ought to have a Foot-way for himself and his Servants over such a Close c. as belonging to his said Messuage and that the Defendant to disturb him in his way dug Ditches and Trenches cross the Way and erected Hedges and Fences cross it whereby he was hindred and deprived of his Way 186 6. Indebitatus Assumpsit upon several Promises For Moneys had and received for the Plaintiffs use For Money laid out for the Defendant For Money borrowed of the Plaintiff 254 For Money due to the Plaintiff for the Arrearages of an Account The Defendant hath not paid the said several Sums tho' requested c. As to the first and second Promises the Defendant pleads Non assumpsit infra sex annos as to the third and fourth Promises he pleads Non assumpsit 255 As to the first and second Promises the Plaintiff Replies and sets forth an Original sâ—ed forth iâ— a Clausum â—â—egit within the six years ea â—ntâ—ntione to â—eclare against him and that he promised within six years next before the Suing out of that Original The Defendant craves Oyer of the Original and hath it and says that the Writ will not warrant the Declaration 256 And prays Judgment whether the Plaintiff shall be admitted to set forth that Writ ad Warrantizandum Narracon ' suam The Plaintiff demurs to the â—ejoynder The Defendant joyns in Demurrer 258 7. For Words viz. Papist and Pensioner 263 The Plaintiff declares that he is a Protestant and never profest the Romish Religion that he hath been a Member of Parliâ—â—ent and did his Duty therein sets forth the Colloquium of the Plaintiff and of his being a Member of Parliament the first Words ex ulteriori malitia other Words 264 The Defendant pleads Not guilty 265 8. In Assumpsit the Plaintiff declares for a Runlet of Wine Another Indebitatus as well for Meat Drink Brandy and Tobacco as for Horse-Meat A Quantum meruit for Meat Drink Wine Brandy and Horse-Meat found and provided by the Plaintiff as an Innkeeper 279 Another Indebitatus for Goods sold An Insimul computasset the Plaintiff says that the Defendant hath not paid the several Sums inde producit sectam 280 The Defendant pleads an Outlawry in Bar and shews that J. S. impleaded the Plaintiff in the Common Pleas in an Action of Trespass and for not appearing she was waived and that the Outlawry is yet in force hoc paratus est verificare per Recordum Demurrer to the Plea Joynder in Demurrer 281 Assault Battery and Wounding Vide Trespass 2. Assignees Action by and against them Vid. Covenant 4. 5. Assumpsit Vid. Actions on the Case 1. 6. 8. Award vid. Debt 2. 4. 6. B Bankrupcy vid. Trover 1. 2. Bill of Exchange vid. Error 2. By Law vid. Debt 7. C Carryer Action against him Vid. Action on the Case 2. Clausum fregit Vid. Action on the Case 6. Covenant 1. BRought by the Executor of a Bishop against the Executors of an Assignee of the Executor of the Lessee 51 The Declaration sets forth the Indenture of Demise of a Rectory c. with the Consideration and Particulars demised The Covenants to repair and yield up The Lessees Entry c. 51 52 53 And assigns the Breach in permitting the Chancel c. to be out of Repair Profert in Cur ' the Lease 51 And Letters Testamentary of the Bishop 55 Defendants Demur generally 55 2. Against an Attorney upon Articles of Agreement for quiet enjoyment of Lands 59 The Declaration sets forth That the Defendant Covenanted pro ex parte of another Recites the Articles avers performance of all Covenants on the Plaintiffs part and assigns the Breach That the Plaintiff and his Servants were sued in an Action of Trespass in the Common Pleas and Damages recovered against him which he was compelled to pay sic idem the Plaintiff non quiete pacifice tenuit 60 The Defendant pleads non infregit Conventionem and Issue thereupon 61 3. By Executors upon certain special Covenants with their Testator for a Demise of Land which they set forth 97 They aver performance by the Testator in his life time and since his death by the
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
forma as he hath set forth in his Avowry Petit Judicium dampna c. loc ' in quo c. modo forma prout praed ' Simo per advocar ' suum praed ' superius supponit Et hoc parat ' est verificare unde ex quo praed ' Simo capc̄onem Equuli praedicti in praedicto Clauso in quo c. superius cogn ' idem Samuel pet ' Judicium dampna sua occ̄one capconis injuste detenconis Equuli illius sibi adjudicari c. Demurrer to the Plea Et praedict ' Simo dic ' quod praed ' placitum praedict ' Samuel ' superius replicand ' placitat ' materiaque in eodem content ' minus sufficien ' in lege existunt ad ipm̄ Samuel ' acconem praed ' versus eum habend ' manutenend ' quodque ipse ad placitum illud modo forma p̄d ' replicand ' placitat ' necesse non habet nec per legem terrae tenetur aliquo modo respondere Et hoc parat ' est verificare unde pet ' Judicium si praed ' Samuel acconem suam praed ' inde versus eum habere debeat c. Joynder in Demurrer Et praedict ' Samuel ex quo ipse sufficien ' materiam in lege in replicacone in sua praedicta ad acconem suam praed ' versus praefat ' Simonem habend ' manutenend ' superius allegavit quam ipse parat ' est verificare Quam quidem materiam idem Simo non dedic ' nec ad ill ' aliqualit ' respondet set verificacon ' ill ' admittere omnino recusat Idem Samuel ut prius pet ' Judicium dampna sua occone capconis injuste detenconis Equuli illius sibi adjudicari c. Et quia Justic ' hic se advisare volunt de super praemissis priusquam Judicium inde reddant dies dat' est partibus praedictis hic usque ad audiend ' inde Judicio suo eo quod iidem Justic ' hic inde nondum c. Denney versus Mazey IN a Replevin the Plaintiff Declared of taking of his Horse Colt at S. in quodam loco vocat ' Townfield The Defendant saith that before the Taking one Elizabeth Mann was seised in Fee de praedicto loco in quo c. and 20 Septemb. Anno primo Willielmi Mariae demised the Premisses to him for a year then next ensuing and that he entred and avowed the taking of the Plaintiffs Horse damage feasant The Plaintiff Replied that the said Elizabeth Mann was seised of the Premisses in Fee and before the Lease to the Avowant viz. the 5th of June in the said first year of the King and Queen she demised to the Plaintiff the Premisses habend ' from the second day of March then last past for the Term of six years by virtue of which he entred and put his Horse into the Premisses and traverseth the Lease made to the Avowant To this the Avowant Demurred generally Pollexfen Chief Justice inclined that the Traverse was no cause of Demurrer tho' it might have been omitted He said there were divers Authorities against Heylars ' Case in the 6 Co. which is Reported to the same effect in Mo. 551. 1 Cro. 658. as 1 Cro. 754. Covert's Case Hob. 81.103 Traverse where the Matter in confessed and avoided and the Books generally are only that there need be no Traverse as the Bishop of Salisbury and Hunt in 3 Cro. 581. and Kellend and White 3 Cro. 494. the other Justices doubted relying upon the Authority of Heylar's Case and Rice and Harveston's Case 2 Cro 299. and Yelv. 221. where 't is said that such a Traverse makes the Plea vitious Vid. Mo. 557. But here the Demurrer being General 't is but matter of Form and clearly aided by the Statute of 27 Eliz. where if one Confess and Avoid and Traverse 't is in nature of a Double Plea Vid. That it is good upon a General Demurrer Edwards and Woodden 3 Cro. 323. So Judgment was by the whole Court given for the Plaintiff Woodward versus Fox Quod vide ante ultimo Termino THe Case was this Term Argued again by Serjeant Pemberton for the Defendant and by Serjeant Powell for the Plaintiff upon the Point Whether the Nomination to the Office being forfeited by the Statute of Ed. 6. it did belong to the King or the Bishop in whose Diocess the Archdeaconry was to make the Register But Pollexfen Chief Justice desired them to Consider Whether the King admitting he had a right by the Statute could grant this Office of the Register before Office found of the Forfeiture Note In case of Simony the Presentation vests in the King without Office Adjornatur Morgan versus Hunt IN Covenant the Plaintiff Declared that the Defendant Let to him a certain House and Lands and Covenanted that he should quietly and peaceably enjoy it without any manner of interruption molestation or disturbance and that by virtue of the said Demise he ented and sometime after the Defendant exhibited a Bill against the Plaintiff in the Court of Chancery wherein he charged the Plaintiff with ploughing up Meadows and the committing of divers Wastes and did obtain an Injunction out of the said Court against the Plaintiff whereby he was interrupted in his Ploughing c. and that afterwards the said Bill was dismissed with 20 l Cofts and so the Defendant had broken his Covenant After a Verdict for the Plaintiff I know not upon what Issue it was moved in Arrest of Judgment First That here was no sufficient Breach set forth It was said that the Law does not take notice of Proceedings in Chancery Poph. 205. it is said If one be possessed of Lands by Extent and by a Decree in a Court of Equity he is forced to pay a Rent out of the Lands this shall not be a legal Eviction or Recovery for so much Secondly The Suit in Chancery here is not touching the Lessees Estate or Title but for Waste which he ought not to do and tho' the Suit might be groundless yet it not relating to his Title or Possession was no breach of Covenant The Judgment was stayed by the Opinion of the whole Court for the last Reason for this was interruption or disturbance within the Covenant the Subject matter of the Suit being for Waste But the Court will take notice of a Suit in Chancery and 1 Cro. 768. an Assumpsit in Consideration of desisting from exhibiting a Bill in Chancery was held a good Consideration Anonymus IN a Covenant That the Defendant should keep in good Repair the House Outhouses and Stables and the Breach assigned was that the Defendant had permitted the Racks in the Stable to be in decay After Verdict for the Plaintiff it was moved in Arrest of Judgment that the Plaintiff had not set forth that the Racks were fixed in the Stable and so part of the Freehold for they might be in the Stable and lye loose
there be several Extents upon Statutes acknowleged at different times that they are all present Rights because the Liberate delivers the Land to the Conisee to hold immediately ut liberum tenementum and therefore if a Fine be levied he that hath the Extent upon the puisne Statute must claim immediately as well as he that hath the first Extent whereas the Extent upon a latter Statute until there comes an Extent upon an elder Statute is either turned to a Reversion as I Argued before or in the nature of a future Interest And therefore till the first Extent be barred or some way determined he that hath the Extent upon the puisne Statute can have no present Right and consequently is not bound to claim but his Right is preserved by virtue of the second saving of the Statute of 4 H. 7. But it appears by the Verdict that above ten years passed after the Fine of Thomas Lewis without any claim by Edward Lewis so that I conceive he was barred as to both Extents So that which I have taken notice of to have already passed in the Case is enough to bar the two Extents of Knight and Gerrard and to let in the Right of the Extent of Elwaies and Burroughs so that I think they might have entred or made their claim without any thing more But it is found further in the Case that in the year 1670. Sir John Lewis devised the Premisses by his Will in writing to Edward Lewis and the Heirs of his Body and for want of such Issue to his two Daughters who are married to the Earls the Lessors of the Plaintiff and died in August 1671. and 't is found that at the time of the Will and also of the Death of the said Sir John Lewis the Lands were in the possession of Edward Lewis and in Michaelmass Term 1671. Edward Lewis levied a Fine of the Lands in question to Francis Lewis to the use of Edward the Conusor and his Heirs Now if we should admit that the Extents of Knights and Gerrard's Statute were not barred by the Fine of Thomas Lewis let us see what will become of them upon these things done since And here I will agree with those that have Argued for the Defendant that the Devise of the Inheritance to Edward will not drown the Extent upon Gerrard's Statute For as I have Argued before I take the Extent of Elwaies and Burrough's Statute after the eviction by the elder Statute to be turned to a Reversional Interest and then the interposing of the Reversion will hinder the drowning of Gerrard's Extent in the Fee devised to Edward Lewis as aforesaid Now therefore let us see what is found to have been done further in the Case and I conceive if we should grant as the Counsel for the Defendant have urged That the Fine by Thomas Lewis had no effect as to the barring of Gerrard's Extent nor that the Devise of the Inheritance of the Premisses to Edward Lewis will not drown the Extent as I agree it did not by reason of the Extent interposing that was in Elwaies and Burrough's Case being as I have Argued a Reversional Interest I say admitting all this yet when Edward Lewis who had the Extended Interests upon Knights and Gerard's Statute in him and the Estate of Inheritance also in Michalmass Term 1671. Levied the Fine to Francis Lewis to the use of himself and his Heirs that Fine must destroy and determine the Extended Interests that were in him For where a Fine is levied by him that hath the Fee and Freehold in him whatever Right Estate or Interest there is in him besides passeth inclusively in the Fine not by way of transferring the very Interest it self but as it were consolidating with the Fee So as to determine and extinguish such Interest none can pretend that after this Fine of Edward Lewis the Extended Interest did continue in him They could not pass to Francis Lewis as assigned or transferred by the Fine why then they must be destroyed And I think it cannot be denied but that Elwaies and Burroughs might have entred immediately the two former Extents being taken out of the way And 't is found that at the time of the Fine Edward Lewis was in possession so that Five years passing without Claim after the Fine for 't is found that Satisfaction was not acknowledged till Nine years after 't is plain that the Extent upon Burroughs and Elwaies Statute was barred as to the present Right For I think its clear that when a former Statute is determined whether it be by release of the Debt by purchase of part of the Lands by being barred by Non-claim upon the Fine Satisfaction acknowledged or any other means this sets in the puisne Statute And now we are come to the great Question in the Case Admitting the Extent upon Elwaies Statute was barred in respect of the present Right Whether a new Rightcame upon the satisfaction acknowledged upon Gerrard's Sta-tute so that there should be Five years more given by the second saving of the Statute of the 4 H. 7. to claim upon that new Right It has been much urged by those that Argued for the Defendant that wherever there is a Reversion or an Estate to commence after the end of another Estate that if a Fine be levied tho' the Case be so that he in Reversion may enter or bring his Action so that Five years Non-claim will bar him as to the present Right or Remedy yet he shall have Five years more to claim when the Time is incurred or the Limitation come That the first or particular Estate should end Now though the Extents upon the two first Statutes were so avoided that there might have been an entry upon Elwaies Extent yet the proper and natural determination of Gerrard's Extent was not till satisfaction acknowledged upon Record or by perception of Profits appearing upon Record and then there shall be Five years given to claim and that by virtue of the second saving of the Statute of the 4 H. 7. which is to this purpose Viz. Saving to all persons such Right as first shall grow remain descend or come to them after the Fine levied by reason of any matter before the Fine levied so that they take their Action or pursue their Right within Five years next after such Right shall come Now I do not see that the Condition of this saving was performed by those that had the Right of Elwaies and Burroughs Extent the Right indeed came after the Fine levied and upon a matter before for it came after that the Extents upon Knights and Gerrards Statutes were barred or otherwise avoided Whether upon the Non claim by the first Fine or their being destroyed by the second Fine which was levied by Edward Lewis but there was no claim within Five years after either of those Fines so the Right clearly was not pursued within Five years after the Right first came And this has been held necessary
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
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
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
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