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
word Children My second Reason is from the manner of the Limitation which is to his Issue and of his Body lawfully begotten upon the second Wife Phrases agreeable to an Estate Tail and the meaning of a Testator is to be spelled out by little Hints It is admitted in Wild's Case in the 6 Co. 17. that if the Devise had been to the Children of their Bodies it would have been an Entail Thirdly It appears by the Devise that the Testator knew there could be no Children at that time and shall not be supposed to intend a contingent Remainder Fourthly It appears that the Testator did not intend to prefer the Children of the first Wife of Bernard but did the Children of the second and therefore cannot be thought to mean that John the younger Brother of Bernard should take before failure of the Issue which Bernard should have by his second Wife And to this purpose is Spalding's Case 3 Cro. 185. A Devise to his eldest Son and the Heirs of his Body after the death of his Wife and if he died living the Wife then to his Son N. And devised other Lands to another Son and the Heirs of his Body and if he died without Issue then to remain c. The first Son died living the Wife It was strongly urged that his Estate should cease for being said If he died living the Wife this was a Corrective of what went before But 't was Ruled by all the Court that it was an absolute Estate Tail in the first Son as if the words had been If he died without Issue living the Wife for he could not be thought to intend to prefer a younger Son before the Issue of his eldest Fifthly The words are further and for want of such Issue then to John which words in a Will do often make an Estate Tail by Implication As 4 Jac. Robinson's Case A Devise to A. for Life and if he died without Issue then to remain A. took an Entail So Burley's Case 43 Eliz. A Devise to A. for Life Remainder to the next Heir Male and for default of such Heir Male then to remain Adjudged an Estate Tail 'T is true Dyer 171. is where Lands were Devised to a man and the Heirs Males of his Body and if he died without Issue c. these last words did not make a Tail General to the Devisee For an Implication of an Estate of Inheritance shall never ride over an express limitation of an Inheritance before being 't is said here for want of such Issue the Land should remain 't is plainly meant that it should not before the Issue failed and then the Issue must have it so long for none else can and so 't is an Estate Tail I come now to Authorities 6 Eliz. Anderson num 86. Moor pl. 397. A Devise to his Son for Life and after his decease to the Men Children of his Body said to be an Estate Tail and so cited by Coke in that Book and so contrary to his Report of it in Wild's Case Bendloes num 124. But that Case is not so strong as this for Children is not so operative a word as Issue Rolls 839. A Devise to his eldest Son for Life non aliter for so were the words tho' not printed in the Book and after his decease to the Sons of his Body it was but an Estate for Life by reason of the words Non aliter Hill 13 Car. 2. Rot. 121. Wedgward's Case A Devise to his Son Thomas for Life and after his decease if he died without Issue living at his death then to the Daughter c. it was held to be an Estate for Life But were it an Estate Tail or no it was not necessary to be Resolved the Case depending upon the destruction or continuance of a Contingent Remainder which would have been gone had the Devise made an Estate Tail again there being an express Devise for Life they would not raise a larger Estate by Implication Again Wild's Case where Lands were Devised to A. for Life Remainder to B. and the Heirs of his Body Remainder to Wild and his Wife and after their decease to their Children And the Court of Kings-Bench were at first divided Indeed it was afterwards adjudged an Estate for Life to Wild and his Wife First Because having limited a Remainder in Tail to B. by express and the usual words if he had meant the same Estate in the second Remainder 't is like he would have used the same words Secondly It was not after their decease to the Children of their Bodies for then there would be an Eye of an Estate Tail Thirdly The main Reason was because there were Children at the time of the Devise and that was the only Reason the Resolution went upon in the Exchequer Chamber And tho' it be said in the latter end of the Case That if there were no Children at that time every Child born after might take by Remainder 't is not said positively that they should take And it seems to be in opposition to their taking presently but however that be it comes not to this Case For tho' the word Children may be made nomen collectivum the word Issue is nomen collectivum of it self Hill 42. and 43 Eliz. Bifield's Case A Devise to A. and if he dies not having a Son then to remain to the Heirs of the Testator Son was there taken to be used as nomen collectivum and held an Entail I come now to answer Objections First 'T is objected that in this Case the Limitation is expresly for Life and in that respect stronger than Wild's Case And this is the great difficulty But I Answer That tho' these words do weigh the Intention that way yet they are ballanced by an apparent Intention that weighs as much on the other side which is That as long as Bernard should have Children that the Land should never go over to John for there was as much reason to provide for the Issue of the Issue as the first Issue Again A Tenant in Tail has to many purposes but an Estate for Life Again 'T is possible that he did intend him but an Estate for Life and 't is by consequence and operation of Law only that it becomes an Estate Tail 1651. Hansy and Lowther The Case was A Copyholder surrendred to the use of his Will and Devised to his first Son for Life and after his decease to the Heir Male of his Body c. This was Ruled to be an Estate Tail and this differs from Archer's Case in the 1st of Co. for that the Devise there was for Life and after to the Heir Male and the Heirs of the Body of that Heir Male There the words of Limitation being grafted upon the word Heir it shews that the word Heir was used as Designatio personae and not for Limitation of the Estate So is the Case of Clerk and Day 1 Cro. 313. Another Objection was That there being a Power appointed
his Bill to have the Land Conveyed according to the Agreement above But for the Defendants it was much insisted upon that this being to settle the Lands in case Thomas should dye without Issue it should not be regarded in this Court for the Execution of a Trust of a Remainder or Reversion in Fee upon an Estate Tail shall not be compelled because it is subject to be destroyed by the Tenant in Tail as here Thomas might have done in case he had made a Settlement according to the import of that Writing who therefore could not have been compelled himself to have executed this Agreement But the Lord Chancellor Fynch Decreed the Land for the Plaintiff because it was proved that the Marriage with the Plaintiffs Wife was in expectation of the performance of this Agreement and he was obliged to have left the Land to the Plaintiff if he had had no Issue Termino Sanctae Trinitatis Anno 34 Car. II. In Cancellaria Collet versus Collet WIlliam Fox having three Daughters Mary Elizabeth and Martha the two latter being Married and the first a Widow by his Will devised in these Words Viz. I give unto Martha my Daughter the Sum of 400 l to be paid unto her by my Executors within one year next after my decease But I will and my desire is that Cornelius Collet the Husband of Martha upon the payment of the said 400 l shall give such Security as my Executors shall approve of that the said 400 l shall be laid out within 18 Months next after my decease and purchase an Estate of that value to be setled and assured upon her the said Martha and the Heirs of her Body lawfully begotten And in the Close of his Will were these words following Viz. I Will That after my Debts which I shall owe at the time of my Decease and my Funeral Expences and the Probat of this my Will be discharged then I do give all the rest of my Personal Estate Unbequeathed to purchase an Estate near of as good value as the same Personal Estate shall amount unto within one year next after my my decease Which said Estate so to be purchased I Will shall be setled and assured unto and upon my said three Daughters Mary Elizabeth and Martha and the Heirs of their respective Bodies lawfully begotten for ever or otherwise my said Daughter Mary and the Husbands of my said two other Daughters Elizabeth and Martha shall for such Moneys as they shall receive of my said Executors for the Overplus of my Personal Estate enter into one or more Bonds in the double Sum of Money as each part shall amount unto the same being to be divided into three parts unto my said Executors within 18 Months next after my decease to settle and assure such part or Sum of Money as each of them shall receive and have by this my Will for the Overplus of my Personal Estate unto and upon the Child and Children of my said Daughters Mary Elizabeth and Martha part and part alike Martha the Wife of Cornelius Collet died within six Months after the Testator leaving Issue only a Daughter who died within four Months after the Mother the other two Sisters surviving Cornelius Collet took out Letters of Administration both to Martha his Wife and likewise to his Daughter the Four hundred Pounds and likewise the Overplus of the Personal Estate being unpaid or disposed of Cornelius Collet preferred his Bill against the Executors and the surviving Sisters and thereby demanded the 400 l and likewise a third part of the Overplus which amounted unto 700 l And the Cause came to be heard before the Lord Chancellor upon Bill and Answer who Decreed the 400 l to the Plaintiff but as to the Surplus of the Estate the Bill was dismissed altho ' it was much insisted upon for the Plaintiff that he might have given Bond to secure the Surplus for his Child and so from the Child it would have come to him as Administrator But seeing that no Interest could vest in the Child till the Election were determined it not being material as to this Point whether the Executors or the Husband aâ— the Election the Father could not claim it as Administrator to the Child And then if the Money had been laid out in Land and the Settlement according to the direction of the Will the Husband would have had no benefit for there would have been a Ioynt Estate for Life in the Daughters with several Inheritances and no severance of the Ioynture by the Marriage and having Issue Co. Inst and so no Tenant by the Courtesie Therefore as to the Surplusage the Bill was Decreed to be dismissed Note As to the 400 l the Order of my Lord Chancellor was That Interest should be paid for it from the time of bringing the Bill Termino Sancti Michaelis Anno 34 Car. II. In Cancellaria West versus The Lord Delaware WEST Heir apparent of the Lord Delaware Exhibited his Bill against the said Lord setting forth That upon a Marriage agreed to be had between him and the Daughter of one Mr. Huddleston with whom he was to have 10000 l Portion The Lord his Father Articled to settle Lands of such yearly value for the Wives Ioynture for their maintenance and the Heirs of their Bodies c. That the Wife being now dead and without Issue and no Settlement made the Bill prayed an Execution of the Articles and a discovery of what Incumbrances there were upon the Lands to be setled To this the Lord Delaware Answered That he never intended to settle Lands but for the Wives Ioynture only and that the Plaintiff her Husband was not named in the Articles and so was Advised He need make no Settlement and upon that Reason the Plaintiff could not require him to discover Incumbrances An Exception being taken to the Answer for that it did not discover any thing touching Incumbrances it was Argued before my Lord and for the Defendant it was alledged That by the Course of the Court the time of the Discovery should be when the other Point was determined for if that be for the Defendant then no Discovery can be required but if otherwise that then the Defendant shall be put to answer Interrogatories as is usual in Cases of like nature And it cannot be Objected That the Estate may be charged with Incumbrances since the Bill because they will be of no avail On the other side it was said That this would create great delay for upon the discovery of Incumbrances other parties must be made to the Bill and therefore this Case differed from the Case of Account which concerns the Defendant himself only but the Question now is only for the making proper Parties The Court Ordered That a further Answer should be made Nota If a man deviseth that such a Sum of Money shall be paid out of the Profits of his Lands and the Profits will not amount to the Sum in such case the Land
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
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
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
he had a way over the place where it is not material to the justification whither it leads it being after a Verdict when the right of the case is tried And it is aided at last by the Statute of Oxford 16 Car. And so Twysden said it was the Opinion of all the Iudges at Serjeants Inn he putting the Case to them at Dinner Norris and Cuffuil IN an Action upon the Case the Plaintiff declared That the Defendant in consideration of six pence paid in hand the 13 of Jan. 17 Car. and that the Plaintiff would pay him 20 s a Month he promised to serve him in his Glass-house after the first Iourny of Glass and sets forth quod primum iter vitrij tunc prox sequens aggreamentum praedictum fuit 21 Feb. 17 Car. which was the year before and that the Defendant did not come to serve him After Verdict for the Plaintiff it was moved in Arrest of Judgment That the Plaintiff had not declared sufficiently of any Iourny of Glass after the Agreement but that alledged appears to be the year before Et Adjornatur This Case being moved again Twysden said he had put it to the Iudges at Serjeants Inn and they were all of Opinion that it was well enough after a Verdict Heath versus Pryn. IN an Ejectione Firmae of the Rectory of Westbourn in Chichester upon Not Guilty pleaded it appeared upon the Evidence that the Plaintiffs Title was as Presentee of the Grantee of the next Avoidance from the Lord Lumly and Letters of Institution under the Seal of the Ordinary were produced but by reason of the times the Ordinary Parson and Patron being Sequestred no Induction followed thereupon until the Kings Restauration this Institution was 1645. Soon after the Defendant was placed in this Church by an Ordinance of Parliament and hath enjoyed it ever since and there was an Act of Parliament made 12 Car. 2. which confirms Ministers in their Possessions of any Benefice with cure tho' they came not in by Admission Institution and Induction but according to a Form used in those times in which Act there is also a Clause of Restitution of sequestred Ministers to such Benefices as they had been seized of by taking the profits It was alledged on the Defendants side that the Plaintiff proving nothing of a Presentation the Institution could not be admitted as Evidence of it especially in this case where the Induction was so long after to which the Court did incline And then the Oath of the Grantee of the next Avoidance was offered which was not admitted altho' his Interest was executed by the Presentment And it was said that an Assignor might be sworn a Witness to the Assignment of a Lease where there were no Covenants It was also said that the Plaintiff was not within the clause of Restitution of the Act of 12 Car. because he was never seized by taking the Profits which cannot be until Induction according to Hare and Bicklers Case in the Commentaries quod suit concessum To which it was replied That neither was the Defendant within the clause of Confirmation because the Rectory in question was not a Benefice with cure for there is belonging to it a perpetual Vicaridge Endowed and the Vicar comes in by Admission Institution and Induction who performs Divine Service pays the Synodals and Procurations repairs the Chancel and therefore it hath been adjudged that such a Vicar shall have Arbores in Coemiterio And it was said that the Statute of 21 Hen. 8. against Pluralities doth not extend to Rectories where there are Vicaridges Endowed And Linwood describes a Benefice without cure cujus cura Vicariis perpetuo exercenda est Otherwise where the Vicar is Temporal and removeable And the difference is inter curam actualem habitualem And 't is the Cure that the Rector hath and so hath every Bishop in his Diocess who when he gives Institution saith accipe curam tuam et meam but the Act only extends to the first It appeared also on the other side That the Parson had come once or twice a year Preached and Administred Sacraments and that without the Vicars leave and also paid First-fruits Vpon all this matter the Opinion of the Court was That the Parson had a concurrent Cure with the Vicar and resembled it to the case where there are two Incumbents in one Church and coming in by Admission Institution and Induction the Vicar could not discharge him of the cure of Souls But Donatives which are conferred by Laymen are sinè cura Note The Plaintiffs Counsel would have denyed the Act of 12 Car. to be an Act of Parliament because the were not Summoned by the Kings Writ but the Iudges would not admit it to be questioned and said That all the Iudges resolved that the Act being made by King Lords and Commons they ought not now to pry into any defects of the Circumstance of calling them together neither would they suffer a point to be stirred wherein the Estates of so many were concerned Vid. Hob. 109. 33 H. 6. 19. Notwithstanding all this the Jury found for the Plaintiff It seemed by the Court in this case that Letters of Institution must be under the Episcopal Seal sed vide Cro. lib. 1. 249. Vid. postea The King against Burford HE was Indicted for that he scandalose contemptuose propalavit publicavit verba squentia viz. That none of the Justices of Peace do understand the Statutes for the Excise unless Mr. A. B. and he understands but little of them no nor many Parliament men do not understand them upon the reading of them And it was moved to quash the Idictment for that a man could not be Indicted for speaking◠of such words and of that Opinion was the Court But they said he might have been bound to his Good Behaviour Stones Case A Writ of Priviledge was prayed for Stone an Attorney of the Court who was Copyholder of a Mannor where the Custom was for the Homage to chuse one of the Tenants to collect the Lords Rents for the year following and they elected him But it was said that this might be taken to be parcel of his Tenure for the Lords use to seize the Land for not executing of it and his Priviledge ought not to deprive the Lord of the Service of his Tenant 1 Cro. 422. In the Book of H. 6. The Archbishop of York being bound by Tenure to Collect the Tenths pleaded the Kings Letters Patents in discharge thereof and they were disallowed and tho' Attorneys have had their priviledge where they have been pressed Souldiers as in Venables Case 1 Cro. 8. Co. Entries 436. Springs Case and 1 Cro. 283. and where by Custom it came to an Attorneys turn to be Constable vid. Rolls 2. part 276. yet these are publick Services to which every one is bound but Priviledges may be allowed to exempt particular persons as the King may grant to one that he shall not be of
be good Now this being the way of Operation there is no reason why he may not Devise it to one after the death of two as well as after the death of one This would be so in Grants were it not that a certainty is required in them 1 Cro. 155. which is not required in Devises Termino Sanctae Trinitatis Anno 22 Car. II. In Banco Regis Freeman versus Barnes EError to Reverse a Judgment in an Ejectione firmae in the Common Pleas the Case upon a Special Verdict was thus The Marquess of Winchester being seised in Fee of the Lands in Question the 8 of July 9 Jac. Lets them to Sir An. Maynee for 100 years in Trust for the Marquess and his Heirs and to wait upon the Inheritance The Lessee enters afterwards the Marquess enters and Lets it to the Lord Darcy for 7 years and then Le ts to the Spanish Embassador for 7 years which Leases being expired Sir A.M. Demises to Freeman for a Term yet unexpired this Demise is not found to be upon the Land Afterwards the Lord Marquess Demises to Germin for 54 years upon Consideration of Money and Reserves a Rent and Covenants to Levy a Fine for the assurance of the Term which was afterwards done with Proclamation Germin enters and five years passed without any Claim made which Lease by mean Assignment came to Wicherly the Lessor of the Defendant who was Plaintiff in the Common Pleas and there had Iudgment The only Question upon this Special Verdict was Whether the Fine and Non Claim should barr the interest of Sir A. M. the Lessee in Trust This Case having béen argued thrée several times at the Bar The Court did this Term deliver their Opinons and did all agrée that the Iudgment ought to be affirmed It was considered quid operatur by the entry of the Marquess and they all except Moreton held that Prima facie he was Tenant at Will as Littleton Sect. 463. is where the Feoffor enters upon the Feoffée to his use but that the Entry of Germin his Lessée did ouft Freeman the Assignee of Sir A.M. which Assignment though not found to be upon the Land 2 Cro. 660. was good as the Chief Justice held because the two former Leases made by the Marquess were expired so he became Tenant at Will again but them he making of another Lease and the Lessee entring this must work an ouster and so the Fine would bar the Right For they agreed that a Fine regularly shall not work upon an Interest which is not divested though in some Cases it doth as upon the Interest of a Term according to Safins Case 5 Co. which yet cannot be divested but though the first Entry make but a Tenancy at Will yet taking upon him to make Leases that is enough to declare his intent to dispossess his Lessee in Trust Besides he reserves a Rent and Covenants for quiet Enjoyment and to make further assurance which could not stand with the Interest of the Lessee in Trust And for the Cases that were objected as Blunden and Baughs 1 Cro. 220. Where it is adjudged That the Entry of the Lessée for years of Tenant at Will should be no disseisin nolens volens to him that had the Freehold for there was no intention of the Parties to make it so and here the Law shall rather give the Election to him which had the Inheritance to make it a devësting than the Lessee or rather as the Chief Justice said the Law construes such Acts to amount to a divesting or not divesting as is most agreeable to the intention of the Parties and the right of the thing which distinguishes it also from the Case of Powsley and Blackman cited in Blunden and Baughs Case where the Mortgageor held at the Will of the Motrgageē and let for years the Lessee entred and held notwithstanding that the Mortgagee might Devest So Sir Tho. Fishes Case in Latches Rep. Where Tenant for years Le ts at Will and the Lessée makes a Lease for years and then the remainder is granted over This Grant is held to be good which whether by the remainder there be understood the interest of the Lessee or the Fee-simple yet it is no more than my Lord Nottinghams Case and not like the Case in Question For there the Lessee held the interest in his own Right and here but in Trust and for the Case in Noyes Reports 23. Twisden said he wholly rejected that Authority for it was but an Abridgment of Cases by Serjeant Size who when he was a Student borrowed Noyes Reports and abridged them for his own use The Case was this Tenant in Fée makes a Lease for years then Levies a Fine before Entry of the Lessee It is held there though five years pass the Lessée is not barred which is directly against the Resolution of Saffins Case and for Authority in this Case they relied upon the Case of Isham and Morris in 1 Cro. 781. Where upon Evidence it was resolved by the Justices That if the cesty quo Trust of a Lease for years Purchaseth the Inheritance and Occupies the Land and Levies a Fine that this after five years shall bar the Term which is not so strong as this Case because there were no Leases made and Entry thereupon and the Trust must pass inclusively by the Fine as is resolved in divers Books especially in this Case where it is to wait upon the Inheritance which though it arises but out of a Term yet it shall follow the Land and go to the Heir And for the inconveniences which were objected That if any Man purchased Land by Fine that he could not keep on Foot Mortgages and Leases which it is often convenient to do The Chief Justice declared his Opinion That in that Case the Fine should not bar there not being any intention of the Parties to that purpose And as to the other that where the Mortgageor continuing in Possession Levies a Fine this should bar the Mortgagee he denied that also and grounded himself upon Fermours Case in 3 Cro. And Twisden agreed Dighton's Case HE brought a Mandamus to be restored to his place of Town Clerk of Stratford super Avon The Corporation returned Letters Patents whereby they were empowered to chuse one into the Office of Town Clerk Durante bene placito and that they removed him from his Office Jones prayed that he might be restored notwithstanding because no Cause of his removal was returned nor that they had ever Summoned him whereas if they had he might peradventure have shewed such Reasons as would have moved them to have continued him and he cited Warrens Case 2 Cro. 540. who was restored to his Aldermanship where the Return was as here But the Court held that they could not in this Case although they confessed they knew the Merits of the Person help him And the Chief Justice said The Case of the Alderman differed for he is a part of the Corporation which
is where it is imposed for such things as are of common Right incident to its Jurisdiction as for Contempts or the like Yet where Custom only enables them to set a Fine it cannot be Distrained for without Custom also 11 Co. Godfrey's Case And to this Opinion did the Court incline Sed Adjornatur Anonymus TWo Actions of Account were removed into this Court by Habeas Corpus and Special Bail put in And it was moved that the Bail might be discharged and Common Bail filed because in an Account Special Bail is not to be put in But it was said the Plaintiff had declared in one in an Action upon the Case and so prayed that the Bail might stand quoad that But it was Ruled That the Bail should be discharged and if the Plaintiff would have Special Bail he must Arrest the Defendant again in an Action upon the Case Doctor Lee's Case DOctor Lee having Lands within the Level was made an Expenditor by the Commissioners of Sewers whereupon he prayed his Writ of Priviledge in this Court and it was granted For the Register is Vir militans Deo non implicetur saecularibus negotiis and the ancient Law is Quod Clerici non ponantur in Officia F.N.B. Clergy-men are not to serve in the Wars Jemey versus Norris ERror to Reverse a Judgment in an Assumpsit upon a Quantum meruit for divers things sold It was assigned for Error that the Declaration amongst the rest was for unum par Chirothecarum and did not express what sort of Gloves they were which are of much different prices according to the different Leather they are made of And Playter's Case 5 Co. was cited where Trespass for taking of his Fishes was held not good because not ascertainedb of what kind Sed non allocatur Another of the things declared for was una parcella fili which as it was said was utterly uncertain and that was held to be naught Tho' it was said an Action was brought for taking away unum cumulum Foeni Anglicè a Rick of Hay and not alledged how much it contained yet held good But in Webb and Washburn's Case an Action was brought for a pair of Hangings and it was Adjudged against the Plaintiff for the Incertainty Jones contra and cited a Case in this Court 24 Car. 1. Green and Green in Trover for six parcels of Lead and notwithstanding the Incertainty the Plaintiff had Judgment So in Trover for a Trunk de diversis Vestimentis and did not say what Garments and yet held good But admitting it should not be good in Trover yet it is well in this Action 'T is the Common course to declare sur Indebitatus pro mercimoniis and never express what they are And the Court were of Opinion that the Plaintiff was to have Judgment for it is an Action much of the same nature with an Indebitatus And Twisden said Where the Promise is to pay Quantum meruit he knew not why the Plaintiff might not declare upon an Indebitatus in a certain Sum and that he might prove the value upon the Evidence and if such a Case came to be tried before him he would have a Special Verdict found in it The Court said Such an uncertain Declaration would hardly be good in Trover or Replevin and held the Case of the six Parcels to be strange and for the Trunk that an Action lies for that the things contained in it were alledged but as matter of aggravation of Damages Vid. the Case of Taylour and Wells ante Trover de decem paribus velorum tegularum Anglicè Ten pair of Curtains and Vallance Wilson versus Armorer IN Debt against the Heir and Reins per discent pleaded the Case upon Special Verdict was thus The Ancestor made a Feoffment of a Mannor to divers uses excepting two Closes for the Life of the Feoffor only and whether those two Closes did discend was the Point referred to the Iudgment of the Court. And it was Adjudged That they did discend either for that the Exception was good tho' the latter part of the Sentence viz. for the Life of the Feoffor only was void and therefore to be rejected or if the whole Exception were void because one intire Sentence Yet they all agreed that there was no Vse limited of those two Closes which were intended to be excepted for the Vse was limited of the Mannor exceptis praeexceptis which excluded the two Acres For altho' there were not sufficient words to except them yet there was enough to declare the intention of the Feoffor to be so Anonymus AN Indictment for Erecting of a Cottage for Habitation contra Statut ' 31 Eliz. cap. 7. was quashed because it was not said that any had inhabited in it for 't is no Offence before per Rainsford Moreton caeteris absentibus Termino Sancti Hillarij Anno 22 23 Car. II. In Banco Regis Robson's Case A Prohibition was prayed to a Suit for Tythes by the Parson upon a Suggestion of a Modus paid to the Vicar and that the Vicaridge had time out of mind been Endowed Coleman moved for a Consultation because the Endowment of the Vicaridge was not proved by two Witnesses within six Months according to the Statute But it was denyed for that part of the Suggestion is not to be proved by Witnesses but only the payment of the Modus And it was said If the Suggestion consisted of two parts it was sufficient to produce one Witness to the one and another to the other Dacon's Case DAcon was presented in the Court Leet for refusing the Office of Constable and Fined It was moved to quash it because it expressed the Court to be held infra unum mensem Sancti Michael ' viz. 12 November and so the Day shewn above a Month after Michaelmas And it is necessary to set down the precise Day for it may else be upon a Sunday and yet within a Month after Michaelmas and for this cause the Court held that it must be quashed Error AN Outlawry was Reversed for that the Proclamations were Returned to be ad comitat ' meum tent ' apud such a place in Com' praedict ' and not said pro Comitatu For anciently one Sheriff had two or three Counties and might hold the Court in one County for another Calthorpe versus .... IN Debt for Rent the Plaintiff declared that he let the Defendant such Land anno 16 of the King quamdiu ambabus partibus placeret and that anno 16 the Defendant entred and occupied it pro uno anno tunc proximê sequent ' and because the Rent was behind pro praedict ' anno finit ' 18 he brought the Action Vpon which it was Demurred Because the Rent is demanded for the Year ending 18 and it is not shewn that the Defendant enjoyed the Land longer than anno 17. And in Debt for Rent upon a Lease at Will Occupation of the Tenant must be averred To which it was Answered That it is said
the Reservation to the Estate Whitlocks Case 8 Co. is very full to this where Tenant for Life the Remainder over so setled by Limitation of uses with power to the Tenant for Life to make Leases who made a Lease reserving Rent to him his Heirs and Assigns Resolved That he in the Remainder might have the Rent upon this Reservation So put the Case That Lessee for a 100 years should let for 50 reserving a Rent to him and his Heirs during the Term I conceive this would go to the Executor 'T is true if the Lessor reserves the Rent to himself 't is held it will neither go to the Heir or Executor But in 27 H. 8. 19. where the Reservation is to him and his Assigns It is said that it will go to the Heir And in the Case at Bar the words Executors and Administrators are void then t is as much as if reserved to him and his Assigns during the Term which are express words declaring the intent and must govern any implied construction which is the true and particular Reason in this Case The Old Books that have been cited have not the words during the Term. Vid. Lane 256. Richmond and Butchers Case indeed is judged contrary in point 3 Cro. 217. but that went upon a mistaken ground which was the Manuscript Report 12 E. 2. Whereas I suppose the Book intended was 12 E. 3. Fitz. Assize 86. for I have appointed the Manuscript of E. 2. which is in Lincolns Inn Library to be searched 6 Co. 62. and there is no such Case in that year of E. 2. The Case in the 12 E. 3. is A Man seized of two Acres let one reserving Rent to him and let the other reserving Rent to him and his Heirs and resolved that the first Reservation should determin with his Life for the Antithesis in the Reservation makes a strong Implication that he intended so In Wotton and Edwins Case 5 Jac. the words of Reservation were Yeilding and Paying to the Lessor and his Assigns And resolved that the Rent determined upon his Death In that case there wanted the effectual and operative Clause during the Term. The Case of Sury and Brown is the same with ours in the words of Reservation and the Assignee of the Reversion brought Debt Lane 255. and did not aver the Life of the Lessor And the Opinion of Jones Croke and Doderidge was for the Plaintiff Latches Rep. 99. The Law will not suffer and Construction to take away the energy of these words during the Term. If a Man reserves a Rent to him or his Heirs 't is void to the Heir 1 Inst 214. a. But in Mallorys Case 5 Co. where an Abbot reserved a Rent during the Term to him or his Successors it was resolved good to the Successor It is said in Brudnels Case 5 Co. that if a Lease be made for years if A. and B. so long live if one of them dies the Lease Determines because not said if either of them so long lives So it is in point of Grant But it is not so in point of Reservation for Pas 4 Jac. in the Common Pleas between Hill and Hill The Case was a Copyholder in Fee where the Custom was for a Widows Estate made a Lease by Licence reserving Rent to him and his Wife during their lives and did not say or either of them and to his Heirs It was resolved First That the Wife might have this Rent tho' not party to the Lease Secondly That tho' the Rent were reserved during their lives yet it should continue for the life of either of them for the Reversion if possible will attract the Rent to it as it were by a kind of Magnetism Hoskins versus Robbins A Replevin for six Sheep The Defendant makes Conusance c. for Damage Fesant The Plaintiff replied That the place where was a great Wast parcel of such a Mannor within which there were time out of mind Copyhold Tenants and that there was a Custom in the Mannor that the said Tenants should have the sole and several Pasture of the Wast as belonging to their Tenements and shews that the Tenants licenced him to put in his Beasts The Defendant Traverses the Custom and found for the Plaintiff The exceptions moved in Arrest of Judgment were now spoken to again First That the Custom to have the sole Pasture and thereby to exclude the Lord is not allowable It hath béen ever held That such a Prescription for Common is not good and why should the same thing in effect be gained by the change of the name That Prescription for Pasture and Prescription for Common is the same thing Vid. 3 Cro. Daniel v. Count de Hertford 542. and Rolls tit Prescription 267. It is held a Man may claim Common for half a year excluding the Lord and that one cannot prescribe to have it always so is not because of the Contradiction of the Term for if the sole Feeding be but for half a year 't is as improper to call it Common but the true reason seems to be because it should in a manner take away the whole profit of the Soil from the Lord and he should by such usage lose his greatest Evidence to prove his Title for it would appear that the Land was always fed by the Beasts of others and it would be very mischievous to Lords who live remote from their Wasts or that seldom put their Beasts there as many times they do not so that by the Tenants solely using to feed it they should lose their Improvements provided for the Lords by the Statute and so come at last for want of Evidence to lose the Soil it self Secondly This Custom is laid To have the sole Feeding belonging to their Tenements and 't is not said for Beasts levant and couchant or averred that the Beasts taken were so 15 E. 4. 32. and Rolls tit Common 398. Fitz. tit Prescription 51. A Man cannot prescribe to take Estovers as belonging to his House unless he Avers them to be spent in his House Noy 145. So 2 Cro. 256. tho' the Prescription was there to take omnes Spinas for it is necessary to apply it to something which agrees in nature to the thing Brownlow 35. Thirdly Here the Plaintiff justifies the putting in his Beasts by a Licence and doth not say it was by Deed whereas it could not be without Deed and so is the 2 Cro. 575. Fourthly Those defects are not aided by the Verdict for they are in the right and of substance But the Court were all of Opinion for the Plaintiff First They held the Prescription to be good and being laid as a Custom in the Mannor it was not needful to express the Copy-hold Estates it doth not take away all the profit of the Land from the Lord for his interest in the Trees Mines Bushes c. continues Co. Inst 122. a. is express that a Prescription may be for sola separalis pastura ' and if
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
of Kin was upon the Presumption That the Intestate intended to prefer him But now the Presumption is here taken away the Residuum being disposed of to another and to what purpose should the next of Kin have it when no benefit can accrue to him by it and 't is reasonable that he should have the management of the Estate who is to have what remains of it after the Debts and Legacies paid And the Averment That there is no Residuum is not material for being once out of the Statute upon Construction of the Words of the Will there is nothing ex post facto can bring it within it And there are certain Administrations which have been always Ruled to be out of the Statute as Administrations during Minority pendente lite which need not be granted to the next of Kin and granting it to the Husband comes not within the Words of the Statute But because in this case Administration had been granted so long before the Residuary Legatee came in and the Administrators by Decrees in Chancery had got in great part of the Estate and still there were Suits depending there for obtaining of the rest which were near their Effect which would be abated and set aside if the Administration were now Repealed The Court proposed an Accommodation as most useful to either of the Parties and advantagious to the Estate which was accepted The Civilians said That a Legatee that had got Administration tho' it were after Repealed upon a Citation should yet retain for his Legacy Otherwise upon an Appeal for there the Administration is avoided ab initio Vid. Blackman's Case 6 Co. Bedniff Ux ' versus Pople Ux ' A Prohibition was prayed to stay a Suit for Defamation in the Ecclesiastical Court for Words spoken to the Servant of the Plaintiff viz. Go tell thy Mistress Whore she is a Whore and I will prove it It was said they were common Words of Brabling and not importing any such Slander for which Suit could be there 3 Cro. 393. Dimmock versus Fawcet 3 Cro. 456. Pewe and his Wife versus Jeffryes Hale These cannot be said to be Words of Heat as if spoken when the Parties are Scolding together but were uttered deliberately in the Parties absence to her Servant Formerly they would Prohibit unless the Words implied some Act to have been done Vid. Eaton versus Ayloff 3 Cro. 110. But 't is Reason the Suit should proceed in this Case seeing it is for matter of Slander which is punished by publick Pennance Therefore Suit lies in London for calling Whore because by the Custom there Whores are to be Carted Wherefore the Court denied a Prohibition Road versus Wilmott IN False Imprisonment the Defendant Iustified by a Capias directed to him upon a Suit commenced against the Plaintiff in an Inferiour Court. To which the Plaintiff Demurred because it was not shewn that a Summons was issued first and Inferiour Courts can Award no Capias but upon a Summons first Returned To which it was Answered That this being admitted yet it is but an Erroneous Process in the Execution of which the Officer is excused who is not to be punished when the Court proceeds inverso ordine Hale said It was a great Abuse in those Courts their ordinary Practice being to grant a Capias without any Summons so that the Party is driven to Bail in every trivial Action and that tho' upon a Writ of Error this Matter is not assignable because a Fault in the Process is aided by Appearance c. yet False Imprisonment lies upon it and the Officer cannot Iustifie here as upon Process out of the Courts of Westminster For suppose an Attachment should go out of the County Court without a Plaint could he that executes it Iustifie Yet a Sheriff may Iustifie an Arrest upon a Capias out of the Common Pleas 10 Co. 76. 3 Cro. 446. tho' there were no Original But Ministers to the Courts below must see that things be duly done Wherefore the Plaintiff must have Judgment Monk's Case A Debt was recovered against him in this Court and the Money levied by the Sheriff which he did not deliver but was ordered to bring it into Court until a difference that arose about it was determined Monk being indebted to the King a Writ was issued out to enquire what Goods and Chattels he had The Kings Attorney moved that they might have leave to find this Money the Court conceived that the Money being but as a Depositum there they might find it and that the Court did not protect it from the Inquisition as when Goods are under an Attachment they cannot be distrained but they would not make any direction for the finding of it Blackamore versus Mercer IN Judgment against an Executor a Fieri facias issued out to the Sheriff with a Scire fieri inquiry and a Devastavit was found according to the common course the return whereof was quod diversa bona quae fuerunt restatoris c. habuit quae elongavit in usum suum proprium convertit It was objected against this Return That it was not said Devastavit for in some Cases an Executor may justly convert the Goods to his own use Hale said antiently when the Sheriff returned a Devastavit which was not found by any Inquisition and to which there was no answer it was necessary to insert the word Devastavit But otherwise in a return upon this Special Writ for if the case be that he hath not wasted the Goods but only eloigned then so as the Sheriff cannot come at them the Executor is chargeable upon this Writ de bonis propriis and this Return answers the Writ Perrot versus Bridges IN Trespass quare clausum fregit and threw down his Fences The Defendant pleaded Not guilty to all but the breaking of the Fences and for that he justifies for that he was possessed of certain Corn in the place where as of his proper Goods and made a breach in the Fence as was necessary for the carrying of it away The Plaintiff Demurrs Specially because he did not shew by what Title he was possessed of the Corn. And the Court were of Opinion that for that cause the Plea was insufficient for if a Man enters upon anothers Land and sows it 't is his Corn while he that hath right re-enters so if Tenant at Will sows the Ground and then determins his own Will he cannot break the Hedges to carry the Corn away And Twisden said if the Sheriff sells Corn growing by a Fieri facias the Vendee cannot justifie an entry upon the Land to Reap it until such time as the Corn is Ripe Anonymus IF an Administrator brings an Action the declaring hic in Curia prolat ' of the Letters of Administration is but matter of Form tho' it hath béen held otherwise For Hale said 't is not part of the Declaration as a Specialty is upon which Debt Covenant c. is brought but
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
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
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-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
excused yet 't is merely void as to the Party Et Ad jornatur Norton versus Harvey THe Case was an Executor being possessed of a Term let part of it reserving a Rent and died And the Question was whether his Executor should have the Rent or the Administrator de bonis non It was argued for the Executor that this Rent is meerly due by the Contract and not incident to the Reversion and the Administrator is in Paramount it being now as if the Testator had died Intestate and therefore before the Statute of this King such Administrators could not have had a Scire facias upon a Judgment obtained by the Executor tho' in the Case of Cleve and Vere 3 Cro. 450 457. 't is held that he may have a Liberate where the Executor had proceeded in the Execution of a Statute so far as an Extent for there the thing is executed and not meerly Executory as a Judgment If a Man that hath a Term in the right of his Wife le ts part of it reserving a Rent the Wife surviving shall not not have the Rent On the other side it was said that this case differed from that because the Reservation here is by him that had the whole Right executed in him Another objection against the Action was that here in the Declaration being in Covenant for Non payment of Rent there is not any demand alledged But that was answered because the Covenant was to pay such a Sum for the Rent expresly but if the Condition of a Bond be for performance of Covenants expressed in such a Lease one of which is for payment of Rent in that case the Bond will not be forfeit without a demand and of that Opinion were the Court and that the Executor should have the Rent but when recovered Hale said it should be Assets in his Hands And accordingly Iudgment was given for the Plaintiff Termino Sanctae Trinitatis Anno 26 Car. II. In Banco Regis Silly versus Silly DOwer of 300 Acres of Land 200 Acres of Pasture 100 Acres Meadow The Tenant pleaded Non Tenure The Jury found him Tenant as to 320 Acres of Land and as to the rest that he was not Tenant And the Iudgment was that the Demandant should recover the 320 Acres Error was assigned in this Court that the Verdict and Judgment were for more Acres of Land than were demanded But on the other side it was said Land was a general word and might include Meadow and Pasture Curia In a Grant Land will extend to Meadow Pasture c. but in Pleading it signifies Arable only and here in regard they are distinguished in the Count the Verdict and Judgment must be reversed for the whole Tho' Hale said antiently such Iudgment would have been reversed but for the surplusage Vid Post Batmore Vxor versus Graves TRover for a 100 Loads of Wood upon a Special Verdict the Case was this Copyhold Land was surrendred to the use of J. S. for years Remainder to the Brother of the Plaintiff's Wife who died before the Term expired and so was not admitted any otherwise than by the admission of the Tenant for years And it was resolved First That the admittance of him that had the Estate for years was an admittance for him in the Remainder 4 Co. 23. a. 3 Cro. 504. Fine sur Grant and render to A. for Life Remainder to B. Execution sued by A. serves for B. So an Attornment to Tenant for Life serves for him in Remainder and this brings no prejuduce to the Lord for a Fine is not due until after admittance and the Lord may Assess one Fine for the particular Estate and another Fine for the Remainder But Wild said he need not pay it until his Estate comes in Possession after a Surrender the Estate remains in the Surrender before admittance of the Cestuy que use yet where Borough English Land was Surrendred to the use of J. S. and his Heirs and he died before admittance It was held that the younger Son should have it Secondly It was resolved that the Possession of the Tenant for years was so the Possession of him in Remainder as to make a Possessio Fratris But then it was moved that the Conversion was laid after the Marriage and so the Feme ought not to have joyned with her Husband in the Action But the Court held that in regard the Trover was laid to be before the Marriage which was the inception of the cause of Action the Wife might be joyned as if one has the Custody of a Womans Goods and afterward Marries her she may joyn in Detinue with her Husband for in case of Bailment the Proprietor is to some purposes in Possession and to some out of Possession Hale said in this case the Husband might bring the Action alone or joyntly with his Wife And so Iudgment was given for the Plaintiff Anonymus IN Debt upon a Bond the Condition was to save the Obligee harmless from another Bond. The Defendant pleaded Non damnificatus The Plaintiff replies that the Money was not paid at the day and he devenit onerabilis and could not attend his business for fear of an Arrest The Defendant rejoyns that he tendred the Money at the day absque hoc that the Plaintiff devenit onerabilis to which it was Demurred and the Iudgment was given for the Plaintiff for the Money not being paid at the day the Counter Bond is forfeited Vid. 1 Cro. 672. 5 Co. and the Traverse in this case is naught The Mayor and Commonalty of London versus Dupester IN Debt for a Duty accruing to the City for Timber imported called Scavage The Declaration was that they were and had been a Corporation time out of mind and their Customs were confirmed by Act of Parliament Temps R. 2. c. The Defendant tendred his Law and Co. Entries 118. was cited where in Debt for an Amerciament in a Court Baron tho' the imposing of it was grounded upon a Prescription yet Wager of Law was admitted But notwithstanding in this case the Court overruled the Wager of Law for here the Duty it self is by Prescription and that confirmed by Act of Parlimant Debt for a Duty growing by a By-Law if the By-Law be Authorised by Letters Patents no Wager of Law lies So in Debt for Toll granted by Letters Patents 20 H. 7. Termino Sancti Michaelis Anno 26 Car. II. In Banco Regis Silly versus Silly THe Case was moved again And the Court said that the Demandant might have taken Judgment for the 300 Acres only habito nullo respectu to the rest and released all the Damages But this was not proper for an Amendment the Mistake being in the Verdict but if it could have been amended in the Common Bench the Court might here have made such Amendment Ante. Burfoot versus Peal A Scire facias was brought against the Bail who pleaded that the Principal paid the Debt ante diem impetrationis Brevis
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
taken strictly and here upon the first Fine the Earl of Leicester had no Estate left in him Mich. 6 Car. 1. in Communi Banco the Case of Ingram and Parker which tho' it may not be a clear Authority for me yet I am sure it does not make against me The Case was Catesby levied a Fine to the use of himself in Tail with Remainders over reserving a Power to himself and his Son to Revoke by Deed c. as in our Case and his Son after his decease by Deed intended to be Enrolled conveyed to one and his Heirs and after levied a Fine and it was held no Revocation First Because he having an Estate Tail in him the Deed might operate upon his Interest Secondly Because it was but an inchoation of a Conveyance and not perfected and they held it no Revocation and that the Fine levied after tho' intended to be to the Vses of the Deed yet should extinguish the Power Hale Chief Justice Vpon the close and nice putting of the Case this may seem to be no Revocation for 't is clear that neither the Deed nor Fine by it self can revoke but quae non valent singula juncta prosunt The Case of Kibbett and Lee in Hob. 312. treads close upon this Case where the Power was to Revoke by Writing under his Hand and Seal and delivered in the presence of three Witnesses and that then and from thenceforth the Uses should cease It was there Resolved that a Devise of the Lands by Will with all the Circumstances limited in the Power should Revoke yet the Delivery was one of the Circumstances and the Uses were to cease then and from thenceforth Whereas a Will which could have not effect while his Death did strongly import that the meaning was to do it by Deed and yet there the Will alone could be no Revocation for clearly he might have made another Will after and so required other Matter viz. his Death to compleat it And in that Case there is another put That if a Deed of Revocation had been made and the party had declared it should not take place until 100 l paid there the operation of it would have been in suspence until the 100 l paid and then it would have been sufficient yet there it had been done by several Acts and of several Natures the Intention in things of this nature mainly governs the Construction In Terries Case it was Ruled That if A. makes a Lease for years to B. and then Levies a Fine to him to the end that he might be Tenant to the Praecipe for the suffering of a Recovery that after the Recovery suffered his Lease should revive 'T is true in the Case at Bar if the Fine had been levied first and then the Deed of Uses made afterwards the Power had been extinguished by the Fine and so no Revocation of that which had no being could have been by the Deed. Twisden What if before the Fine levied the Intent had been declared to that purpose Hale I doubt whether that would have helped it I cannot submit to the Opinion in Parker and Ingrams Case cited viz. That the Deed not being Enrolled should make no Revocation For in case of a Power to make Leases for life it has been always held by the best Advice that the better way is to do it by Deed without Livery tho' Livery by the Common Law is incident to a Lease for life and so Adjudged in Rogers's Case for Lands in Blandford forum in Moor's Rep. where Tenant for life hath power to make Leases for life and makes a Lease by Livery 't is there held a Forfeiture tho' I conceived not because by the Deed the Lease takes effect and so the Livery comes too late Therefore the omission of Enrolling the Deed in that case does not seem to be material but if that Opinion be to be maintained it is because the party had such an Interest upon which the Deed might enure without Execution of his Power and so rather construed to work upon his Interest But that Reason does not satisfie because such an Estate as was intended to be conveyed could not be derived out of his Interest therefore it should take effect by his Power according to Clere's Case in the 6 Co. So by the whole Court here the Deed and Fine taken together were Resolved to be a good Execution of the Power and Judgment given accordingly Richardson versus Disborow A Prohibition was prayed to the Ecclesiastical Court where the Suit was for a Legacy and the Defendant pleaded That there was nothing remaining in his hands to pay it and that he had fully Administred And producing but one Witness to prove it Sentence was given against him and after he Appealed and because their Court gave no regard to a single Testimony he prays a Prohibition But it was urged on the other Side That it being a Matter within their Cognizance they might follow the Course of their own Law And tho' there are diversities of Opinions in the Books about this Matter yet since 8 Car. 1. Prohibitions have been been denied upon such a Surmize Hale Where the Matter to be proved which falls in incidently in a Cause before them is Temporal they ought not to deny such Proof as our Law allows and it would be a great Mischief to Executors if they should be forced to take two Witnesses for the payment of every petit Sum And if they should after their Death there would be the same Inconvenience In Yelv. 92. a Prohibition was granted upon the not admitting of One Witness to prove the Revocation of a Will Which is a stronger Case because that entirely is of Ecclesiastical Cognizance Wherefore let there go a Prohibition and let the party if he please Demur upon the Declaration upon the Attachment Hob. 188. 1 Cro. 88. Popham 59. Latch 117. Pigot versus Bridge IN Debt upon a Bond Conditioned for performance of Covenants and the Breach assigned was in the not quietly enjoying the Land demised unto him The Defendant pleads that the Lease was made to hold from Michaelmas 1661 to Michaelmas 1668 and that paying so much Rent Half yearly he was to Enjoy quietly and shews that he did not pay the last half years Rent ending at Michaelmas 1668. To which the Plaintiff Demurred supposing that the words being to Michaelmas 1668. there was not an entire Half year the Day being to be excluded and that it was so held in the Case of Umble and Fisher in the 1 Cro. 702. Cur ' contra 'T is true in pleading usque tale Festum will exclude that Day but in case of a Reservation the Construction is to be governed by the Intent Anonymus NOte per Hale Debt doth not lye against the Executor of an Executor upon a Surmize of a Devastavit by the first Executor For First 'T is a Personal Tort for which his Executor cannot be charged Secondly 'T is such an Action of Debt as would
have admitted Wager of Law and therefore lies not against the Executor It was difficultly brought in that Debt should lye against the Executor upon a Surmize of a Devastavit by himself But that Point is now setled but no Reason to extend it further And he cited a Case where Debt was brought against A. Executor of B. Executor of C. who pleaded that he had not of the Goods of C. in his hands To which the Plaintiff Replied That B. had Wasted the Goods of C. to the value of the Debt demanded Vpon which Issue was joyned and found for the Plaintiff and he had Judgment to recover de bonis B. in the hands of A. But that Judgment was Reversed Anonymus IF A. Engages that B. shall pay for certain Goods that B. buys of C. this is good to charge him upon a Collateral Promise but not upon an Indebitat ' Assumpsit for it doth not create a Debt Anonymus IN an Information for a Riot it was doubted by the Court whether it were Local being a Criminal Cause And it was observed that divers Statutes in Queen Elizabeth and King James's time provided that Prosecutions upon Penal Laws should be in their proper Counties Which was an Argument that at the Common Law they might have been elsewhere Taylor 's Case AN Information Exhibited against him in the Crown Office for uttering of divers Blasphemous Expressions horrible to hear viz. That Jesus Christ was a Bastard a Whoremaster Religion was a Cheat and that he neither feared God the Devil or Man Being upon this Trial he acknowledged the speaking of the Words except the word Bastard and for the rest he pretended to mean them in another Sense than they ordinarily hear viz. Whoremaster i. e. That Christ was Master of the Whore of Babylon and such kind of Evasions for the rest But all the Words being proved by several Witnesses he was found Guilty And Hale said That such kind of wicked Blasphemous words were not only an Offence to God and Religion but a Crime against the Laws State and Government and therefore punishable able in this Court. For to say Religion is a Cheat is to dissolve all those Obligations whereby Civil Societies are preserved and that Christianity is parcel of the Laws of England and therefore to reproach the Christian Religion is to speak in Subversion of the Law Wherefore they gave Judgment upon him viz. To stand in the Pillory in Three several places and to pay One thousand Marks Fine and to find Sureties for his Good Behaviour during Life Walker versus Wakeman THe Case was An Estate which consisted of Land a Rectory c. was conveyed to the use of one for Life c. with a Power to Lett the Premisses or any part of them so as 50 l Rent was reserved for every Acre of Land The Tenant for Life Demised the Rectory reserving a Rent which Rectory consisted of Tythes only and whether this was within the Power was the Question Serjeant Pemberton Argued That this Lease is not warranted by the Power for a Construction is to be made upon the whole Clause and the latter Words that appoint the Reservation of the Rent shall explain the former and restrain the general Word Premisses to Land only for if it shall be extended further the Settlement which was in Consideration of a Marriage Portion is of no effect for the Rectory As in case it should de Demised reserving no Rent which it might be if not restrained to the latter words and they applied only to the Land But it was Resolved by the Court that the Lease of the Rectory was good for the last Clause being Affirmative shall not restrain the Generality of the former And this Resolution was chiefly grounded upon Cumberford's Case in the 2 Rolls 263. where a Conveyance was made to Vses of divers Mannors and Lands with a Power to the Cestuy que use for Life to make Leases of the Premisses or any part of them so that such Rent or more were reserved upon every Lease which was reserved before within the space of Two years and a Lease was made of part of the Lands which had not been Demised within Two years before And Resolved it was a good Lease and that thereupon any Rent might be reserved because the Power was General To Lease all and the restrictive Clause should only be applied to such Lands as had been demised within Two years before Termino Sanctae Trinitatis Anno 28 Car. II. In Banco Regis MEmorandum The last Term Sir Richard Rainsford was made Chief Justice Hale Chief Justice quitting it for infirmity of Body and Sir Thomas Jones was made one of the Justices of the Court of Kings Bench. Anonymus IN an Action upon the Case brought against the Defendant for that he did Ride an Horse into a place called Lincolns in Fields a place much frequented by the Kings Subjects and unapt for such purposes for the breaking and taming of him and that the Horse was so unruly that he broke from the Defendant and ran over the Plaintiff and grievously hurt him to his damage c. Vpon Not guilty pleaded and a Verdict for the Plaintiff It was moved by Sympson in Arrest of Judgment that here is no cause of Action for it appears by the Declaration that the mischief which happened was against the Defendants Will and so Damnum absque injuria and then not shewn what right the Kings Subjects had to walk there and if a man diggs a Pit in a Common into which one that has no right to come there falls in no Action lies in such Case Curia contra It was the Defendants fault to bring a Wild Horse into such a place where mischief might probably be done by reason of the Concourse of People Lately in this Court an Action was brought against a Butcher who had made an Ox run from his Stall and gored the Plaintiff and this was alledged in the Declaration to be in default of penning of him Wild said if a Man hath an unruly Horse in his Stable and leaves open the Stable Door whereby the Horse goes forth and does mischief an Action lies against the Master Twisden If one hath kept a tame Fox which getts loose and grows wild he that kept him before shall not answer for the damage the Fox doth after he hath lost him and he hath resumed his wild nature Vid. Hobarts Reports 134. The Case of Weaver and Ward Anonymus IN Trespass in an inferiour Court if the Defendant plead son frank Tenement to oust the Court of Jurisdiction It was said by Wild that they may enforce the Defendant to swear his Plea as in case of Foreign Plea negat Twisden and as in this Court where a Local justification in Trespass c. is pleaded the Defendant must swear it But the Court held no Indictment will lie for Perjury in such Oath no more than upon a Wager of Law Anonymus IN Trover the Hab. corpora
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
Trover inter al' de uno Instrumento ferreo Anglicè an Iron Range After Verdict for the Plaintiff it was moved in Arrest of Judgment that Instrumentum ferreum was too uncertain and that a Range was the same with a Grate for which Crates was a proper Latin word Sed non allocatur For Crates is such a Grate as is before a Prison But a Fire Range was not in use in the Romans time and therefore Instrumentum ferreum is well enough with the Anglicè Twisden said Trover de septem libris has been held good without saying what they were Blackman's Case IT was assigned for Error that the Venire was to Summon probos legales homines instead of liberos and so a material Variance and alledged that many Judgments had been Reversed for it But the Court here being informed that the Presidents were generally probos instead of liberos would not allow the Exception The King versus Armstrong Harrison al' c. THey and others were Indicted for Conspiring to Charge one with the Keeping of a Bastard Child and thereby also to bring him to Disgrace After Verdict for the King it was moved in Arrest of Judgment that the bare Conspiring without Executing of it by some Overt act was not subject to Indictment according to the Poulterers Case in the 9 Co. And it doth not appear that he was actually Charged with the Keeping of a Child nay 't is alledged 't was but a pretended Child neither was he by Warrant brought before a Justice of Peace upon such an account but only that they went and affirmed it to the party himself intending to obtain Money from him that it might be no further disclosed Sed non allocatur For there was as much Overt act as the nature and design of this Conspiracy did admit in regard there was no Child really but only a Contrivance to Defame the Person and Cheat him of his Money which was a Crime of a very heinous nature Then it was alledged That this was tryed at the Old-Baily commonly called Justice-Hall in London and the Jury came de Warda de Faringdon extra London which appeared to be out of the Iurisdiction Sed non allocatur For the Name of the Ward is Faringdon extra to distinguish it from Faringdon infra but both are known to be in London Whereupon Judgment was Entred up against them and Armstrong which appeared to be the principal Offender was Fined 50 l and the other 30 l Burrough's Case HE and others were Indicted for that they being Church-wardens Overseers of the Poor and a Constable did contemptuously and voluntarily neglect to Execute diversa Praecepta Watranta directed to them by the Bayliffs of Ipswich being Justices of the Peace under their Hands and Seals c. It was moved to quash it for that the nature and tenour of the Warrants were not expressed in the Indictment For unless the parties know particularly what they are charged with they cannot tell how to make their Defence And for that Reason it was quashed by the Court. Note The Court never gives Costs for not Executing of a Writ of Enquiry of Damages tho' Notice be given Anonymus AN Indictment of Forcible Entry into certain Lands in the possession of J.S. was quashed for not shewing what Estate J.S. had and tho' the word Disseisivit were in the Court held that tho' that might be taken to imply a Freehold yet it was not sufficient Vid. Mo. 481. And another was quashed because it was said possessed pro termino But the Court held that if it had been pro termino annorum tho' not said for how many years it had been well Note A Bayliff caught one by the Hand whom he had a Warrant to Arrest as he held it out of a Window And the Court said that this was such a Taking of him that the Bayliff might justifie the breaking open of the House to Carry him away Kent versus Harpool AN Ejectment The Case came hither by a Writ of Error out of the Kings-Bench in Ireland and divers Points were in it which concerned the Act for Settlement of Lands in Ireland But the Case was as to the great Point at Common Law to this effect Father Tenant for Life Remainder to the Son for Life Remainder to first Son of that Son who was not born Remainder to the Heirs of the Body of the Father the Father died before the first Son was born and Whether the Descent of the Entail to the Son did prevent the Contingent Remainder was the Question It was Argued that it did not because the Inheritance came to the Son by Act in Law And the Opinion in Cordal's Case in the 1 Cro. 315. was cited the great Reason in Chudley's Case and other Cases wherein Contingent Remainders have been held to be destroyed was for the preventing of Perpetuities which would have been let in if Contingent Remainders had been preserved whatever Act had been done by those which had the Actual Estate But there is no such necessity of making the life Construction upon Acts in Law If Lessee for years makes the Lessor Executor the Term is not drowned But if the Executor that hath a Lease purchases the Inheritance the Term is gone because it is his own act but in the other Case the Law shall not work that which must be construed a Devastavit In Lewis Bowles's Case in the 11 Co. and Co. Litt. where there is an Estate for Life Remainder to the first Son Remainder in Fee to the Tenant for Life the Estates at first close and open again upon the Birth of the first Son which should take the Remainder And so it may be here But the Court seemed to be of Opinion that the Contingent Remainder was destroyed by the Descent of the Estate Tail And Rainsford Chief Justice relyed upon Wood and Ingersol's Case in the 2 Cro. 260. where a Devise was to the first Son for Life Remainder to the Son which should survive and there three Judges against one held that the descent of the Fee upon the first Son prevented the Contingent Remainder to the Survivor Et Adjornatur Note In Lewis Bowle's Case the Estates were united at the first upon making of the Conveyance Smith versus Tracy IN a Prohibition the Case was One died Intestate and whether his Brother of the Half-blood should come in for Distribution upon the new Statute of 22 23 Car. 2. cap. 10. was the Question It was Argued that the Half blood should have no share for the Words are The next of Kindred to the Dead person in equal Degree which the Half-blood is not The Words likewise are Those which legally represent their Stocks and that must be intended in an Act of Parliament such as the Common Law makes to be Representatives and not the Civil Law For then it would be that the Bastard eigne should come in for Distribution For their Rule is that subsequens matrimonium facit
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
Indicted of Perjury in a voluntary and Extra judicial Oath and cited a late Case where one had stole away a mans Daughter and went before a Justice of the Peace and Swore that he had the Fathers Consent and this in order to get a Licence to marry her and he was Indicted and Convicted thereupon And all the Court said that it was not the course to quash Indictments of Perjury Nusance or the like but to put the party to plead to them Termino Paschae Anno 36 Car. II. In Banco Regis Duncomb versus Walter IN an Indebitat ' Assumpsit by an Assignee of Commissioners upon the Statute of Bankrupts upon Non assumpsit a Special Verdict was found upon which the Case appeared to be thus One Staly was Arrested by an Executor of his Creditor 6 Sept which was before Probat of the Will and within two or three days after he paid 1000 l to the Defendant to whom he stood Indebted in such Sum and after the 18th of September he yielded himself to Prison upon the said Arrest The Question was Whether the Defendant should be obliged to Refund this Money which was paid unto him as aforesaid First Whether the Arrest before the Probat was a good Arrest It was said If an Executor hath a Reversion in a Term upon which a Rent is reserved and Distrains c. he may avow for the Rent before the Probat Vid. 1 Roll. 917. tit Executors where an Executor brings an Action before Probat yet if he shews the Probat upon the Declaration 't is well enough Secondly Whether when he yields himself to Prison it shall not relate to the first Arrest to make him a Bankrupt from that time This depends upon the Statute of 21 Jac. cap. 19. where it is said that in the Cases of Arrest and lying in Prison he shall be adjudged a Bankrupt from the time of his first Arrest Object This Relation doth not prejudice Strangers Answ Dame Hales's Case Pl. Com. 293. If one giveth another a mortal Wound and then sells his Land and the person dies there shall be such Relation as to make the Land forfeit from the first Stroke Note This Case came by Writ of Error out of the Common Pleas where Judgment was given for Walter and the said Judgment was affirmed in this Court principally upon the point of Relation For the Court said that it would be a great mischief if it should relate to the first Arrest as to the payment of Money to Strangers Termino Sancti Hillarij Anno 1 2 Jac. II. In Banco Regis Herring versus Brown Quod vid. ante Michaelmas 35 Car. 2. THe Case upon a Special Verdict was to this effect That J. S. being Seised in Fee had made a Conveyance of his Estate to the use of himself for Life with divers Remainders over to other persons with a power of Revocation by Writing under his Hand and Seal c. Afterwards the said J. S. having a purpose to Revoke the said Uses and make a new Settlement of his Estate he levied a Fine and after the Fine he made a Deed wherein he expressed that he Revoked the former Uses and so proceeded to a new Limitation by that Deed and declared that the Fine by him limited should be to the Vses of the said Deed. The sole Question was Whether the Fine had extinguished his Power and by consequence forfeited his Estate or Whether the Fine and Deed should be taken as one Conveyance and so be a good execution of his Power and new limitation of the Uses And after many solemn Arguments it was Resolved by the Chief Justice Herbert Holloway and Wright that the Fine was an extinguishment of his Power and that the Deed came too late contrary to the Opinion of Justice Withens Vido ante ADDENDA Termino Sanctae Trinitatis Anno 26 Car. II. In Banco Regis Pibus versus Mitford Intratur Trin. 20 Car. 2. Rot. 703. IN an Ejectment the Jury find a Special Verdict to this effect viz. That Michael Mitford was seiz'd of the Lands in question and of divers other Lands in Fee and having Issue Robert by one Venter and Ralph by Jane his second Wife did 23 Jan. 21 Jac. by Indenture Covenant to stand seized of some of the Lands to the use of himself for Life Remainder to Trustees for years for several purposes Remainder to Jane his second Wife for Life Remainder to Ralph and the Heirs Male of his Body And as to the Lands in question he Covenants to stand seiz'd To the use of his Heirs Male begotten or to be begotten on the Body of his second Wife and died And then the Jury made this Special Conclusion If any Use did arise by the Deed to Ralph then they find for the Defendant and if not they find for the Plaintiff This Case was Argued several times at the Bar and now the Judges delivered their Opinions seriatim Wild Justice for the Defendant We are to give our Opinions upon a Deed of Uses made for the Provision of younger Children not otherwise provided for But if the Case were not so It is a safe way when the Words are ambiguous to follow the Intention of the party appearing in the Deed. I shall not maintain that Ralph is a Purchaser and so make this an Executory Use I agree a man cannot either by Conveyance at Common Law by Limitation of Uses or Devise make his right Heir a Purchaser I agree also Griswold's Case in Dyer 156. and if this Case had operated by Transmutation of Possession this Limitation to the Heirs of the Body of the Covenantor had been void and no Use should have risen But here in the Case of a Covenant to stand seiz'd nothing moves out of the Covenantor he retains the Land and directs the Use and keeps sufficient in him to maintain this Use There 's a great difference between a Conveyance at the Common Law and a Conveyance to Uses At the Common Law the Heir cannot take where the Ancestor could not but otherwise it is in case of Uses 2 Rolls 794. and so is Wood's Case 1 Co. 99. a. cited in Shelly's Case This I say to shew that the Intent of the Parties shall be the Guide and that there is a difference between Conveyances at the Common Law and Conveyances to Uses Horwood's Opinion in Hussey's Case 37 H. 8. comes to our Case There 's no great difference between a Covenant to stand seiz'd and a Feoffment to Uses I will not Argue to prove that this Deed shall enure as an Executory Use because 't is against a Rule in Law taken by my Lord Hobart and so Agreed before his time But here Ralph is Tenant in Tail Michael his Father being Tenant for Life Remainder to his Heirs Male begotten on the Body of Jane his second Wife For the Law to preserve this Limitation to the use of his Heirs Male c. will by Implication create an Estate for Life in Michael
because the Intent of the parties appears that it should be so There 's no great difference between the Construction of a Deed of Uses and a Will 13 H. 7. The Wife takes an Estate for Life by Implication where the Land is devised to the eldest Son after her decease Manning and Andrew's Case in 1 Leon. 259. The Reason of these Cases is the fulfilling of the Intention of the Parties and here this Limitation cannot be made good by way of a Future Use nor by any other way but only by creating of an Estate for Life in Michael the Father by Implication and this is according to the nature of a Covenant to stand seiz'd For the Use is not to pass out of the Covenantor till the proper time for the subsequent Estate to commence As to my Lord Paget's Case 't was his Intention to have the Use during his Life And my Lord Coke was certainly very well satisfied with the Resolution in Fenwick and Mitford's Case when he wrote his Institutes for he Argued before to the contrary as appears by the Report of that Case in Moor. Rainsford Justice to the same Intent If no Use rises immediately to Ralph yet if a Use rises by the Deed so that he has the Land any way be it by discent from his Father 't is within the Conclusion of the Verdict By the scope of the Conveyance it appears that it was intended that Robert should never have his Land till Twelve hundred Pound was paid for the provision of younger Children so that if Robert should have it it would be against the Intention of Michael There are two Reasons and Grounds in Law by which we may make this Deed agree with the Intention of the Parties First Because it is in the Case of an Estate Tail ubi voluntas donatoris observari debet Secondly It is in a Conveyance setled by way of Use and in Cases of Uses the Intention of the parties ought to be pursued And this is in Case of a Use that rises by Covenant to stand seiz'd which makes the Case the stronger And I conceive this is not a void Limitation but such an one as gives an Estate to Ralph In speaking to which I shall observe what my Lord Coke in the 1 Inst 23. says viz. That so much of the Use as the Owner of the Land does not dispose of remains in him c. and so in Cownden and Clark's Case in Hob. 30. And this is the Reason of Bingham's Case 1 Co. 91. Now here when Michael Covenanted to stand seiz'd to the Vse of his Heirs Male on the Body of his second Wife begotten I conceive he shall retain the Land as parcel of his ancient Vse during his Life for non est Haeres viventis according to Archer's Case 1 Co. And that Michael shall retain an Estate for Life is prov'd by my Lord Paget's Case 1 Co. 154. Dyer 310. N. 79. 1 Co. Chudleigh's Case 129. 2 Rolls 788. 21 H. 7. 18. From my Lord Paget's Case upon which I shall rely and the other Cases it appears that were there 's a Limitation to one after the death of another the Covenantor shall retain the Land during the Life of the other and here in our Case this Estate not taking effect till after the Death of Michael he shall retain the Estate and shall be Tenant for Life of the old Vse Now the Question is Whether Ralph shall take by Discent or Purchase And I conceive this Estate for Life with the Remainder in Tail makes but one Estate Tail in Michael and that he becomes Tenant in Tail and so Ralph shall take as Heir in Tail I shall not trouble my self whether Ralph may take here as a Purchaser because in Cownden and Clark's Case in Hob. it is Resolved that he cannot take as Heir Male of the Body by Purchase because all the words are not verified in him for he is not Heir I shall rely upon the First Point That here is an Estate Tail executed in Michael For when an Estate for Life is in the Auncestor by way of Retainer and an Estate is afterwards limited to his Heirs this is within the Rule put in Shelley's Case in 1 Co. where the Auncestor takes an Estate of Freehold and by the same Conveyance an Estate is limited to his Heirs Mediately or Immediately they are Words of Limitation and not of Purchase because the Heir is part of his Father Our Case is stronger that Fenwick and Mitfords Case It s true the same Reason for that Case is not given by Anderson and More which is given by my Lord Coke More 437. There the Reason is because the Limitation to the right Heirs is merely void here Michael hath an Estate in Tail of the ancient Use therefore 't is not necessary for the Law to create an Estate for Life Obj. That this cannot be an Estate Tail executed in Michael because the Estate for Life is not by the same Limitation but by Construction of Law But my Lord Coke says in Fenwick and Mitfords Case 1 Inst 22. b. that there is no difference where the Estate is created by Law and where by the Deed. 1 Anderson 259. and the Law retaining an Estate in Michael for Life our Case is the same as if the Estate had been limited to him with the Remainder to his Heirs Male begotten on his second Wife which would be an Estate Tail executed in Michael and would have discended to Ralph Twisden Justice for the Plaintiff I hold there 's no Use raised to Ralph by this Deed. We are here in the construction of a Deed and not of a Will It may be an Estate should be raised in such a case by a Will altho' my Lord Hobart is of a contrary Opinion I agree the Case of Hodgkinson and Wood Cro. Car. 23. but it cannot be argued from thence that it shall be so in a Deed for a Devise is not to take effect till after the Death of the Devisor and then 't is apparent that he is Heir Male of his Body It hath been agreed that Heirs Male of the Body are words of purchase It is plain that Ralph cannot take as Special Heir unless by Purchase and that he cannot do because he who shall take by virtue of such a Limitation ought to be Heir as well as Issue Male and Ralph here cannot take by vertue of the Statute de Donis Conditionalibis because none can take as Special Heir but where his Ancestor took before and therefore this Limitation is utterly void To make this Limitation good divers ways have been urged First That this Deed has an operation by way of returning of the Use and it has been compared to my Lord Pagets Case which differs from it here cannot be any part of the old Use in Michael for if he hath an Estate for Life it ought to be a new Use It cannot be a returning Use for the Limitation to the Heirs Male of the Body
of Jane the second Wife is void and it cannot be returning where the Use is not setled in any Person I agree my Lord Pagets Case because there the Estate was vested in William Paget and the other Use returned by operation of Law and the Estate setled could not be divested but here the Limitation to the Heirs Males being void the ancient Use remained yet in Michael for nothing was out of him he having limited a thing which cannot be And as to a returning Use tho' all be done in an instant yet there is a priority of time in the Eye of the Law for it ought to vest first in him in Remainder and then Return but here nothing vests in the Remainder Secondly It hath béen urged That it shall be made good by Implication of Law and so shall amount to a Covenant to stand seized to the Used of the Covenantor for Life c. and the rather as it has béen said by Wild because Uses are guided by Equity But I answer we are here in case of a Deed where an Estate shall not be raised by Implication as it shall by a Will Cro. Car. Seagood ad Hone 366. A Deed differs greatly from a Will for if a Man Surrenders Copyhold Land to two equally to be divided they are joynt-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
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
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
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
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
Usage in England is that the Archbishop is Guardian of the Spiritualties in the Suffragan Diocess 225 234 Blasphemy Blasphemous Words not only an Offence to God and Religion but a Crime against the Laws State and Government and Christianity is parcel of the Laws of England 293 Bond. See Obligation What Bond a Gaoler may not take of his Prisoner 237 The Condition of a Bond or Covenant may in part be against the Common Law and stand good in the other part ibid. C. Certiorari PRisoners cannot be removed by Certiorari from a Country Gaol till the Indictment be found below 63 Lies to remove an Indictment of Manslaughter out of Wales to be Tryed in the next English County 93 So of Murder 146 Challenge What is good Cause and where Cause shall be shewn 309 Where the Kings Council shall shew Cause ibid Chancery Tryals directed out of Chancery the Course 66 Answer in a Court of Equity Evidence at Law against the Defendant 212 Churchwardens Bring Account against their Predecessor for a Bell whether it shall be said to be de bonis Ecclesiae or de bonis Parochianorum 89 Whether they may refuse to take the Oath to present and how to proceed 114. 127 General VVords to present Offenders do not extend to the Church-warden himself but relate only to the rest of the Parish 127 May make Rates themselves if the Parishioners are Summoned and refuse to meet 367 Common See Pasture Where Common is claimed for Beasts Levant and Couchant on certain Land no other Beasts ought to be put on the Common but those of the Tenant of the Land to which it is appendant or those which he takes to compester his Land 18 A Man cannot prescribe for Common by a Prescripeion that is unreasonable 21 Common apurtenent for Beasts Levant and Couchant how pleaded 54 Common in another Mans Soyl how to be claimed 383 A Commoner cannot prescribe to exclude his Lord 394 The Comencement of Commons 395 In a Title of Common for Beasts Levant and Couchant the Levancy and Couchancy is not Traversable 385. Nor material among Commoners 397 Condition What Words make a Condition what a Limitation and what Conditional Limitation 202 203 Conspiracy If one be acquitted in an Action of Conspiracy the other cannot be guilty but where one is found guilty and the other comes not in upon Process or Dyes yet Judgment shall be against the other 238 Indictment lies for Conspiring to charge with a Bastard Child and thereby also to bring him to disgrace 305 Constable See Attorney Tenant in Antient Demesne not excused from serving Constable 344 Contingency See Grant Remainder Conveyance Contingent Estates what and how destroyed 215 334 Whether a Descent in Tayl prevents a Contingent Remainder 306 Contract A Verbal Contract cannot create a Penalty to oblige the Heir 76 Conveyance The Modern VVays of Conveyancing to prevent the disappointing Contingent Estates 189 VVhere a Conveyance is good before Inrolment and where not 360 Difference between a Conveyance at Common Law and a Conveyance to Uses 373 378 Copyhold See Pasture Admittance of Tenant for years is an Admittance of him in the Remainder 260 VVether Copyholder for Life in Reversion after an Estate for Life in being can Surrender to a Lord Disseizor 359 Coroner VVhere a Melius Inquirendum shall be granted after a Coroners Inquisition super visum Corporis 182 A Coroners Inquisition that finds a person Felo de se non Compos may be Traversed 278. And quasht 352 Corporation VVhat they can do without a Deed and what not 47 48 Costs See Assault and Battery Treble Costs in an Action on the Stat. 8 H. 6. of Forcible Entry 22 Costs where payable in a VVrit of Error 88 VVhere payable by an Executor 92. and Administrator 110 116 If an Executor be sued and the Plaintiff Non-suit he shall have Costs but an Executor Plaintiff shall pay no Costs upon a Non-suit 94 Costs and Damages not to be given in an Action Popular 133 Costs de Incremento 337 362 Covenant VVhat Collateral matters shall be implied upon a Covenant 26 44 45 Thô a Covenant be made only to a Man his Heirs and Assigns yet if a Breach be in his Life time his Executors may bring the Action for Damages 176 VVhere a Covenant shall bind notwithstanding a subsequent Act of Parliament 175 176 Covenant with an Intended VVife whether discharged by subsequent Marriage 344 Courts See Jurisdiction Inferiour Courts cannot make a Continuance ad Proximam Curiam but always to a Day certain 181 Customs See Prescription To maintain a Common Key for the unlading of Goods and therefore every Vessel passing by the said Key to pay a certain Sum a void Custom as to those Vessels which did not unlade at the said Key 71 A Custom that Lands shall descend always to the Heirs Males tho' of the Collateral Line Good 88 D. Damages See Costs NOne but the Courts at Westminster can increase Damages upon View 353 Date See Lease Demurrer The old way of Demurring at the the Bar 240 Devastavit See Executor Return Devise Whether a Termor may Devise in Remainder and limit a Possibility upon a Possibility 79 To Dr. V. during his Exile from his Country what Estate passes 325 Divers parcels of Lands being devised whether these words the said Lands pass all the parcels or only the last mentioned 368 A Devise of Lands to two equally to be divided makes them Tenents in Common 376 Discents The various Kinds of Discents or Hereditary Successions and the Rules whereby they are to be governed 414 The Discent from a Brother to a Brother thô it be a Collateral Discent yet it is an immediate Discent 423. And therefore two Brothers Born in England shall Inherit one the other tho' the Father be an Alien 429. Secus in Cases of Attainder 416 417 If the Son purchase and have no Kindred on his Fathers side but an Alien his Estate shall discend to the Heir on the part of his Mother 426 Distress Whether in Distress for Rent Horses may be severed from a Cart 36 An Information lies not against a Landlord for taking excessive Distress of his Tenents 104 Hindring the Carrying off a Distress a provocation to make killing no more than Homicide 216 Dower The regular proceedings therein 60 Whether a Suit for Dower may be commenced by Plaint in an Inferiour Court without special Custom 267 E. Ecclesiastical Persons PRivilidges from Offices 105 Death of a Parson c. doth not make such a Non-residence as shall avoid a Lease 245 What Leases they may make and what not 245 246 Clergy Men are liable to all publick charges imposed by Act of Parliament in particular for reparation of the Highways 273 Of the Induction of Clerks by whom to be made 309 319 Election Where a thing depends upon Election what course is to be observed 271 Entry Where in Ejectment actual Entry is necessary 332 Error See Executors To reverse a Judgment
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
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
the Avowant mode forma as he hath set forth 211 The Avowant demurs generally The Plaintiff joyns 212 4. The Plaintiffs declare against three Defendants for taking and detaining their Cattel 224 One of the Defendants avows the other two make Conizance as his Bayliffs The Avowant says That the Father being seized in Fee of the third part of a certain Messuage c. of which the Locus in quo was parcel demised the same for 99 years if A. B. and C. or either of them should so long live reserving Rent That the Lessee entred That the Father being seized of the Reversion died seized and a discent to the Avowant as Heir at Law who distrained for Rent arrear 225 Super praedictam tertiam partem c. And avers That C. is still living In Bar to the Avowry the Plaintiffs Confess the seisin of the Father of one third and that J. S. was seized of the other two parts who licensed the Plaintiffs to put in their Cattel upon the Locus in quo which they did 226 The Defendants demur to the Bar. The Plaintiffs joyn in Demurrer 227 S. Scire facias 1. AGainst a Ter-tenant 101 The Judgment recited in the Writ to the Sheriffs of London The Plaintiff obtulit se at the Return The Sheriffs Return That there were no Tenants of any of the Defendants Lands at the time of the Judgment or at any time since quibus Scire fac ' possunt 101 A Testatum Scire fac ' to the Sheriff of Norfolk The Plaintiff and a Ter-tenant appear at the Return The Sheriff Returns That he had summon'd P. S. who was then Tenant of Lands which were the Defendants at the time of the Judgment and that there are no other Tenants to whom c. The Ter-tenant salvis sibi omnibus exceptionibus c. Imparls The Plaint revived continued and adjourn'd by Act of Parliament 3 Febr. 1. W. M. A further Imparlance The Plaintiff prays Execution 102 The Ter-tenant pleads in Abatement of the Writ and alledges that there are other Tenants of other Lands in Surrey belonging to the Defendant at the time of the Judgment and prays Judgment and that the Writ may be quasht The Plaintiff demurs to the Plea The Ter tenant joyns in demurrer 103 Sheriff Action against him Vid. Actions on the Case 3. Plea to his Bail Bond. Vid. Debt 5. Slander Vide Action on the Case 7. Special Verdict Vid. Trover 2. T Trespass 1. TRespass against the Defendant simûl-cum G. F. for taking Vi armis and Impounding his Cattel quousque finem fecit of 11 l c. contra pacem c. 90 The Defendant as to the Vi armis and contra pacem pleads Not guilty And as to the residue of the Trespass he pleads a Seizure by virtue of a Fieri facias out of the Common Pleas and the Sheriffs Warrant thereupon and that the Cattel were appraised at 11 l being the true Value and detain'd until the said Sum was paid to the Sheriffs Baily for the use of the said Sheriff pro deliberatione averiorum prout bene licuit which was the residue of the said Trespass absque hoc that he is guilty before or after the said taking 91 92 The Plaintiff demurs and assigns for Cause that the Traverse is ill as to Time and that the 11 l ought not to have been paid to the use of the Sheriff by the Law of the Land The Defendant joyns in Demurrer 93 2. Trespass for Assault Battery Wounding and Imprisonment 189 As to the Vi armis vulnerationem the Defendant pleads Not guilty and Issue thereupon At to the residue of the Trespass he pleads that he obtained Judgment against the Plaintiff in the Common Pleas in an Action of Indebitatus Assumpsit which Judgment was afterwards set aside and vacated but before it was vacated a Ca. sa was sued out thereupon directed to the Sheriff who made his Warrant to the Bayliff of the Liberty 190 The Bayliff takes the now Plaintiff thereupon and had him in Custody until he paid the Money quae sunt idem Resid ' Transgr ' Insult ' Imprisonat ' and Traverses that he is not guilty of any other Trespass c. The Plaintiff replies That the now Defendant then Plaintiff in the Judgment was an Attorney whose Duty is to enter Judgments fairly and honestly and that he in deceit of the Court entred the Judgment when he ought not to have done it 191 And that afterwards on the Examination and Consideration of the said Entry the said Judgment was by the said Court adjudged void ab initio 192 The now Defendant Plaintiff in the Judgment confesseth the Matter and saith that he appointed the Judgment to be duly Entred but by default of the Clerk it was entred irregularly Absque hoc that it was Entred by the said now Defendant falso fraudulenter in deceptionem Curiae ibid. The Plaintiff demurs The Defendant joyns 193 Trover 1. TRover brought by an Assignee of Commissioners of Bankrupts 63 The Declaration sets forth the Bankrupt to be possest of such and such Goods which came to the hands of the Defendant 63 That the Bankrupt exercised the Trade of a Vintner and became Indebted to several Persons That he departed from his Dwelling-House and became a Bankrupt That the Creditors Petition'd the Lord Chancellor The Commission sued out 64 The Commissioners find him a Bankrupt and make Assignment to the Plaintiff 65 A Conversion of the said Goods by the Defendant 66 The Defendant demurs to the Declaration The Plaintiff joyns in Demurrer 66 2. Against the Sheriffs of London and others for 225 l in Money numbred and divers Goods 156 The Defendants as to part of the Goods which they set forth in particular plead That the Plaintiffs formerly brought an Action of Trespass upon the Case in the Kings-Bench against the now Defendants for taking and carrying away the Goods now sued for 159 That upon Not guilty pleaded the Issue came to a Trial and the Jury found a Special Verdict 160 Which they recite at large That the Owner of the Goods became a Bankrupt That a Judgment was recovered against him for 1000 l and a Fieri facias issued out which being delivered to the Sheriffs of London they seized the Goods in Execution That after Seizure and before Sale a Prerogatie Process issued out against the Goods which is recited in haec verba 161 The Return of the said Process 163 The Goods taken by Inquisition inventoried appraised and sold and the Money delivered to the King's Debtor 164 A Commission of Bankrupts sued out The Commissioners assign to the Plaintiffs The Assignees possest And then they Conclude Si utrum super tota Materia the Defendants are guilty the Jurors know not if the Court shall adjudge them guilty they find for the Plaintiffs if not for the Defendants 165 After several Continuances the Loquela remaining sine die was revived and continued by Act of Parliament
redd ' unius anni mediet ' redd ' unius anni per quem talia terrae vel tenementa sic alienat ' tent ' fuer ' in Manerio praed ' nomine finis pro alienatione and lays a Custom to distrain for the said Alienation Fine and then sets forth an alienation of the said Messuage and Premisses by the said Sir John Sabin to one Walter Tyndall in fee and shews that the said Walter Tyndall made another alienation in fee to one Christopher Yates and so sets forth that there were two Fines due upon the said alienations after the rate aforesaid amounting to 18 l 7 s and 7 d ob and that he as Bayliff of the said Dean and Chapter captionem praed ' bene cognoscit in praed ' loco in quo ut in parcell ' tenement ' praed ' To this the Plaintiff demurred and it was spoken to at the Bar the last Term and likewise this Term The main thing was that the Custom as it was laid was not good for the Alienation Fine is set forth to be due upon the Alienation of any parcel of Lands or Tenements held of the said Mannor to have a year and halfs Rent by which the Lands or Tenements so aliened were held so that if the 20th part of an Acre be aliened a Fine is to be paid and that of the whole Rent for every parcel is held at the time of the alienation by the whole Rent and no apportioning thereof can be but subsequent to the Alienation and this the whole Court held an unreasonable Custom and it is set forth it could not be otherwise understood than that a Fine should be due viz. a year and halfs Rent upon the Alienation of any part of the Lands held by such Rent The Court doubted also whether the Custom was good as to the claiming an Alienation Fine upon an Alienation for Life because by that the tenure of the Lands aliened is not altered for the Reversion is still held as before by the same Tenant Judicium pro Quer ' Colley versus Helyar IN an Action of Debt for 34 l the Plaintiff declared against the Defendant an Attorney of this Court praesente hic in Cur. in propria persona sua upon a Bond of 34 l The Defendant pleads in Bar quoad quinque libras sex solid tres denar of the aforesaid 34 l that the Plaintiff post confectionem Scripti Obligat ' praedict ' scilicet vicesimo c. anno c. ê‘ quoddam Scriptum suum acquietantiae cognovisset se accepisse habuisse de praed Defendente 5 l 6 s and 3 d in part solutionis majoris summae and pleaded a frivolous Plea as to the rest of the Mony to which the Plaintiff demurred And it was argued that the Acquittance under the Plaintiffs Hand and Seal for 5 l 6 s and 3 d part of the Mony due might have been pleaded in bar of the whole and that if the Defendant here had relied upon it it would have barred the Plaintiff of the whole Vide for that matter Hollingwoth and Whetston Sty 212. Allen 65. Beaton and Forrest Note there the payment was since the Action brought and pleaded in abatement where it was said that it could not be so pleaded without an Acquittance Vide Kelw. 20. 162. 3 H. 7. 3 B. receipt of parcel pending the Writ 7 Ed. 4. 15. a. But it seems clear by the Book of Edw. 4. 207. Mo. 886. Speak versus Richards That if part be received and an Acquittance given before the Action it is a Bar only of so much but it seems the Action must be brought for the whole Dickman versus Allen. Cantabr ' ss Case brought against the Defendant for not folding his Sheep upon the Plaintiffs Land according to Custom The Colledge of St. Mary and St. Nicholas seized in Fee jâ—re Collegii ABRAHAMUS ALLEN nuê‘ de Grancester in Com' praedicto Yeom ' attach ' fuit ad respondend ' Roberto Dickman Gen ' de placito transgr ' suê‘ Casum c. Et unde idem Robertus per Robertum Drake Attorn ' suum queritur quare cum Praepositus Scholares Collegii Regalis Beatae Mariae Sancti Nicholai in Cantabr ' in Com' praed ' seisit ' fuissent de uno Capitali Messuagio cum pertinen ' in Grancester in Com' praedicto ac de centum sexaginta acris terrae arrabil ' jacen ' in Communibus Campis de Grancester praedicta cum pertinen ' in dominico suo ut de feodo in jure Collegii sui praedicti iidemque Praepositus Scholares omnes ill quorum statum ipsi habuer ' de in tenementis praed ' cum pertinen ' a tempore cujus contrarii memoria hominum non existit habuer ' habere consuever ' ê“ se Firmariis Tenentibus suis eorundem A Custom for all the Tenants to sold their Landlords Land Tenementorum cum pertinen ' libertatem Faldagii Anglicê Foldage omnium Ovium Ovibus suis ê“priis Ovibus tenen ' occupatorum ê“ tempore existen ' quorundam Messuagiorum Terrarum in Villa de Coton in Com' praed ' qui a tempore cujus contrarii memoria hominum non existit respective usi fuer ' Common of Vicinage intercÌ„oiare causa vicinagii in quibusdam Communibus Campis de Grancester praed ' cum Ovibus suis in super praed ' Messuagiis terris suis in Coton praed ' Levant and Couchant levan ' cuban ' except ' suor ' depascen ' infra Communes Campos territoria de Grancester praedicta a vicesimo quinto die Martii usque primum diem Novembris quolibet anno suê‘ praedictas centum sexaginta acras terras arabil percipiend ' From such a day to such a day faldand ' tanquam ad tenementa praedicta cum pertinenciis pertinen ' praedictisque Praeposito Scholaribus Collegii praed ' de Tenementis praedictis cum pertinen ' The Principal and Scholars demise to the Plaintiff by Indenture in forma praedicta seisit ' existen ' Praepositus Scholares postea scilicet decimo nono die Octobris Anno Domini millesimo sexcentesimo octogesimo primo apud Grancester praedictam quodam Johanne Coppleston Sacrae Theologiae Professor ' adtunc Praeposito Collegii praedicti existen ' ê‘ quandam Indenturam inter ipsos Praepositum Scholares ex una parte quendam Johannem Wittewronge Mil Barronet ' ex altera parte factam cujus alteram partem Sigillo cÌ„oi ipsorum Praepositi Scholarium signat ' idem Robertus Dickman hic in Cur ' profert cujus dat' est eisdem die anno dimiser ' ad firmam tradider ' eidem Johanni Wittewronge Tenementa praedicta cum pertinen ' Habendum habend ' occupand ' praefat ' Johanni Assign ' suis a tempore confectionis Indenturae illius usque plenum finem terminum viginti
ann ' For 21 years extunc ê“x ' sequen ' plenar ' complend ' finiend ' Virtute cujus dimissionis praedictus Johan ' in TenÌ„ta praed ' cum pertinen ' Lessee enters intravit fuit inde possessionat ' Et sic inde possessionat ' existen ' idem Johannes postea scilicet decimo die Augusti Anno Domini millesimo sexcentesimo octogesimo secundo apud Grancester praedictam dimisit ad firmam tradidit eidem Roberto Dickman Tenementa praedicta cum pertinen ' habend ' occupand ' And Demised to the Plaintiff eidem Roberto Assign ' suis a Festo Sancti Michaelis ArcÌ„hi tunc ê“x ' sequen ' usque plenum finem terminum sex annorum extunc ê“px ' sequen ' plenar ' For six years complend ' finiend ' virtute cujus dimissionis idem Robertus in crastino dicti Festi Sancti Michaelis Arch ' Anno Domini milesimo sexcentesimo octogesimo secundo supradicto in Tenementa praedicta cum pertinen ' intravit fuit inde possessionat ' The Lessee Enters usque finem expirationem ejusdem termini praedictus tamen Abrahamus praemissorum non ignarus sed machinans fraudulenter intendens ipsum Robertum minus rite praegravare ac eum de faldagio praedicto ut praefertur habend ' impedire ac de prosicuo commoditate inde totaliter deprivare diu ante finem termini praedicti ult ' mentionat ' scilicet primo die Maii Anno Regni Domini Jacobi secundi nuper Regis Angliae tertio Oves videlicet ducent ' Oves ipsius Abrahami in Communes Campos de Grancester praed ' ibidem depasturand ' The Cause of Action posuit Oves ibidem eun ' depascend ' extunc usque decimum diem Septembris tunc ê“x ' sequen ' existen ' ante finem termini praedicti ult ' mentionat ' custodivit continuavit sed Oves ill ' in aut super praedictas centum sexaginta acras terrae arrabilis ipsius Roberti vel in aut super aliquam inde parcellam minime faldavit sicut ipse debuisset nec permisit ipsum Robertum habere beneficium faldagii earun-praedicto Abrahamo duran ' eodem termino non existen ' tenen ' For not Folding his Sheep according to Custom sive occupatore aliquorum messuag ' sive terrarum in Villa de Coton praed ' de quibus tenen ' sive occupator ' inde ê“ tempore existen ' a tempore cujus contrarii memoria hominum non existit usi fuer ' intercoicÌ„are Causa vicinagii in praedictis Communibus Campis de Grancester praedict ' cum Ovibus suis praedict ' ut praefertur per quod idem Robertus ê“ficuum advantagium faldagii Ovium praedictorum super praedictas centum sexaginta acras terrae arabil ' quibus ipse gaudere debuisset ê‘ tempus illud omnino ê‘didit amisit ad dampnum ipsius Roberti quadraginta librarum inde ê“duc ' Sectam c. Per quod the Plaintiff lost the benefit of Foldage Et praedictus Abrahamus per Richardum Pyke Attorn ' suum ven ' defend ' vim injur ' quando c. Not Guilty pleaded Et dic ' qd ' ipse in nullo est culpabilis de pÌ„missis praedictis suê‘ius ei imposit ' ê“ut praedictus Robertus su ê‘ius versus eum queritur Et de hic pon ' se suê‘ Patriam Et praedictus Robertus similiter Ideo praecept ' est Vic' qd ' venire fac ' hic a die Sanct ' Trin ' in tres septimanas duodecim c. ê‘ quos c. Et qui nec c. ad recogn ' c. quia tam c. Dickman versus Allen. IN an Action upon the Case the Defendant declared That the Provost and Scholars of Kings College in Cambridge were seised in Fee in jure Collegii of a Messuage in Grancester in Cambridge and 160 Acres of Arable Land lying in the Common Fields of Grancester aforesaid and the said Provost c. and all those whose Estate they have in the Tenements aforesaid have time whereof c. for themselves their Farmers and Tenants of the said Tenements libertatem Foldagii Anglicè Foldage omnium Ovium except c. euntium depascentium infra Communes Campos Territoria de Grancester praed ' super praed ' centum sexaginta Acras Terrae ê‘cipiend ' foldand ' tanquam ad praed ' Tenement ' ê‘ertinent ' and then sets forth a Lease made by the Provost and Scholars to Sir John Witwrong of the said Messuage and 160 Acres for 20 years which said Sir John let them to the Plaintiff for six years by virtue whereof the Plaintiff entred and was possessed and the said Defendant Praemissorum non ignarus did put 200 Sheep into the Common Fields of Grancester aforesaid and there kept and depastured them for a certain time sed Oves illas in aut super praed ' centum sexaginta Acras Terrae Arab ' ipsius Quer ' vel in aut super aliquam inde parcell ' minime foldavit sicut ipse debuisset nec permisit ipsum Querentem habere beneficium faldagii earundem and shews how the Defendant was not within exception by which the Plaintiff lost the profit of the Foldage c. and laid it to his damage of 40 l The Defendant pleaded not guilty and a Verdict was for the Plaintiff And it was moved in Arrest of Iudgment that the Plaintiff had not in his Declaration set forth a sufficient Cause of Action for he saith that the Defendant had not folded his Sheep upon the 160 Acres as he ought and it is not set forth that the Custom was for the Owner of the Sheep to bring his Sheep to fold them upon the said Lands But it was objected on the Plaintiffs part that the word Foldagium did imply as much and it was the usage in Norfolk and Suffolk for the Owner of the Sheep to put his Sheep into the Lords Land and fold them there for which the Lord provided Hurdles and prepared the Fold to receive them and of this Faldagium a Fine was levied of inter al' as is reported in 1 Ed. 3. fo 2. and the usage in Norfolk and Suffolk is there mentioned And it was said in a Possessory Action 't is enough to say sicut debuit without setting forth any particular Custom or Prescription And Dent and Olivers Case was cited 2 Cro. 122. where an Action was brought for disturbing of him in taking of Toll ad Feriam ipsius le Plaintiff spectan ' and it was moved after Verdict that he made no Title by Prescription or Custom to the Toll and it was held by the Court to be sufficient in a possessory Action to say ad Feriam suam spectant ' So also in an Action for stopping of a way belonging to his House without setting forth any Prescription between St. John and Moody a
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
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
and that Isaack Knight his Executor took a Capias thereupon out of the Common-Pleas Now it being a Statute-Merchant it ought first to have been certified into the Chancery and from thence a Capias should be issued out Returnable in the Court of Common-Pleas And so the Statute of Acton Burnel 30 Ed. 3. Enacts and so is Fitz. N.B. 130. whereas here the Capias goes out of the Common Pleas and for ought appears was the first step towards the execution of this Statute for it doth not appear that it was ever certified or that the Court had any Record before them to award this Capias upon and so the Execution is quite in another manner than the Statute provides and in a new Case introduced by the Statute and therefore it seems to be void and if so then the Statute of Knight could not be assigned so as to pass the Interest of it to Edward Lewis and the Fines will have no effect upon it and indeed it puts it clean out-of the Case before us as if it had never been acknowledged and the Interest of that Statute must be still in the Executor of Knight But then admitting it to have been extended and consequently well assigned together with Gerrard's Statute to Edward Lewis if so I take it to be drowned in Gerrard's Extent As to that the Case is no more than this that after the Statute is extended there comes another Extent upon a puisne Statute for 't is found that Gerrard's Statute was extended after Knight's Statute whether the Estate by Extent upon the puisne Statute be in the nature of a Reversional Interest for if so then when the Interest of the first Extent and the latter comes into one person the first must be drowned for an Estate for years or other Chattel Interest will merge in a Chattel in Reversion that is immediately expectant And that is Hughes and Robotham's Case in the 1 Cro. 302. pl. 32. If a Lease for years be made and then the Reversion is granted for years with Attornment the Lessee may surrender to the Grantee and the Term will drown in the Reversion for years To which it is Objected That an Extent is rather in the nature of a Charge upon the Land than an Interest or Estate in the Land it self In the Case of Haydon and Vavasor versus Smith in Mo. 662. an Extent is thus described that it is onus reale inhaerens gremio liberi tenementi tout temps Executory as the words of that Book are If the Tenant by an Extent purchase the Inheritance of part of the Lands extended the whole falls So a release of the Debt will immediately determine the Extent and it has been compared to one that enters into Lands by virtue of a power to hold until the arrear of Rent is satisfied It is true an Extent is an Execution given by the Statute Law for the satisfaction of a Debt and therefore the release of the Debt must determine the Estate by Extent because the Foundation of it is removed and so if the Inheritance of part of the Land extended comes to the Conusee it destroys the whole Extent whereas if a Lessee for years purchaseth the Reversion of part the Lease holds for the rest But in case of an Extent if it should be so the Conusee would hold the residue of the Land longer because the Profits that should go in satisfaction of the Debt must be less and this would be to the wrong of him in the Reversion But in other respects an Extent makes an Estate in the Land and hath all the properties and Incidents of and to an Estate and doth in no sort resemble such an Interest as is only a Charge upon the Land An Interest by Extent is a new Species of an Estate introduced by Statute Law Our Books say that 't is an Estate treated in imitation of a Freehold and quasi a Freehold but no Book can be produced that says that 't is quasi an Estate The Statute of 27 Ed. 3. cap. 9. Enacts That he to whom the Debt is due shall have an Estate of Freehold in the Lands and the Statute of 13 Ed. 1. de Morcatoribus say That he shall have Seisin of all the Lands and Tenements When a Statute is extended it turns the Estate of the Conisor into a Reversion and so are the express words in Co. 1 Inst 250. b. and so the Objection That he does not hold by Fealty is answered and there are no Tenures that are to no purpose but he that enters by virtue of a power to hold till satisfied an Arrear of Rent he leaves the whole Estate in the Owner of the Land and not a Reversion only If a Lease for years be made reserving Rent and then the Lessor acknowledge a Statute which is extended the Conisee after the Extent shall have an Action of Debt for the Rent and distrain and avow for the Rent as in Bro. tit Stat. Merch. 44. and Noy fo 74. but he that enters by a Power to hold for an Arrear of Rent shall not He in Reversion may release to the Tenant by Extent which will drown the Interest and emerge his Estate according as it is limited in the Release Co. 1 Inst 270. b. 273. Tenant by Statute may forfeit by making a Feoffment Mo. 663. He is to Attorn to the grant of the Reversion 1 Roll. 293. and is liable to a Quid juris clamat 7 H. 4. 19. b. Tenant by Extent may surrender to him in Reversion 4 Co. 82. Corbet's Case therefore these Cases are to shew That an Extended Interest makes an Estate in the Lands as much as any Demise or Lease And I take it the consequence of that is That when an Estate by Extent is evicted by an Extent upon a prior Statute as Elwaies and Burroughs Extent was by the Extent of Knight's Statute or where the prior Statute is first extended and then a Statute of later date is extended as Gerrard's Statute is found to be extended after the Extent upon Knight's Statute In both these Cases the Extent upon the puisne Statute will be in the nature of a Reversional Interest A Reversion is every where thus described viz. An Estate to take effect in possession after another Estate determined 'T is not in nature of a future Interest as a Term for years limited to commence after the end of a former Term for such an one shall not have the Rent upon a former Lease as I have shewn before but he that extends upon a Lessee for years shall for the Liberate gives a present Interest to hold ut liberum tenementum but indeed cannot take effect in possession by reason of a prior Extent or by prior Title And this is the very case of a Reversion which is an actual present Interest tho' it be to take effect in possession after another Estate Now I conceive it will plainly follow from this That Knight's Statute is drowned in Gerrard's
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
to be done where there has been only a right of Action as in Sawle and Clerke's Case in Jones 211. and Cro. Car. where the Case as to this Point is to this effect A Remainder upon an Estate Tail was divested by the Fine of Tenant in Tail who had made an Estate for Life warranted by the Statute and died without Issue He in the Remainder was barred from bringing a Formedon in the life of the Tenant for Life within Five years after the Fine and had not a new Five years after the death of Tenant for Life tho' he could not Enter in the life of the Tenant for Life And the Reason given in Crook's Reports is because he had no other Right after the Death of the Tenant for Life than he had before and this plainly distinguisheth that and the Case at the Bar from the Cases that have been cited of June and Smye's Case in the 1 Cro. 219. and Laund and Tucker 254. for there the Fine was Levied by the particular Tenant which was a Forfeiture which he in Reversion might choose whether he would take advantage of and as the case might be it would be to his prejudice to take advantage of it where the particular Tenant has charged the Land and therefore if he would he should have Five years after the Estate determined to claim as of his Reversion which is another distinct Right from that of the Forfeiture And this was the standing difference that made the distinction where there should be a new Five years given to him in Reversion after the particular Estate determined and where not as we see in Margaret Podgers Case in the 9 Co. 106. If the Tenant for years were ousted and a Fine levied by the Disseisor he in the Reversion was bound by the first Five years Non-claim because tho' he could not enter as if the Estate for years had been determined or as in the Cases before of the Forfeiture yet he might have immediately brought an Assize with which Sawl and Clarke's Case exactly agrees and goes upon the same Reason As for Freeman's Case the Resolution goes wholly upon the Circumstances of Fraud appearing in the Case the principal of which was That the Lessee continued in possession and paid the Rent I confess they have gone a little further of late and now it is taken That he in Reversion shall have Five years after the Term is ended by effluction of Time tho' there were no Forfeiture incurred at the Levying of the Fine Nor no such plain Circumstances of Fraud as appears in Fermer's Case and the Case put before and cited out of Margaret Podgers Case is not held to be Law The contrary whereof is taken to have been Resolved in Folley and Tancred's Case in the 24 Car. 2. and I do not intend to shake the Authority of that Case but admit it to be good in Law yet I crave leave to observe That it is a Resolution carried beyond the words of the Statute for the Right is not pursued within Five years next after it first came For it is agreed in Fermer's Case fo 79. that there the Construction was against the Letter of the Statute and I must say it is a Construction by Equity which is a little extraordinary to weaken the force of a Statute which was made for the quieting of mens Possessions and to add force to Fines which were of so great regard in Law and especially to make a Construction by Equity contrary to the Reason of the Common Law which took no care of a future Right at all for he in the Reversion in case of a Fine Levied at the Common Law depended wholly upon the Entry or Claim of the particular Tenant and in default of that lost his Estate as in the 1 Inst 262. b. and in Plowden's Commentaries in Stowell's Case I say again I do not design by this to oppose any Case that hath been setled But I confess I should not have gone so far if I had not been led by Authority and am not willing to go a step further And now I shall endeavor to shew that this Case goes a great deal further and would be a greater strain upon the Statute than yet has been And First I Observe that upon all or most of the Cases of a Fine where there has been an Estate for Life or Years in being at the time of the Fine that the Possession has held still in the particular Tenant so that he in Reversion had no reason to suspect any Fine or other thing done upon the Estate there being no alteration of the Possession And this agrees somewhat with the Reason of the Common Law in case of a Fine Executory he that had Right was not bound to claim till there were an Execution of the Fine and Transmutation of the Possession thereupon as in Plowden's Commentaries 257. b. in Stowell's Case But here it is found that the Conusor and not the Conusees or the Tenants by Extent or either of them were in possession so that the Land being in the possession of a Wrong-doer they which had Right ought to have watched and might well suspect that Fines should be Levied to the prejudice of their respective Rights It is said in Fermer's Case If a meer Wrong-doer having got the Possession levieth a Fine on purpose to bind the Right this shall bind notwithstanding his unjust Design But the Differences that I chiefly rely upon to distinguish the Case before us from the Cases of Reversions upon Estates for Life and Years or the like particular Estates are these 1. That in those Estates there is either by an express Limitation of the Parties or an operation of Law a certain and particular Term or End of the Estate which until it happens it has not its proper determination which an Estate by Extent has not I know it is has been much insisted on that the natural and proper determination of an Extent is satisfaction by a perception of Profits according to the extended Value whereas I cannot see but a release of the Debt or satisfaction by a sudden Accident is as properly a determination of the Extent as if it were run out by perception of Profits according to the extended Value For when the first Extent is out of the way the second is immediately to take place or why this acknowledging Satisfactoin on Record should be the natural and proper determination of the Extent more than a Release of the Debt by the Conusee or destroying of it by a Fine which is an higher Record than the Statute or the Entry of Satisfaction acknowledged thereupon 2. To let him that has the Reversion upon an Estate by Extent have Five years to claim after the first Extent run out by perception of Profits or Satisfaction acknowledged is to let in a Claim after an Estate that no man can see to the end of For when it shall be satisfied by the Profits no man can tell and can
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
Hazard a general Declaration good without setting forth Cross Considerations 175 A Promise to one Part being void cannot stand good as to the other 224 Attorney An Attorney has Priviledge to lay his Action in Middlesex because of his Attendance 47 Averment Whether an Agreement may be pleaded and averr'd to shew the meaning of the Parties and that the Condition of a Bond may be taken accordingly 108 Quarter-days may be averr'd upon these General Words The usual Feasts 141 Authority See Vmpire Where an Authority is once fully Executed the Power is determined Not so where there is a compleat Execution 115 Where a man is vested with a bare Authority his denial or refusal to execute it does not conclude him but that he may execute it afterwards 116 Secus where he is vested with an Interest 117 Award See Arbitrament B Bail See Pleading THe Plaintiff may release his Action after the Sheriff hath taken a Bail-Bond 131 Attachments out of Chancery within the Statute that enables the Sheriff to take Bail-Bonds 238 How far a Bail-Bond may vary from the Writ 238 Bankrupt Trover and Conversion brought by an Assignee of Commissioners of Bankrupts against one possest of Bankrupt's Goods 63 The Commissioners cannot assign Money levied at the Bankrupt's Suit in Execution remaining in the Sheriffs hands or in Court 95 A Bankrupt's Servant shall set forth an Account of the Bankrupts Estate in his Answer to a Bill in Chancery tho' he hath been already Examined before the Commissioners 358 Baron and Feme If a Woman be Warden of the Fleet and one in Prison there marry her he is thereby out of Prison and in the Eye of the Law at large being a Husband cannot be in Custody to his Wife 19 Battery brought for both and found only as to the Wife tho' they cannot joyn for beating both yet good after Verdict 29 That Baron and Feme Executrix devastaverunt converterunt ad usum iplorum good 45 In an Action brought against the Husband for Lodging and Goods had by the Wife after Elopement what Plea shall be good what not 155 Whether the Wife may joyn with her Husband in bringing Trespass Quare Clausum fregit where the Land is the Wives 195 A Supplicavit de bono gestu granted in Chancery against the Husband for ill Usage to his Wife 345 Bond or Bill Penal See Obligation By Law A Corporation cannot make a By-Law to bind those which are not of its Body without Act of Parliament or express Prescription 33 Whether a By-Law of the University of Oxford shall oblige the Townsmen 33 34 A Corporation cannot make a By-Law to have a Forfeiture levied by sale of Goods nor for Forfeiture of Goods 183 C Canons THose of 3 Jac. 1. of force tho' never confirm'd by Act of Parliament 44 What Canons of force what not ibid. Challenge To the Array because the Sheriff in 1687. had not taken the Test the Challenge disallow'd 58 Chancery See Covenant Mortgage Trial Limitations Executor An Infants Answer in Chancery by Guardian no Evidence at Law to affect the Infant 72 There can be no Process of Contempt in Chancery against a Peer 342 Purchaser without Notice of Incumbrance favour'd in Chancery 339. 343 Words of Conveyance passing more than was intended how relievable in Chancery 345 A Trust and Equitable Interest is a Creature of the Chancery and therefore disposable by the Rules of that Court 350 Where a man leaves his Estate under several Incumbrances if the Heir buys in any of the first they shall not by the Course of this Court stand in the Way of Creditors for more than the Heir really paid for them 353 Relieves an Heir against Extortion 359 What shall be admitted to be read in Chancery what not 361 Distribution of Intestates Estate upon the Statute of 22 23 Car. 2. cap. 10. may be sued for in Chancery 362 Where a Bill is Exhibited to examine in prepetuam rei memoriam the Plaintiff must not pray Relief 366 Commitment What Commitment of Justices of the Peace for refusing to find Sureties of Good Behaviour good what not 22 23 24 Condition Condition of a Bond not to give Evidence at the Assizes against Law and the Obligee ought to be prosecuted for taking such a Bond 109 Consideration See Vse Notice Grant Enrolment Marriage Mortgage Conveyance Conveyances at the Common Law not such as work by the Statute of Vses or Surrenders of Copy-holds divest the Estate out of him that makes them immediately and put it in the Party to whom such Conveyance is made tho' in his Absence or without his Notice till he shews his disagreement 201 What Acts are requisite in Conveyances at Common Law 201 202 Atricles to Settle decreed to be executed by the Heir at Law 343 A Voluntary Conveyance defective at Common Law rarely relieved in Chancery 365 Copyhold See Action on the Case In what Cases and when the Lord shall seize the Copyhold Estate of his Tenant for Felony or Treason 38 Lands do not appear to be Copy-hold by saying they were held according to Custom unless it be said at the Will of the Lord 144 A Copyholder in Pleading need not shew admittance where the Title does not come in question as in Avowry for Rent reserved from his Under Tenant 182 Corporation See By-Law A Corporation cannot prescribe in a Que Estate â— sed quere 186 Costs See Nonsuit The Court cannot allow double Costs unless the Judge of Assizes caused the Postea to be mark'd 45 Divers Trespasses assigned the Defendant pleads Not Guilty for some and Justifies for others and the Jury find for the Plaintiff in one Issue and for the Defendant on the other no more Costs than Damages 180 195 What Costs discharged by the General Pardon and what not 210 No Costs to either Party upon a Repleader 196 Full Costs in Trespass given where the Damage was under 40 s 215 Covenant See Grant Trespass An Attorney Covenants on behalf of another Person that the Plaintiff shall quietly Enjoy an Action of Trespass is brought against the Plaintiff Whether this is a Breach of the Covenant 46 61 62 In an Action of Covenant the Defendant cannot plead that the Plaintiff tempore quo nihil habuit in tenementis tho' such Plea in an Action of Debt for Rent is good 99 Where Lessee Covenants to build three Houses upon the Premisses and keep them in Repair he builds four and lets one fall to decay Whether the Covenant extends to the fourth 128 A Covenant which does not consist with the Recital that leads and occasions it shall not oblige 140 A Suit in Chancery to stay Waste no Breach of Covenant for quiet Enjoyment tho' the Bill be dismist with Costs 213 214 A Latter Covenant by a second Indenture cannot be pleaded in Bar to the former but the Defendant must bring his Action on the last Indenture if he will help himself 218 Custom See Fine D Damages See Costs Debt
See Rent IF part of a Debt upon Bond be received and an Acquittance given before the Action it is a Bar only of so much as was received but if after the Action brought it seems it may be pleaded in bar to the Whole 135 Whether an Action of Debt may be brought upon a Judgment pending a Writ of Error and whether the Defendant in such Action ought to Demur or plead Specially 261 A Consideration creates a Debt tho' that Debt be not reduced to a certain Sum as in the case of a Quantum meruit 282 Debt secured is Payment in Law 358 Devise See Tail Vse Of implicit Devises and where Lands shall pass by Implication in a Will and where not 56 57 A Reversion shall pass in a Will by the Words All my Hereditaments 286 Whether Money in the Court of Orphans be devisable 340 If Money be devised to one to be paid at his Age of 21 years if the Party dies before it shall go to his Executors but if Money be bequeathed to one at his Age of 21 years and he dies before the Money is lost 242 366 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 especially when no Maintenance is otherwise provided 346 Devise to J.S. at the Age of 21 and if J.S. dies before 21 then to A A. dies after J. S. dies under 21 the Administrator of A. shall have it 347 If Lands be devised for payment of Debts and Legacies the Personal Estate shall notwithstanding as far as it will go by apply'd to the payment of Debts c. and the Land only make up the Residue 349 Where an Administrator shall have an Estate devised to an Infant and where not 355 356 A Sum of Money devised to be raised out of the Profits of his Lands the Profits will not amount to the Sum the Land may be sold 357 Diversity where a Child's Portion is devised out of Personal Estate and where to be raised out of Land 366 367 Distress Whether a Drover's Cattel put into a Ground belonging to a Common-Inn upon the Road to London may be distrained for Rent due from the Innkeeper 50 Leave given to mend the Conisans upon a Distress after a Demurrer paying Costs 142 A Distress may not be sever'd as Horses out of a Cart and therefore in some Cases a Distress of great Value may be taken for a small matter because not severable 183 Where one holds a Third part of certain Land and another two Third parts of the same Land undivided he who hath the One part cannot distrain the Cartel which were put in by Licence of him who hath the two Parts 228 283 E Ecclesiastical Court See Marriage WHether the Ecclesiastical Court may proceed against Conventicles or whether they be punishable only at the Common Law 41. They may 44 The legal Method of Proceedings in the Ecclesiastical Courts 42 43 The Proceeding ex Officio 43 A Suit may be tryed in the Ecclesiastical Court upon a Prescription to Repair the Chancel so also for a Modus Decimandi 239 Ecclesiastical Persons A Curate incapable of taking an Estate devised in Succession for want of being Incorporate but the Heir of the Devisee shall hold the Estate in Trust for the Curate for the time being 349 Ejectment In Ejectment the Declaration of Michaelmass Term and the Demise laid 30 of October after the Term began 174 Elegit See Execution Enrolment A Deed where the Grant is exprest to be in Consideration of Natural Affection as well as Money need not be Enrolled but the Land will pass by way of Covenant to stand seised 150 Error See Debt Essoine Where several Tenants in a Real Action may be Essoigned severally 57 Regularly Proceedings in an Essoine in Dower 117 Estate What Words shall create a Tenancy in Common 265 266 Evidence See Action on the Case Chancery Exchange Bills of Exchange have the same Effect between others as between Merchants and a Gentleman shall not avoid the Effect by pleading He is no Merchant 295 310 The Custom of Bills of Exchange 307 310 Execution How the Sheriff ought to behave himself in Executing a Fieri facias 94 95 Whether Money paid for Goods taken upon a Fieri facias is properly paid to the use of the Sheriff or Plaintiff ibid. A Fieri facias was executed after the Party was dead upon the Goods in the hands of the Executor but Teste before tho' not delivered to the Sheriff till after This was a good Execution at the Common Law but quaere since the Statute of 29 Car. 2. cap. 3. 218 An Extent upon an Elegit being satisfied by perception of Profits he in Reversion may enter 336 Executor See Award Rent Waver And Executor may detain for a Debt due upon a simple Contract against a Debt grounded upon a Devastavit 40 Whether the Executor of a Bishop may bring an Action of Covenant for breach of a Real Covenant relating to Lands of the Bishoprick 56 Where a Woman disposes of Goods as Executrix in her own wrong if she takes Administration afterwards tho' before the Writ brought this will not hinder the Plaintiff from charging her as Executrix in her own wrong 180 An Executor in his own wrong cannot retain ibid. The Mother Executrix shall not discount for Maintenance and Education out of the Money left by the Father for the Mother ought to maintain the Child But Money paid for binding him Apprentice may be discounted 353 After an Executor assents to a Legacy he shall never bring it back again to pay Debts Secus where he is sued and pays by Decree in Chancery there the Legatee shall refund 358 Where an Executor pays a Debt upon a Simple Contract there shall be no refunding to a Creditor of a higher nature Vid. Legacy 360 Money decreed in Chancery to the Executor of an Administrator do bonis non and not the second Administrator de bonis non where no Debts appeared of the first Intestate 362 Minority as to Executorship determines at the Age of 17 and then a Personal Estate devised to such Executor vests in him 368 Exposition of Words Faldagium 139 The force of these Words in forma praedicta 215 F Fieri facias See Execution Fine WHere and how a Fine levied by a Feme-Covert shall be set aside and where the Commissioner who took it may be fined by the Court 30 A Fine acknowledged before the Revolution and Writ of Covenant sued out after allowed good 47 48 A Right to an Estate by Extent barr'd by a Fine and Non-claim 329. So also the Right to a Term for years ibid. Secus where a Statute is assigned in Trust to wait upon the Inheritance 330 Fine Customary What Customary Fine between Lord and Tenant shall be allow'd good upon Alienation 134 135 Forfeiture See Office Generally where a Statute gives a Forfeiture and not said to