is not sufficient by the Rule of the Act of 25. unless confirmed by the King It was otherwise in the Popes case before the Act. There are many Presidents in Mr. Noy's Book where in like Obj. 2 case the King after the death of a Bishop holding in Commendam after his translation to another See and after his resignation hath presented All those Presidents are since the Twentieth of the Queen which Answ 1 cannot alter the Law 2. Who knows in the cases of death whether those Presentations were not by consent of the Patrons and doubtless there are Presidents wherein the Patrons did present else this Question had been earlier But Judicandum est legibus non exemplis Vpon Translation of a Bishop holding a Commendam in the Answ 2 Retinere as long as he continued Bishop there the King ought to present for the Dispensation is determined upon his remove and then is as if it had not been and a Dispensation gives no property to the Living nor takes away any But where property is given to the Living as by Presentation Institution and Induction or by Grant as in Appropriations Hob. Colts and Glovers Case and sometimes otherwise by the King such presenting or granting for a year or six is to grant it during life As an Atturnment cannot be for a time nor a Confirmation nor a Denization or Naturalization and the like but such Acts are perfect Manwarings Case 21 Jac. Crook f. 691. as they may be notwithstanding Restriction to time as is agreed well in Manwaring's Case I shall say nothing of the case of Resignation as not being in the present Question Judgment was given by the Opinion of the whole Court That the Avoidance was by Death not by Cession Hill 19 20 Car. II. C. B. Rot. 1785. Baruck Tustian Tristram Plaintiff Anne Roper Vicountess Baltinglass Vidua Defendant in a Plea of Trespass and Ejectment THe Plaintiff declares That the Defendant vi Armis entred into 20 Messuages 1000 Acres of Land 200 Acres of Meadow and 500 Acres of Pasture cum pertinentiis in Thornbury Shalston Evershaw Oldwick Westbury and Looffield and into the Rectory of Thornbury which Thomas Gower Kt. and Baronet and George Hilliard to the said Baruck demis'd the First of Octob. 19 Car. 2. Habendum from the Feast of St. Michael the Arch-angel last past for the term of Five years next ensuing into which he the said Baruck the same day entred and was ousted and ejected by the Defendant ad damnum 40 l. To this the Defendant pleads Not Guilty And the Jury have found specially That the Defendant is not guilty in all those Tenements besides 5 Messuages 400 Acres of Land 50 Acres of Meadow 100 Acres of Pasture cum pertinentiis in Thornbury Shalston Evershaw Oldwick and Westbury and in the Rectory of Thornbury and besides in one Messuage 100 Acres of Land 50 Acres of Meadow and 100 Acres of Pasture cum pertinentiis in Looffield And as to the Trespass and Ejectment aforesaid in the said five Messuages c. and in the Rectory of Thornbury the Iury say upon their Oath that before the said Trespass and Ejectment suppos'd 22 Junii 12 Jac. Sir Arthur Throgmorton Kt. was seis'd in Fee of the aforesaid Rectory and Tenements last mentioned and of the said Premisses in Looffield and so seis'd A certain Indenture Tripartite was made 22 Junii 12 Jac. between him the said Sir Arthur of the first part Edward Lord Wootton Augustine Nicholls Kt. Francis Harvey Esq and Rowly Ward Esq of the second part and Sir Peter Temple and Anne Throgmorton Daughter of the said Sir Arthur of the third part To this effect That the said Sir Arthur Throgmorton did covenant and promise with the said Lord Wootton and Sir Augustine Nicholls in consideration of Marriage to be had between the said Sir Peter Temple and the said Anne and other the considerations mentioned in the said Indenture by Fine or Fines before the Feast of St. Michael the Arch-angel next ensuing or other good Conveyance to be levied by him and the said Dame Anne his wife to the said Lord Wootton c. The scite and precinct of the Priory of Looffield the Rectory of Thornbury and divers Mannors Lands and Tenements in the said Indenture mentioned several yearly Rents therein mentioned and all other his Lands in the Counties of Northampton Buckingham and Oxford at any time belonging to the said Priory to convey and assure To the use of himself for life without Impeachment of Waste Then to the use of Dame Anne his Wife Then to the use of the said Sir Peter Temple and the said Anne his Wife during their natural lives and the longer Liver of them and after both their Deceases To the use of the first Son of the Body of Anne by the said Sir Peter begotten and of the Heirs Males of the Body of the said first Son so to the sixth Son Then to the use of all other Sons in succession in like manner of the Body of Anne begotten by the said Sir Peter And for default of such Heirs To the use of all the Issues Female of the Body of the said Anne by the said Sir Peter begotten and the Heirs of the Bodies of the said Issues Female For default thereof To the first Son of the said Anne by any other Husband and his Heirs Males and so to the tenth In like manner to the Issues Female of the Body of Anne with divers Remainders over A Proviso That it be lawful for Sir Arthur at all times during his life to lett set and demise all or any the said Premisses aforesaid which at any time heretofore have been usually letten or demised to any person or persons for and during the term of One and twenty years or under in possession and not in Reversion or for or during any other number of years determinable upon one two or three Lives in Possession and not in Reversion reserving the Rents therefore now yielded or paid or more to be yearly due and payable during such Lease and Leases unto such person and persons unto whom the said Premises so to be demised shall come and be by virtue of these Presents if no such demise had been made so long as the same Lessees their Executors and Assigns shall duly pay the Rents and perform their Conditions according to the true meaning of their Indentures of Lease and commit no waste of and in the things to them demised The like Proviso verbatim for Sir Peter Temple and Anne his Wife to make like Leases during their Lives and the Life of the longer liver of them after the death of Sir Arthur and Dame Anne his Wife That a Fine was accordingly levied c. to the uses aforesaid They find that all the Messuages Lands Tenements and Rectory in the Declaration mentioned are compris'd in the said Indenture Tripartite They find the death of Sir Arthur Throgmorton and Anne his Wife 2. Septemb.
all Lands Tenements Meadows Tithe Corn and Grain Hay and Wool and all Profits to the said Parsonage belonging And also the Vicaridge of Hooknorton aforesaid with the Appurtenances And all Lands Tithes Profits to the said Vicaridge belonging And also a Pasture called Prestfield with the Appurtenances in Hooknorton aforesaid And all Commons of Sheep call'd by the name of their Founders Flock And the Hay of a Meadow call'd Brown-mead with the customary works thereto pertaining And the Tithe and Duty of a Mead call'd Hay-mead in Hooknorton aforesaid Except and reserved to the said Abbot and Covent and their Successors All Tenants and Tenantries then or after to be set by Copy of Court-Roll All Fines Reliefs Escheats Herriots Amerciaments Pains Forfeits and all Perquisites of Courts Barons and Leets To have and to hold the said Farm or Mannor and all other the Premisses with the Appurtenances Except before excepted to the said Croker his Executors and Assigns from the Feast of the Annunciation of our Lady last past before the Date of the said Deed Indented for the term of Eighty years rendring to the said Abbot Covent and their Successors yearly during the said term For the said Mannor and Farm 9 l. For the said Parsonage 22 l. 2 s. For the Common of Sheep Hay and Custom-works of Brown-Mead 5 l. For the Wool 12 l. For Prest-field 6 l. 13 s. 4 d. For the Vicaridge 6 l. 13 s. 4 d. of lawful mony c. at the Feasts of St. Michael the Arch-angel the Annunciation of our Lady by equal portions As by the same Deed Indented amongst divers other Covenants and Grants more plainly appeareth And where also as the said Bishop by his other Deed Indented Dated 8. October 1 Edw. 6. hath demis'd and to farm lett unto the said John Croker all that his Mannor of Hooknorton aforesaid with all Messuages Tofts Cottages Orchards Curtilages Lands Tenements Meadows Leasowes Pastures Feedings Commons waste Grounds Woods Underwoods Waters Mills Courts-Leets Fines Herriots Amerciaments Franchises Liberties Rents Reversions Services and all other Hereditaments whatsoever they be set lying and being in Hooknorton aforesaid in the said County with the Appurtenances Except certain Lands and Tenements in the said Town in the Tenure of the said John Croker for certain years then enduring To have and to hold All the said Mannor of Hooknorton and all other the Premisses with the Appurtenances Except before excepted to the said John Croker and his Assigns from the Feast of St. Michael the Arch-angel last past before the Date of the said latter Deed Indented to the full end of the term of Ninety years from thence next ensuing Rendring to the said Bishop and his Successors yearly during the said term Eleven pounds four shillings and nine pence at the Feasts of the Annunciation and St. Michael the Arch-angel by equal portions as by the said latter Deed among other Covenants and Grants more plainly appears The Reversion of all which Premisses are in the said Bishop and to him and his Successors do belong as in Right of his Church Now witnesseth That the said Bishop hath demis'd Ind. 1 Mar. and to Farm lett and by these Presents doth demise c. to the said John Croker All the said Mannor and Farm of Hooknorton together with all Messuages c. And all and singular other the Premisses with the Appurtenances in the said several Indentures specified and contain'd To have and to hold the said Premisses contain'd in the said first Indenture to the said John Croker his Executors and Assigns from the end expiration and determination of the said term specified in the said first Indenture unto the end and term of Ninety years next ensuing yielding therefore yearly to the said Bishop and his Successors for the said Premisses specified in the said first Indenture such and like Rents as in the said first Indenture are reserv'd at the same daies and times and To have and to hold All the Premisses specified in the said latter Indenture from the end expiration and determination of the said term specified in the said latter Indenture until the end and term of Ninety years then next ensuing Rendring yearly for the Premisses in the said latter Indenture specified such and like Rent as is reserv'd by the said latter Indenture and at the same days and times Then follows a Clause of Distress if the Rent be behind for a Month. And if the said several yearly Rents reserved by these Indentures or any of them be unpaid in part or in all by the space of one quarter of a year after any the said Feasts at which the same ought to be paid and be lawfully demanded and no sufficient Distress upon the Premisses whereupon the same is reserved to be found Then to be lawful for the said Bishop and his Successors into such of the Premisses whereupon such Rents being behind is or are reserved to re-enter and to have as in their former estate And the said Jurors further say That the aforesaid Indenture of Demise afterwards the Tenth of May Anno 1 Mar. aforesaid by the then Dean and Chapter of Oxford under their Common Seal was confirm'd and find the tenor of the Confirmation in haec verba They further find That the said Two hundred Acres of Pasture at the time of making the said Indenture and at the time of the Trespass and Ejectment were and yet are parcel of the said Mannor of Hooknorton They further find That the Rent for all the said demis'd Premisses reserv'd by the said Indenture for one whole half year ended at the Feast of Saint Michael the Arch-angel 1643. was behind and unpaid and that Robert late Bishop of Oxford the Nine and twentieth and Thirtieth Day of December 1643. into the Parsonage House then and by the Space of Forty or Fifty years before reputed and call'd the Mannor-house And that he then at the said Parsonage-house by the space of One hour next before the Sun-setting of both the said two daies remain'd and continued until and by the space of One hour after Sun-setting of both daies demanding and then did demand the Rent for the half of the year aforesaid They further say That there was no sufficient Distress upon the Premisses at the time of the demand of the said Rent thereupon And that the said Bishop the said Thirtieth Day of December 1643. aforesaid into the said Premisses enter'd They further say That all the Right State and Title term of Years and Interest of and in the Mannor Tenements Rectory and other the said Premisses by virtue of the said Indenture of Demise by the said late Bishop as aforesaid granted to the said John Croker by mean Assignments came to the said Thomas Wise That by virtue of the said several Assignments the said Thomas Wise afterwards the Fourth of January 1667. into the Premisses enter'd and was possessed for the Residue of the term of years prout Lex postulat That he so possessed
recited therein but in part for after as much as is recited of either Deeds respectively is said as more plainly appears among other Grants and Covenants in the said Deed. And if other Grants were in the Deed of 29 H. 8. besides those recited then the express Grant of the very Mannor of Hooknorton might be one of those Grants which is urg'd not to be granted because not recited in 29 H. 8. nominally and if so here being two former demises of the Mannor mentioned in the Indenture 1 Mar. and for different terms the one 29 H. 8. for Eighty years the other 1 E. 6. for Ninety years and so expiring at different terms it is uncertain from which Expiration the demise of the Mannor 1 Mar. shall Commence and consequently the demise having no certain Commencement will be void by the Rector of Chedington's Case 1. Rep. But admitting the Mannor not demis'd by 29 H. 8. yet the Jury finding the demise 1 Mar. Habendum à fine prioris dimissionis and not prioris dimissionis ejusdem Manerii it is uncertain still Whether the Habendum à fine prioris dimissionis as the Jury have found it shall referr to the end of the demise 29 H. 8. or to that of 1 E. 6. both of them being prior demises mentioned in the Indenture 1 Mar. for if only the demise 29 H. 8. had been mentioned in that of 1 Mar. the demise 1 Mar. for its Commencement must of necessity have referr'd to the Expiration of the demise by 29 H. 8. though the Mannor pass'd not by it and it will not then change the uncertainty because the demise 1 E. 6. is mention'd Nor shall you to this finding of the Jury suppose a different finding from their finding barely the Indenture of 1 Mar. call in aid any thing from the Recitals in 1 Mar. and so make up a Medley Verdict partly from what the Jury find expresly and partly from what is only recited and not otherwise found As for instance The Jury find the Mannor demis'd for Ninety years Habendum from the end of a former demise mention'd 1 Mar. This Verdict in it self finds no Commencement of the term by not finding from the Expiration of which term it begins nor find no Rent reserv'd But the demise of 1 Mar. as to them must be made out from the recitals of Deeds not found to be real which is a way of confounding all Verdicts When the Jury say The Mannor of Hooknorton was demis'd à fine prioris dimissionis in Indentura predict mentionat for Ninety years they do not say à fine prioris dimissionis ejusdem Manerii So as if nothing else were the former Indenture mention'd might be of the Vicaridge or any other thing and not at all of the Mannor and yet by the Indenture of 1 Mar. the demise of the Mannor was to Commence from the Expiration of such former demise whatever was demis'd by it But the Indenture of 1 Mar. demiseth all the Premisses contain'd in the first Indenture Habendum from the Expiration of the term Ergo If the Mannor be not compris'd in the first Indenture it cannot be demis'd by 1 Mar. from the Expiration of the first term in the first Indenture But admitting this Who can say the Mannor of Hooknorton is not compris'd in the first Indenture For first What if only part of the first Indenture is recited and not all in the Deed of 1 Mar. and so the Mannor omitted in the recital though it were compris'd in the Indenture of 29 H. 8. and perhaps the Jury might if that Indenture were produc'd to them see it was compris'd in the Indenture though not recited to be so 2. What if the Indenture of 29 H. 8. were mis-recited in 1 Mar. and instead of the Mannor the word Mansion recited 3. It is apparent That the Indenture of 29 H. 8. was not recited nor pretended to be recited verbatim in that of 1 Mar. Because after so much of the Indenture of 29 H. 8. as is recited in that of 1 Mar. it is said as by the said Indenture viz. 29 H. 8. among divers other Covenants and Grants more plainly appeareth So as there were other Grants in the said Indenture of 29 H. 8. than are recited in 1 Mar. and the Grant of the Mannor by name might be one of them 4. How can it appear to us but that the Jury did find the Mannor of Hooknorton to be expresly demis'd by the first Indenture if any thing were demis'd by it If then the Jury did conceive the Mannor of Hooknorton was demis'd by the first recited Indenture as most probably they did When they find That by the Indenture of 1 Mar. the said Mannor was convey'd à fine prioris dimissionis in Indentur praedict mentionat And there are mentioned in the Indenture of 1. Mar. two former demises of the Mannor viz. that of 29 H. 8. for a term of Eighty years and that of 1 E. 6. for a term of Ninety years there is no certain Commencement of the term of 1 Mar. because it is as uncertain from which of the two former demises it takes his Commencement as if ten former demises were mention'd and for different terms and then it could Commence from neither of them But admit it should be taken to Commence from the end of the term of 1 E. 6. and not from the other because in that term if any such were the Mannor is without scruple demis'd yet we must remember the present Question is not of the Mannor but of Two hundred Acres parcel of the Mannor And in the Lease of 1 E. 6. though the Mannor be demis'd yet there is an Exception of certain Lands and Tenements in the Town or Vill of Hooknorton which Croker then held for certain years enduring How doth it appear That the Two hundred Acres in question were not those Lands excepted out of the demise of 1 Mariae For though they were parcel of the Mannor they might be severally demis'd and excepted and though it be found Cok. Litt. 325. a. That at the time of the Demise and at the time of the Trespass the Two hundred Acres were parcel of the Mannor it is not found that they were not part of the Lands in the Vill of Hooknorton at the time of the demise made 1 Mar. then in Lease to Croker and excepted out of the said demise of 1 Mar. for if they were the Plaintiff makes no Title to them If the Issue be 15 Jac. B.R. between Ven◠and Howel whether by Custome of the Mannor a Copyhold is grantable to Three for the Life of Two and it be found that by the Custome it is grantable for Three Lives that is not well found for it is but an Argument Rolls 693. Title Tryal That because a greater Estate may be granted a less may and a new Venire Facias granted because the matter in Fact whereupon the Court was to judge and was the point of
a House Barns and Tithe of Woolney and thereof seis'd in the right of his Prebendary makes a Lease to Astly of the Prebend una cum the Glebe House Barn and Tithe for Three Lives rendring the accustomed and ancient Rent of Five pounds Twelve shillings Astly demiseth to Taverner the House Glebe and Barn for a year reserving Twenty shillings and dies the Cestuy que vies living As I concluded before Taverner is Occupant of the House Barn and Glebe-land and consequently lyable to pay the whole Rent being Five pounds twelve shillings yearly though the Land House and Barn be found of the yearly value of Twenty shillings only but because the Rent cannot issue out of Tithes or things that lye in Grant it issues only out of the House Barn and Land which may be distrain'd on 2. If Taverner being Occupant of the Land shall not have the Tithes which remain'd in Astly according to his Lease for three Lives at the time of his death and whereof by their nature there can be no direct Occupancy It follows that the Lease made by Doctor Mallory is determin'd as to the Tithe for no other can have them yet continues in force as to the Land and House and all the Rent reserv'd which seems strange the Land and Tithe being granted by the same Demise for three Lives which still continue yet the Lease to be determined as to part 3. Though the Rent issue not out of the Tithe yet the Tithe was as well a Consideration for the payment of the Rent as the Land and Houses were and it seems unreasonable that the Lessor Doctor Mallory should by act in Law have back the greatest Consideration granted for payment of the Rent which is the Tithe and yet have the Rent wholly out of the Land by act in Law too which cannot yield it 4. Though Doctor Mallory could not have reserv'd a Rent out of the Tithe only to bind his Successor upon a Lease for Lives more than out of a Fair though it were as the ancient Rent and had been usually answered for the Fair as is resolv'd in Jewel Bishop of Sarum's Case Jewell's Case 5 Rep. Yet in this Case where the Tithe together with Land out of which Rent could issue was demis'd for the accustomed Rent the Successor could never avoid the Lease either in the whole or as to the Tithe only 13 Eliz. c. 10. This seems clear by the Statute of 13 Eliz. cap. 10. which saith All Leases made by any Spiritual or Ecclesiastical persons having any Lands Tenements Tithes or Hereditaments parcel of the Possessions of any Spiritual Promotion other than for One and twenty years or three Lives whereupon the accustomed yearly Rent or more shall be reserv'd shall be void Cokes Litt. f. 142. a. f. 144. a. Whence it is apparent this Statute intended that Leases in some sense might be made of Tithes for One and twenty years or Three Lives and an ancient Rent reserv'd but of a bare Tithe only a Rent could not be reserv'd according to Jewell's Case for neither Distress nor Assise can be of such Rent though an Assise may be de Portione Decimarum as is clear by the Lord Dyer 7 E. 6. and the difference rightly stated Therefore a Lease of Tithe and Land out of which a Rent may issue and the accustomed Rent may be reserved must be good within the intention of the Statute or Tithe could in no sense be demis'd 5. Taverner the Lessee being Occupant here by his possession becomes subject to the payment of the Rent to Waste to Forfeiture Conditions and all things that Astly the Lessee or his Assignee if he had made any had been subject to Also Coke's Litt. 41. He must claim by a que Estate from Astly he must averr the Life of Cestuy que vie so as he becomes to all intents an Assignee in Law of the first Lessee 6. Without question the Occupant being chargeable with the Rent shall by Equity have the Tithe which was the principal Consideration for payment of the Rent when no man can have the benefit of the Tithe but the Lessor Doctor Mallory who gave it as a Consideration for the Rent which he must still have Therefore I conceive the Reason of Law here ought necessarily to follow the Reason of Equity and that the Occupant shall have the Tithe not as being immediate Occupant of the Tithe whereof no occupancy can be but when by his possession of the Land he becomes Occupant and the Law casts the Freehold upon him he likewise thereby becomes an Assignee in Law of Astly's Lease and Interest and consequently of the Tithe An ancient Rent reserv'd within the Statute of 1. or 13. of the Queen upon a Lease of One and twenty years or Three Lives is by express intention of that Statute a Rent for publique use and maintenance of Hospitality by Church-men as is resolv'd in Elsemere's Case Elsmers C. 5. Rep. the 5. Rep. and therefore if the Lessee provide not an Assignee to answer the Rent to the Successors of the Lessor for the ends of that Law the Law will do it for him and none fitter to be so than the Occupant in case of a Lease pur auter vie as this is And if the Occupant being Assignee hath pass'd all his Estate and Interest to the Plaintiff hath good cause of Action for the Tithe converted by the Defendant Pasch 22 Car. II. Judgment for the Defendant Three Justices against the Chief Justice Trin. 20 Car. II. C. B. Rot. 2043. Harrison versus Doctor Burwell In a Prohibition for his Marriage with Jane the Relict of Bartholomew Abbot his Great Uncle The Questions are Quest 1 WHether the marriage of Thomas Harrison the Plaintiff with Jane his now wife being the Relict of Bartholomew Abbot his great Vncle that is his Grand-fathers Brother by the Mothers side be a lawful marriage within the Act of 32 H. 8. cap. 38 Quest 2 Admitting it to be a lawful marriage within the meaning of that Act Whether the Kings Temporal Courts are properly Judges of it because the unlawfulness or lawfulness of it by that Act doth depend upon its being a marriage within or without the Levitical Degrees For if within those Degrees it is not a lawful marriage by that Act. And the right knowledge of marriages within or without those Degrees must arise from the right knowledge ot the Scriptures of the Old Testament specially the Interpretation of which hath been and regularly is of Ecclesiastick Conizance and not of Lay or Temporal Conizance in regard of the Language wherein it was writ and the receiv'd Interpretations concerning it in all succession of time Quest 3 Admitting the Kings Temporal Courts have by that Act of 32. or any other special Conizance of the Levitical Degrees and of marriages within them And though this be no marriage within the Levitical Degrees it being articled in general to be an Incestuous marriage
the Lords of Wales if it be not of Lands between the Lords themselves There is an ancient Book remarkable to the same purpose 8 E. 3. Term. Mich. 59. speaking of the Common Pleas This Court hath more Conuzance of Pleas of the Welch Shires than it hath of Pleas of the County of Chester for the Pleas of Quare Impedits and of Lands and Tenements held of the King in chief in Wales shall be pleaded here and they shall not be so of the County of Chester Fitz. Jurisdiction p. 34. 6 H. 5. Land in Wales immediately held of the King is pleadable in England per Haukford 6 H. 5. no such Book at large The Law and doubtless the Ordinance made by Parliament mentioned in 18 E. 2. concerning Lordships Marchers was the same concerning Land held in chief of the King and are mentioned in the Books as synonimous and were so for all Lordships Marchers were held from the Crown in chief nor could the King probably have other Lands in chief in Wales beside the Lordships Marchers for all was either of Lordships Marchers or Lands belonging to the Principality and held from it and not from the Crown in chief To this purpose there is an ancient Statute 28 E. 3. very convincing 28 E. 3. c. 2. All the Lords of the Marches of Wales shall be perpetually Attendants and annexed to the Crown of England as they and their Ancestors have been at all times before this in whose hands soever the same principality be or shall come And they being no part of the Principality and consequently not under the Statute and Ordinance of Wales 12 E. 1. It was provided by a Law That they should be impleaded in England and the Summons and Tryal to be by the Sheriff of and in the next adjoyning County Accordingly you find the practice was by many ancient Cases remembred but the Year-Books of E. 2 being never printed wherein only that Statute is mentioned otherwise than in Fitz-herbert's Abridgment and the Statute it self not extant gave occasion to men obiter in the time of H. 6. H. 7. long after to say that such impleading for matters arising in Wales in the Courts of England and the Tryals to be in the adjacent Counties because they knew not it came to pass by Act of Parliament was by the Common Law on which had they reflected with seriousness they had found it impossible For that Tryals concerning Lands in Wales quatenus particularly Wales after it became of the Dominion of England should by the Common Law be differing from other Tryals in England and in the adjacent Counties could not possibly be for Wales was made of the Dominion of England within time of memory viz. 12 E. 1. and whatever Tryal was at Common Law must be beyond all memory Therefore no such Tryal for Land in Wales particularly could be by the Common Law It remains then That if such were at Common Law it must be for Lands in all Dominions of the Acquisition of England consequently for Ireland Garnsey and Jersey Gascoign Guyen Calais Tournay as well as Wales but it was never in practice or pretence that any such Tryals should be for any Land in these places Therefore it is evident That it was and it could be no otherwise than by Act of Parliament that Wales differed from the other Dominions belonging to England in these Tryals Nor was it by any new Law made by E. 1. or any his Successors by the Clause in the end of the Statute of Rutland which hath nevâ—r been pretended For by that Clause power was given to change Laws simply for Wales but this way of Tryals changes the Law of England in order to Tryals for Land in Wales which that Clause neither doth nor could warrant Besides this new way of Tryals concerning Lordships Marchers held in chief from the King the Books are full that in Quare Impedits for disturbance to Churches in Wales the Summons and Tryal must be by the Sheriff of and in the adjacent Counties which is often affirmed and agitated in the Books but with as much confusion and as little clearness as the other concerning Land To this purpose is the Case before 8 E. 3. the Pleas of Quare Impedits 8 E. 3. 59. and of Land and Tenements held in chief of the King in Wales shall be pleaded there A Quare Impedit brought by the King against an Abbot 15 E. 3. Fitz. Jurisdiction p. 24. exception taken that the Church was in Wales where the Kings Writ runs not non allocatur for the King was party by the Book as a reason A Quare impedit cannot be brought in Wales 11 H. 6. f. 3. A B. because a Writ to the Bishop cannot be awarded for they will not obey it and so was the Opinion in that Case of Danby Morton and Newton that Quare Impedits for Churches in Wales must be brought only in the Kings Courts and the Opinion is there that the Prince could not direct a Writ to the Bishops in Wales upon Quare Impedits there brought So is the Book of 30 H. 6. of Churches in Wales 30 H. 6. f. 6. B. a Quare Impedit shall be brought in England the Case was cited before concerning Tryals of Lands in Wales A Quare Impedit was brought in the County of Hereford of a disturbance in Wales to present to a Church 35 H. 6. f. 30. A B. exception was taken by Littleton only to this that the Plaintiff did not shew in his Count or Writ that Hereford was the next adjoyning County but by the Book it was well enough for if Hereford were not the next adjoyning County the Defendant might shew it but no exception was taken to the bringing of the Writ into the County of Hereford if it were the next County 36 H 6. f. 33. A B. Quare Impedits shall be brought here of Churches in Wales and shall be sued in the Counties adjoyning for that the Justices read it Bishops will not obey any man there If a Quare Impedit be brought here of a Church in Wales it shall be tryed in the County adjoyning The reason there given is the same as in many other Books Car nous avomus power ad escrier al Evesque mes ils voylont parront ceo disobeyer It is manifestly mis-printed Car nous navomus power ad escrier al Evesque mes ils voylont parront ceo disobeyer which is not sense By these Books and many other it is clear Quare Impedits were formerly brought in England for Churches in Wales as real Writs were for Land and the Tryal was in the next adjoyning English County But as those Tryals for Land were only for Lordships Marchers held of the King in chief or part of them and that by special Act of Parliament as hath been opened So the Quare Impedits brought in England and Tryals there had upon them were not for all Churches in Wales
this Argument by saying the Dispensations in cases of Plurality were not alike with that of retaining the former Benefice when the Incumbent was created Bishop because in the case of Plurality there was no actual voidance and consequently no title to the Patron to present before Deprivation and that the Dispensation prevented the Deprivation which was a Spiritual Act wherewith the Patron had not to do and by a Consequent only prevented the voidance It is resolv'd in Holland's Case Digby's Case Hollands Case 4. Rep. Digby's Case 4. Rep. and many others that the Patron may present assoon as the Incumbent is Instituted in a second Living without deprivation and that the Law was anciently so therefore that evasion is not material Another answer hath been likewise offered and passeth in the New Books for current that in the case of Pluralities the voidance is by the Canon Law and therefore may be dispensed with by the same Law but in the case of a Bishop made the voidance is by the Common Law If Canon Law be made part of the Law of this Land then is it as much the Law of the Land and as well and by the same Authority as any other part of the Law of the Land And if it be not made the Law of the Land then hath it no more effect than a Law of Utopia therefore the Canon Law in force here is Law of the Land Besides their meaning is to be learn'd who say an Incumbents Benefice made a Bishop is void by the Common Law and not by the Canon Law The words of Thyrning in that case 11 H. 4. are who was then Chief Iustice 11 H. 4. f. 60. b. Da. Rep. f. 81. a. f. 68. b. I suppose that when a man Benefic'd is made a Bishop it is by the Law of holy Church that his Benefice becomes void and the same Law which gives the voidance may cause that it shall not be void and that concerns the power of the Apostle The Common Law doth not prohibit Pluralities nor make a voidance of his Benefice when the Incumbent is Bishop but the ancient Ecclesiastical Law of England Obj. 3 11 H. 4. f. 77. a. per Hill It is a Contradiction that the Incumbent being the Bishops Subject and the Bishop his Soveraign should be united the Servant qua Servant may as well be Master the Tenant qua Tenant Lord the Deputy the Deputor the Delegator the Delagated which is impossible Answ It is a Contradiction that a person Subject being so should not be Subject but no contradiction that a person Subject should cease to be so the subjection of the Incumbent ceaseth when the Rectory is in the Bishop the Deputy is not when the principal Officer executes the office in person and relation of Lord and Tenant destroy'd when the Lord occupies the Land himself If an Act of Parliament should enable every Bishop to hold his former Benefices no contradiction would follow nor doth now by the Dispensation And note all these Reasons deny the Popes power formerly the Arch-bishops now and the King 's also for they are not Reasons against the power of the party dispensing but that the Subject matter is capable of no dispensation There is no inconsistence for a Bishop to be an Incumbent for he is a Spiritual Corporation and being Patron of a Living might and may have it appropriate that is to be for him and his Successors perpetual Incumbents Da. Rep. f. 80. b. The Rectories of Eastmeane and Hambleden are appropriate ad Mensam of the Bishop of Winchester and many others in England and Ireland so appropriated Selden Hist of Tithes â— 6. par 3. f. 8â— b. c. 9. par 2. f. 253. Every Bishop many hundreds of years after Christ was universal Incumbent of his Diocess received all the profits which were but Offerings of Devotion out of which he paid the Salaries of such as officiated under him as Deacons or Curates in places appointed Quest 2 Second Question Whether the Pope formerly used to dispense in such a case and consequently the Arch-bishop now can by the Stat. of 25 H. 8. c. 21 1. Bishop of St. Davies Case The particular dispensation granted to the Bishop of St. Davies in 11 H. 4. is a full instance nor was it in the Argument of that case insisted that the Pope could not dispense with a Bishop to retain or receive a Benefice But the sole Question was Whether in that particular case because the Benefice to be retain'd belong'd to the presentation of a Church-man viz. the Bishop of Salisbury the Dispensation did not amount to a provision and so was within the Statute of Provisions 25 E. 3. 2. By the Statute of 28 H. 8. it appears the Bishop of Rome did grant Faculties and Dispensations to the King's Subjects 28 H. 8. c. 16. as Pluralities Unions Tryalities Appropriations Commendams Exemptions where Commendams are enumerated and by that Act all granted by the Pope are made void but to be renew'd in the Chancery 3. Procuring Commendams were so frequent in Ireland 7 E. 4. c. 2. that a special Act of Parliament was there made 7 E. 4. against all such as should purchase Bulls for any Commendam to put them out of the Kings protection 4. A Bastard instituted and inducted before Deprivation 11 H. 4. f. 78. a. f. 60. a. 11 H. 4. f. 76. b. a Secular Priest before he became regular whereof many were in England and Thyrning saith he knew that Edmond Monk of Berry who was with Edward the Third held many Benefices though a Monk and Pluralities were ordinarily dispensed with by the Pope 5. 11 H. 4. f. 38. a. Hankford saith he hath seen that the same man was Abbot of Glastenbury and Bishop of another Church simul semel Horton 11 H. 4. f. 76. a. The Pope may grant that one man may hold three Bishopricks at a time which Hankford agreed if with consent of the Patrons For if without their consent it was not dispensing to hold them but granting away the property of the Patrons which a Dispensation could not Henry Beaufort Vncle to Henry the Sixth Da. Rep. f. 80. 77. b. had a Dispensation to retain the Bishoprick of Winchester being Cardinal but it was ineffectual because obtained after he was Cardinal Cardinal Woolsey obtained before he was Cardinal a Dispensation to hold the Arch-bishoprick of York and the Abbey of St. Albans together with his Cardinalship Lindwood Titulo de Praebendis cap. Audistis Lindwood f. 100. b. Potestas quae secundum antiqua jura dabatur Episcopis ad dispensandum super pluralitate Beneficiorum restricta est saltem in dignitatibus Beneficiis curatis sed circa beneficia simplicia bene poterunt Episcopi dispensare And in the same Gloss In dignitatibus curatis solus Papa dispensat Authority in the point that a Rector of a Church dispens'd with according to 25 H.
1 Car. 1. and that Sir Peter Temple entred and was seis'd for term of his life They find he had Issue of the Body of Anne his Wife Anne the now Defendant Daughter and Heir of the Bodies of the said Sir Peter and Anne his Wife and that Anne Wife of Sir Peter died 2. Sept. 3 Car. 1. 1. They find a Demise by Sir Peter Temple to Sir Thomas Gower and Hillyard of the Rectory of Thornbury 9. Maii 23 Car. 1. for 30 l. Rent 2. They find a Demise by him to them of a Messuage in Thornbury 9. March 23 Car. 1. of Woolheads Tenement for 16 l. 13 s. 4 d. Rent 3. They find a Demise to them 9. March 23 Car. 1. of Land in Thornbury held by Roger Rogers Rent 13 l. 6 s. 8 d. 4. They find a Demise 9. March 23 Car. 1. of Nelson's Tenement in Thornbury Rent 16 l. 13 s. 4 d. at Michaelmass and Lady-day 5. They find a Demise 13. March 23 Car. 1. of Lands in Shalston Eversham and Oldwick held formerly by William Hughes Rent 15 s. 4 d. These respective Leases were made for the term of 90 Years determinable upon the Lives of the Lady Baltinglass the Defendant Sir Richard Temple's and the Life of a younger Son of Sir Peter Temple as long as the Lessees should duly pay the Rents reserved and commit no waste according to the Limitation of the Proviso in 12 Jac. which is recited in the respective Leases 6. Then the Iury find quod predicti separales reditus super praedictis separalibus Indenturis Dimissionis reservat fuerint reservat reditus de super premissis praedictis 22. dii Junii Anno Jacobi Regis 12. supradict Et quod praedict separales reditus c. in forma praedict reservat ad Festum Sancti Michaelis Arch-angeli quod fuit 1653. debit non solut sive oblat suerint super idem Festum sed quod iidem reditus infra unum mensem prox post Festum praedictum praefat Annae Roper Defend solut fuerunt 7. They find a Demise to them of the Scite and Priory of Looffield 9. March 23 Car. 1. at the Rent of 100 l. payable equally on Lady-day and Michaelmass-day demised by Sir Arthur Throgmorton and Anne his Wife 20th of May 12 Eliz. 1570. to William Hewer for 21 years Rent 100 l. Lady-day and Michaelmass with some Exceptions for the like term of 90 years and upon like Limitations as in the former Leases The Iury find quod Tenementa praedicta cum pertinentiis in Looffield supranominat tempore dict Eliz. nuper Reginae Angl. fuerint dimissa ad redditum 100 l. pro termino 21. Annorum sed dimissio terminus 21 Annorum expirati fuerunt Et dicunt quod eisdem Juratoribus non constabat quod dicta Tenementa in Looffield praedict 22 die Junii 12 Jac. aut per spatium 20 Annorum tunc antea fuerint dimissa Et dicunt ulterius quod 50 l. pro dimidio unius Anni de praedictis Tenementis in Looffield ad Festum Sancti Michaelis Arch-angeli quod fuit Anno Dom. 1653. debit oblatae fuerint Et quod praedicta Anna Roper ante Festum Annunciationis prox sequent intravit They find that Gower and Hillyard claiming the said 5 Messuages 400 Acres of Land 50 Acres of Meadow and 100 Acres of Pasture in Thornbury Shalston Evershaw Oldwick and Westbury As also the said Messuage and other the Premisses in Looffield and the Rectory of Thornbury before the supposed Trespass and Ejectment entred upon the Possession of the Lady Baltinglass and so possessed made a Lease to the Plaintiff by virtue of which he entred and was possessed until outed by the Defendant as by the Declaration But whither the Defendant be culpable they refer to the Court. Vpon this Verdict the Questions are two 1. The first Whither the Defendants entry into the six Tenements leased to Gower and Hillyard for not payment of the Rent reserv'd upon the day of payment were lawful or not And as to that the Court is of opinion that the Defendants Entry was lawful for that the Leases were not deriv'd out of the Estate of Sir Peter Temple who was but Tenant for life and had no Reversion in him but out of the Estate of Sir Arthur Throgmorton by Limitation of the Proviso in the Deed 12 Jac. so as the Leases were not Leases upon Condition to pay the Rent at the day to which any Demand or Re-entry was requisite for Non-payment but were Leases by Limitation and determined absolutely according to the Limitation Littl. f. 235. a. For this Littleton is express that the words quamdiu dum and dummodo are words of Limitation As if a Lease be made to a Woman dum sola fuerit or dum casta vixerit or dummodo solverit talem reditum or quamdiu solverit talem reditum so are many other words there mentioned And if there be not a performance according to the Limitation it determines the Lease But it is otherwise where a Rent is reserv'd upon Condition for there is a Contract between the Lessor and Lessee and the Law evens the Agreement between them as is most agreeable to Reason and the supposition of their Intention But in the present case Sir Peter Temple had no interest in him out of which such Leases could be deriv'd but had a power only to make them by virtue of the Proviso in Sir Arthur Throgmortons Deed and the Lessees must be subject to such Limitations as are thereby made It was agreed by the Council of the Plaintiff That it was not a Condition for payment of the Rent nor could it be but they would call it a Caution A Condition to determine a Lease or a Limitation is a Caution and a material one but such a Caution as hath no more effect than if it were not at all is a thing insignificant in Law and therefore must not supplant that which in proper terms is a Limitation and hath an effect 2. The next Question is upon the Lease of Looffield which arises upon the words of the Proviso That it should be lawful for Sir Peter Temple to demise all or any the Premisses which at any time heretofore have been usually letten or demised for the term of 21 years or under reserving the Rent thereupon now yielded or paid And the Iury finding the Lands in Looffield to have been demised 12th of the Queen for 21 years for 100 l. Rent and that that term was expired and not finding them demis'd by the space of twenty years before at the time of the Indenture 12 Jac. Whither the Lease by Sir Peter Temple of them be warranted by the Proviso there being reserv'd the Rent reserv'd by the Lease in 12. Eliz. viz. 100. l. The Court is of opinion that the Lease of Looffield is not warranted by that Proviso for these Reasons 1. It is clear Sir Arthur Throgmorton intended to exclude some Lands from being demisable by that
f. 33. Letter H. if he cannot alledge a Presentation in himself or in his Ancestor or in another person through whom he claims the Advowson and that in his Count unless it be in a special Case Then puts that special Case As if a man at this day by the Kings Licence makes a Parochial Church or other Chantry which shall be presentable if he be disturbed to present to it he shall have a Quare Impedit without alledging any presentment in any person and shall Count upon the special Matter And the Law in this is the same in Case of the King with a Common Person by all the Books and Presidents in the Books of Entry To this add the Lord Hobarts Judgment which is alwaies accurate for the true reason of the Law Know that though it be true that a Presentation may make a Fee without more as a Presentation by Vsurpation doth that you never have a Declaration in a Quare Impedit L. Hobart Digby's Case f. 101. that the Plaintiff did present the last Incumbent without more but you declare that the Plaintiff was seis'd in Fee and presented or else lay the Fee-simple in some other and then bring down the Advowson to the Plaintiff either in Fee or some other estate The reason is That the Presentment alone is militant and indifferent and may be in such a Title as may prove that this new Avoidance is the Defendants and therefore you must lay the Case so as by the Title you make the Presentation past joyn'd to your Title shall prove that this Presentation is likewise yours as well as the last Whence it follows That to Count of an Estate and Seisin without a Presentation or of a Presentation without an Estate are equally vicious and naught be it in the Case of the King or of a Common Person and was never in Example or President 2. A second necessary Premise is this and is both natural and manifest When you will recover any thing from me it is not enough for you to destroy my Title but you must prove your own better than mine For it is not rational to conclude you have no right to this and therefore I have for without a better right melior est conditio possident is regularly Hobar 1. f. 162. Colt Glovers Case ad sinem paginae 3. Every Defendant may plead in a Quare Impedit the General Issue which is ne disturba pas because that Plea doth but defend the wrong wherewith he stands charg'd and leaves the Plaintiffs Title not only uncontroverted but in effect confess'd and the Plaintiff may upon that Plea presently pray a Writ to the Bishop or at his choice maintain the Disturbance for damages Hob. Digby versus Fitzherbert f. 103. 104. But if a man will leave the General Issue and controvert the Plaintiffs Title he must then enable himself by some Title of his own to do it but yet that is not the principal part of his Plea but a formal Inducement only And therefore there is no sense if you will quarrel my possession and I to avoid your Title effectually do induce that with a Title of my own that you shall fly upon my Title and forsake your own for you must recover by your own strength and not by my weakness The Lord Hobart goes further in giving the reason of this course of Pleading in Colt and Glovers Case in the place before cited of this form of pleading in Law there is one reason common to other Actions wherein Title is contain'd to the Land in question specially which is that the Tenant shall never be receiv'd to Counter-plead but he must make to himself by his Plea a Title to the Land and so avoid the Plaintiffs Title alledg'd by Traverse or confessing and avoiding But in the Quare Impedit there is a further reason of it for therein both Plaintiff and Defendant are Actors one against another and therefore the Defendant may have a Writ to the Bishop as well as the Plaintiff which he cannot have without a Title appearing to the Court And so are the Presidents Rastal L. Intratio f. 484. a.b. when a Quare Impedit is brought against the Patron for disturbance of his Clerk not being in possession The Case in brief and the Question upon it Vpon the Record as it hath been open'd and the pleading therein between the King and the Patron upon which all the Question ariseth first I shall not make the Question to be Whether there may be a Traverse taken upon a Traverse though that Question be in truth in the Case for that is a Question rather upon terms of Art than a Questio Forensis and rising upon the naked fact of a Case depending in Iudgment I shall therefore make the Question upon this Case such as nakedly it is without involving it in any difficulty of terms The King brings a Quare Impedit and declares That Queen Elizabeth was seis'd of the Advowson of the Church of Norfield in gross as of Fee and presented and derives the Advowson to himself and the Church became void by the death of the Queens Presentee and he is disturbed to present by the Defendant Jervis The Defendant saith That before the Queen presented R. Jervis his Ancestor was seis'd in Fee of the Mannor of Norfield to which the Advowson of this Church is appendant that it became void by the death of one Squire and continued so for two years and that the Queen then presented White her Clerk by lapse That the Mannor and Advowson descended from Richard to Thomas Jervis from Thomas to Sir Thomas Jervis who granted the next avoidance to one Phineas White who presented upon the death of James White one Timothy White who was instituted and inducted and then derives the Mannor and Advowson to himself and that the Church becoming void upon the death of the said Timothy he presented the other Defendant Hunckley and Traverseth the Queens Seisin of the Advowson in gross The Law in Case of a Common Person If a Common Person brings a Quare Impedit and counts his Title to present and that he is disturbed The Defendant to counter-plead the Plaintiffs Title makes as he must a Title to himself to present and confesses and avoids or Traverseth the Plaintiffs Title 1. The Plaintiff shall never desert his own Title and by falling upon and controverting the weakness only of the Defendants Title ever recover or obtain a Writ to the Bishop though the Defendants Title do not appear to the Court to be sufficient for the unanswerable Reasons given by the Lord Hobart in the first place 2. If you will recover any thing from another man it is not enough for you to destroy his Title but you must prove your own better than his 3. There is no sense if you will quarrel my Possession or Right and I to avoid your Title effectually either by Traversing it which is denying or confessing and avoiding
to that Issue but may take another This dis-affirms the former Case when the Information is by an Informer the King must maintain his Information Note the close of this Case Ut supra per Attornatum Regis alios legis peritos I shall give the Case here mentioned in this ut supra which will I think determine the Question and clearly establish the Law according to the Difference taken That Case is likewise in Br. and cited to be as in 34 H. 8. whereof there is no Year-book neither some four years before the last Case I mentioned It is thus Br. Prerogative p. 116. 34 H. 8. Nota by Whorhood Attornatum Regis alios When an Information is put into the Chequer upon a penal Statute and the Defendant makes a Barr and Traverseth that there the King cannot wave such Issue tender'd and Traverse the former matter of the Plea as he can upon Traverse of an Office and the like when the King is sole party and intitled by matter of Record for upon the Information there is no Office found before and also a Subject is party with the King for a moiety Quod nota bene Here it is most apparent That upon an Information when the King hath no Title by matter of Record as he hath upon Office found the King cannot waive the Issue tender'd upon the first Traverse though the Information be in his own name which disaffirms the second Case in that point And for the Supernumerary reason That the King is not the sole party in the Information it is but frivolous and without weight but the stress is where the King is sole party and intitled by matter of Record I shall add another Authority out of Stamford Praerogative If the King be once seis'd his Highness shall retain against all others who have not Title nothwithstanding it be found also that the King had no Title but that the other had possession before him 37 Ass pl. 11. as appeareth in 37. Ass p. 35. which is pl. 11. where it was found That neither the King nor the party had Title and yet adjudg'd that the King should retain for the Office that finds the King to have a Right or Title to enter Stamford Praerogative f. 62. b. makes ever the King a good Title though the Office be false c. and therefore no man shall Traverse the Office unless he make himself a Title and if he cannot prove his Title to be true although he be able to prove his Traverse to be true yet this Traverse will not serve him Stamford Prerogative f. 64. b. It is to be noted That the King hath a Prerogative which a Common Person hath not for his Highness may choose whether he will maintain the Office or Traverse the Title of the party and so take Traverse upon Traverse If the King take Issue upon a Traverse to an Office he cannot in another Term change his Issue by Traversing the Defendants Title for then he might do it infinitely But the King may take Issue and after Demurr 13 E. 4. expresly and several other Books 28 H. 6. f. 2. a. or first Demurr and after take Issue or he may vary his Declaration for in these Cases as to the Right all things remain and are as they were at first but this ought to be done in the same Term otherwise the King might change without limit and tye the Defendant to perpetual Attendance Judgment pro Defendente Hill 21 22. Car. II. C. B. Rot. 606. Thomas Rowe Plaintiff and Robert Huntington Defendant in a Plea of Trespass and Ejectment THE Plaintiff declares That Thomas Wise 1. April 21 Car. 2. at Hooknorton in the County of Oxford by his Indenture produc'd dated the said day and year demis'd to the said Thomas Rowe the Mannor of Hooknorton with the Appurtenances 4 Messuages 100 Acres of Land 50 Acres of Meadow 400 Acres of Pasture and 50 Acres of Wood with the Appurtenances in Hooknorton aforesaid As also the Rectory and Vicaridge of Hooknorton and the Tithes of Grain Hay and Wool renewing in Hooknorton aforesaid To have and to hold the Premisses from the Feast of the Annunciation of the Virgin then last past to the end and term of Seven years then next ensuing That by virtue thereof the said Thomas Rowe the Plaintiff into the said Mannor and Tenements enter'd and of the said Rectory Vicaridge and Tithes was possessed That the said Robert Huntington the Defendant the said First of April with Force and Arms into the said Mannor Rectory Vicaridge and Tithes entred and him Ejected against the Peace to his great damage and whereby he is endamaged 100 l. The Defendant Huntington pleads not Culpable And thereupon Issue is Ioyn'd The Jury give a Special Verdict That as to the Trespass and Ejectment in the said Mannor and Tenements and in the said Rectory Vicaridge and Tithes aforesaid excepting 200 Acres of Pasture parcel of the said Mannor of Hooknorton That the Defendant Huntington is not Culpable And as to the said 200 Acres they say that long before the said Trespass and Ejectment That is the 14th day of October 1. Mar. one Robert then Bishop of Oxford was seis'd in his Demesne as of Fee in Right of his Bishoprick of the said Mannor whereof the said 200 Acres are parcel and so seis'd the said 14th of October 1 Mariae at Hooknorton aforesaid by his Indenture of Demise seal'd with his Episcopal Seal Dated the said day and year and shew'd in Evidence to the Jury made between the said Bishop of the one part and John Croker of Hooknorton Esq of the other part for Considerations in the said Indenture of Demise mentioned had demis'd and to farm lett to the said Croker Among other things the said Mannor with the Appurtenances whereof the said 200 Acres are parcel To have and to hold to the said Croker and his Assigns from the end and expiration prioris Dimissionis in eadem Indentur Mentionat for and during the term of Ninety years then next following The tenor of which Indenture of Demise follows in haec verba This Indenture made the Fourteenth day of October 1 Mariae c. Between the said Bishop and the said John Croker c witnesseth That where the said Bishop by the name of the Reverend Father in God Robert King Abbot of Tame and Commendatory of the late Monastery of Oseney in the County of Oxford and the Covent of the same by their Deed Indented Dated 6. April 29 Hen. 8. with the Consent of their whole Chapter Have demis'd and to farm lett All that their Mansion or Farm of Hooknorton with the Appurtenances in the said County and all the Mansion and Farm Demesne Lands Meadows Leasowes and Pastures with all Commodities and Profits to the said Mannor belonging or appertaining and the customary works of all the Tenants not granted nor remitted before the Date of the Deed And the Parsonage of Hooknorton and
afterwards the said First Day of April 21 Car. 2. at Hooknorton aforesaid demised to the said Thomas Rowe the said Mannor and Tenements Rectory and Vicaridge whereof the said Two hundred Acres are parcel To have and to hold to the said Rowe and his Assigns from the Feast of the Annunciation last past for the term of Seven years then next ensuing That by virtue thereof the said Rowe enter'd and was possessed until the said Robert Huntington the said First of April 21 of the King by Force and Arms by the command of the foresaid Robert late Bishop of Oxford into the said Two hundred Acres upon the Possession of the said Thomas Rowe to him demised by the said Wise as aforesaid for the said term not yet past enter'd and Ejected him But whether upon the whole matter the said Robert be Culpable of the said Trespass and Ejectment they refer to the Court. By this Verdict in the recited Indenture if any such were of 29 H. 8. the Farm of Hooknorton and the Mannor of Hooknorton were the same thing and the Mannor known and demis'd by the name of the Farm as well as the Farm by name of the Mannor The Mannor of Hooknorton being call'd the Farm of Hooknorton because it was lett to Farm and rented out and the Farm called the Mannor because it had the Requisits of a Mannor viz. Demesne Services Therefore where it is recited in the Deed 1 Mar. That the Abbot and Covent of Osney had by their Deed of 29 H. 8. demis'd to John Croker All that their Farm of Hooknorton it was the same as if it had been the Mannor of Hooknorton 1. For that the next words are And all that Mansion Demesne Lands Meadows Leasowes and Pastures to the said Mannor belonging and no Mannor is named before but the Farm which was known to be the Mannor 2. The Habendum of the Premisses demised is To have and to hold the said Farm or Mannor of Hooknorton which also shews they were the same 3. In the render of the Rent it is yielding and paying for the said Mannor and Farm Nine pounds 4. By the Demise of 1. Mar. subsequent the said Mannor or Farm is demis'd And the 200 Acres in question being found to be parcel of the said Mannor consequently they are recited to be demis'd by that Indenture suppos'd of 29 H. 8. But the Jury find not the Mannor and Farm to be the same The next thing to be noted is That by that recited Indenture of 29 H. 8. if any such were several Rents were reserved upon several particulars and not one intire Rent upon the whole namely 9 l. upon the Mannor or Farm Another Rent upon the Parsonage another on the Vicaridge and so upon several other particulars And by the Lease of 1 Mariae it is yielding and paying such and the like Rents in the Plural Number as are reserved by the said first Indenture So as the Rents were several in the first Indenture by the meaning of that of 1 Mar. And yielding and paying such and like Rent as is reserv'd by the latter Indenture for the Premisses therein contain'd Here it is such Rent in the singular number as is reserv'd not as are reserved as in the former Then in the Clause of Re-entry for Non-payment it is that the Re-entry should be into such of the Premisses whereupon such Rent being behind was reserv'd therefore not into all the Premisses Whence it follows That there being several Rents several Demands were respectively to be made before Re-entry as well for those reserv'd in the first Indenture as for that in the second Indenture recited And it being found That the Demand made by the Bishop at the Parsonage-house in Forty three was for the half years Rent reserved of all the Premisses demis'd by the Indenture of 1 Mar. it follows That more Rent was demanded than was payable in any one place consequently the Demand not good nor the Re-entry pursuing it and thus far the Case is clear against the Defendant For the Lease of 1 Mar. could not be avoided by that Re-entry in all nor in part if the Leases of 29 H. 8. and 1 E. 6. were well and sufficiently found by the Jury to have been made Note The Jury finding that the Rent reserved for all the Premisses was behind for half a year ending at Michaelmas 1643. not expressing the Sum of the Rent is no more than to find That no Rent was paid for the said half year And their finding That the Bishop did demand the said half years Rent finding no Sum by him demanded is no more than to find That he demanded such Rent as was due for the said half year So as notwithstanding the Juries finding That no Rent was paid for the said half year and their finding of the Bishop's demanding of what was due for the said half year It doth not therefore follow That they find any Rent to be reserv'd by the said Lease of 1. Mar. or that there was a Demand of any Rent admitted to be so reserv'd But if the Leases of 29 H. 8. and 1 E. 6. be not well and sufficiently found by the Jury to have been made The Consequent then is That in Law there are no such Leases for de non apparentibus non existentibus eadem est ratio ad omnem juris effectum And then it follows That the Lease of 1 Mar. of all the Premisses specified in the Indenture of 29 H. 8. and of all specified in the Indenture of 1 E. 6. for Ninety years Habendum from the respective Expirations of the terms specified and under the respective Rents reserv'd by those Indentures will be void as to the terms intended to be granted and the Rents reserv'd because the beginning of the terms and particulars of the Rents can be known but from the Demises 29 H. 8. and 1 E. 6. when no such Demises are because the Jury hath found no such For this the Case of 3 E. 6. reported by the Lord Brooks in his Title of Leases N. 62. is clear and in several Cases since adjudg'd is admitted for good Law The Case is Br. tit Leases N. 66. 3 E. 6. If a man Leases Land for certain years to J. S. Habendum post dimissionem inde factam to J. N. finitam and J. N. hath no Lease of the Land the Lease to J. S. shall commence immediately for the term of years granted him So in our Case the Lease of 1 Mar. of the Mannor and other the Premisses granted to Croker for Ninety years Habendum as to some particulars from the expiration of a former Lease granted 29 H. 8. And as to other particulars from the expiration of a Lease granted 1 E. 6. when no such Leases were granted because not found to be granted Therefore the Lease of 1 Mar. for Ninety years shall commence immediately from the Sealing and consequently ended about the 21 or 22 of King Charles the First
meaning can be given to his Covenant Accordingly the new Authorities run grounded upon that sound and ancient Reason of Law That the Lessor shall not be charg'd with an Action upon his express Covenant for enjoyment of the term against all men where the Lessee hath his proper Remedy against the wrong doer Against this Truth there is one Book that hath or may be pretended which I will cite in the first place because the Answer to it may be more perspicuous from the Authority I shall after deliver to redargue that Case Dyer 15 16 Eliz. 328. a. pl. 8. It is the Case of Mountford and Catesby in the Lord Dyer Catesby in consideration of a Sum of mony and a Horse made a Lease to Mountford for term of years Et super se assumpsit quod the Plaintiff Mountford pacifice quiete haberet gauderet the Land demis'd durante termino sine evictione interruptione alicujus personae after Catesby's Father entred upon him and so interrupted him whereupon Mountford brought his Action upon this Assumpsit and Catesby pleaded he did not assume and found against him It was moved in Arrest of Judgment for the Defendant That the entry might be wrongful for which the Plaintiff had his Remedy but disallowed and Iudgment affirmed for the Plaintiff because saith the Book it is an express presumption and assumption that the Plaintiff should not be interrupted And this Case is not expresly denied to be Law in Essex and Tisdales Case in the Lord Hobart as being an express Assumption Though the Lord Dyers Case be an Action of the Case upon an Assumpsit and out Case an Action of Covenant yet in the nature of the Obligation there seems no difference but in the form of the Action For to assume that a man shall enjoy his term quietly without interruption and to covenant he shall so enjoy it seems the same undertaking But if the reason of Law differ in an Assumpsit from what it is in a Covenant as seems implyed in Tisdales Case then this Case of the Lord Dyer makes nothing against the Case in question which is upon a Covenant not an Assumpsit Hob. f. 34 35. 1. Elias Tisdale brought an Action of Covenant against Sir William Essex and declared That Sir William convenit promisit agreavit ad cum praedict Elia quod ipse idem Elias haberet occuparet gauderet certain Lands for Seven years into which he entred and that one Elsing had Ejected him and kept him out ever since Resolv'd because no Title is laid in Elsing he shall be taken to enter wrongfully and the Lessee hath his Remedy against him Therefore adjudg'd for the Defendant Essex Here is a Covenant for enjoying during the term the same with enjoying without interruption for if the enjoyment be interrupted he doth not enjoy during the term the same with enjoying without any interruption the same with enjoying without interruption of any person which is the Lord Dyers Case but here adjudg'd the interruption must be legal or an Action of Covenant will not lye because there is remedy against the Interrupter So is there in the Lord Dyer's Case And a Rule of that Book is That the Law shall never judge that a man Covenants against the wrongful acts of strangers unless the words of the Covenant be full and express to that purpose which they are not in our present Case because the Law defends against wrong Brocking brought an Action upon an Assumpsit against one Cham and declared Brocking versus Cham Cr. 15 Jac. f. 4. 5. p. 10. That the Defendant assumed the Plaintiff should enjoy certain Lands according to his Lease without the lett interruption or incumbrance of any person and shews in Fact That this Land was extended for Debt due to the King by process out of the Exchequer and so incumbred After Verdict for the Plaintiff it was moved in Arrest of Iudgment That no good breach was assigned because he did not shew that the Incumbrance was a lawful Incumbrance for else he might have his Remedy elsewhere and Iudgment was given for the Defendant This Case was upon an Assumpsit as the Lord Dyers was and by as ample words for the Land was to be enjoyed without any lett which is equivalent to the words of quiete pacifice in the Lord Dyers Case which is a Case in terminis adjudged contrary to that in the Lord Dyer and upon the same reason of Law in an Assumpsit as if it had been a Covenant viz. because the Plaintiff had his Remedy against the wrong doer Chauntfloure brought an Action of Covenant against one Pristly and Doctor Waterhouse as Executors of John Mountfitchett Cr. 45 El. f. 914. pl. 4. and declared That the Testator had sold him Nine and twenty Tuns of Copras and agreed That if the Testator faild of payment of a certain Sum of mony upon a day certain That the Plaintiff might quietly have and enjoy the said Copras that the money was not paid at the day and that he could not have and enjoy the said Nine and twenty Tuns of Copras Iudgment was given by Nihil dicit against the Defendants and upon a Writ of Enquiry of Damages 260 l. Damages given Vpon motion in Arrest of Iudgment It was resolved by the whole Court That the breach of Covenant was not well assign'd because no lawful disturbance was alledg'd and if he were illegally hindred or disturbed of having the Copras which he had bought he had sufficient remedy against the wrong doers Dod was bound in an Obligation to Hammond conditioned that Hammond and his Heirs might enjoy certain Copyhold Lands surrendred to him The Defendant pleaded the Surrender and that the Plaintiff entred and might have enjoyed the Lands To which the Plaintiff replyed That after his Entry one Gay entred upon him and outed him It was adjudg'd the Replication was naught because he did not shew that he was evicted out of the Land by lawful Title for else he had his Remedy against the wrong doer This was in an Action of Debt upon a Bond condition'd for quiet enjoyment So as neither upon Covenant upon Assumpsit or Bond condition'd for quiet enjoying unless the breach be assign'd for a lawful Entry or Eviction and upon the same reason of Law because the lessee may have his Remedy against the wrong doers an Action of Covenant cannot be maintain'd Cok. 4 Rep. Nokes's Case To these may be added a Resolution in Nokes his Case in the fourth Report where a man was bound by Covenant in Law That his Lessee should enjoy his term and gave Bond for performance of Covenants in an Action of Debt brought upon the Bond the breach was assign'd in that a stranger had recover'd the Land leas'd in an Ejectione firmae and had Execution though this Eviction were by course of law yet for that an elder and sufficient Title was not alledg'd upon which the Recovery was had
it is said The Rent was granted out of the Twenty Acres being the Locus in quo by the Name of all the Grantors Lands and Hereditaments in King's Norton and that a per nomen in that Case is not good The Case of Grey and Chapman was urg'd 43 Eliz. Cro. f. 822. where by Indenture S. one Prudence Cousin let a House and Twenty Acres of Land by the Name of all her Tenements in S. But it was not alledg'd in what Vill the Acres were The Court was of Opinion in Arrest of Judgment that the naming of the Vill in the per nomen was not material Another Case to the same purpose was urg'd of Gay against Cay where a Grant in possession was pleaded 41 Eliz. Cro. f. 662. pl. 10. and not as in Reversion And upon view of the Record the Grantor had granted Tenementa praedicta per nomen of a Mesuage which A. P. held for life where the per nomen was adjudg'd not to make good the Grant The Court is of Opinion notwithstanding these Cases That in the present Case the per nomen is well enough because it is alledg'd the Grantor was seis'd of Two hundred Acres of Land in Kings Norton whereof the locus in quo being Twenty Acres is parcel By reason whereof the Rent being granted out of every parcel of the Two hundred Acres it is well enough to say it was granted out of the Twenty Acres per nomen of all his Lands in Kings Norton because the Twenty Acres are alledg'd to be parcel of all his Lands there being Two hundred Acres But in Chapman's Case It is not alledg'd that the Twenty Acres of Land demis'd were parcel of all the Tenements in S. per nomen of which the Twenty Acres were to pass As for the second Case of Gay it was not possible that Lands granted as in possession should pass per nomen of Land that was in Reversion The second Exception is Because the Clause of Entry and Distress in the Deed upon Oyer of it differs from the Clause of Entry and Distress alledg'd in the Conizance For in the Conizance it is said It should be lawful to Enter and Distrain if the rent were unpaid and behind after any of the Feasts whereon it was due that is at any Feast that should first happen after the death of Anne or Thomas Greaves for the Rent did not commence before But by the Deed If the Rent were behind at any the Feasts the Entry and Distress is made to be lawful for it during the joynt Lives of Anne and Thomas Greaves the Uncle and during their joynt lives it could not be behind for it commenc'd not till one of them were dead Scarplus Handkinson 37 El. Cro. f. 420. words repugnant and sensless to be rejected So as the sense must run That if the Rent were behind it should be lawful to distrain during the joint Lives of Anne and Thomas Greaves which was before it could be behind for it could not be behind till the death of one of them Therefore those words during their joynt natural lives being insensible ought to be rejected For words of known signification but so placed in the Context of a Deed that they make it repugnant and sensless are to be rejected equally with words of no known signification Judgment pro Defendent The Chief Justice delivered the Opinion of the Court. Trin. 16 Car. II. C. B. Rot. 2487. But Adjudg'd Mich. 20 Car. II. Bedell versus Constable BY the Act of 12 Car. 2. cap. 24. It is among other things Enacted That where any person hath or shall have any Child or Children under the Age of One and twenty years and not married at the time of his death It shall and may be lawful to and for the Father of such Child or Children whether born at the time of the decease of the Father or at that time in ventre sa mere or whether such Father be within the Age of One and twenty years or of full Age by his Deed executed in his life time or by his last Will and Testament in writing in the presence of two or more credible Witnesses to dispose of the custody and tuition of such Child or Children for and during such time as he or they shall respectively remain under the Age of One and twenty years or any lesser time to any person or persons in possession or remainder other than Popish Recusants And such disposition of the Custody of such Child or Children made since the Four and twentieth of February 1645. or hereafter to be made shall be good and effectual against all and every person or persons claiming the custody or tuition of such Child or Children as Guardian in Soccage or otherwise And such person or persons to whom the custody of such Child or Children hath been or shall be so disposed or devised as aforesaid shall and may maintain an Action of Ravishment of Ward or Trespass against any person or persons which shall wrongfully take away or detain such Child or Children for the Recovery of such Child or Children and shall and may recover Damages for the same in the said Action for the use and benefit of such Child or Children And such person or persons to whom the custody of such Child or Children hath been or shall be so disposed or devised shall and may take into his or their custody to the use of such Child or Children the profits of all Lands Tenements and Hereditaments of such Child or Children and also the custody tuition and management of the Goods Chattels and personal Estate of such Child or Children till their respective Age of One and twenty years or any lesser time according to such Disposition aforesaid and may bring such Action or Actions in relation thereto as by Law a Guardian in Common Soccage might do By the Will is devised in these words I do bequeath my son Thomas to my Brother Robert Towray of Rickhall to be his Tutor during his Minority Before this Act Tenant in Soccage of Age might have dispos'd his Land by Deed or last Will in trust for his Heir but not the Custody and Tuition of his Heir for the Law gave that to the next of Kinn to whom the Land could not descend But Tenant in Soccage under Age could not dispose the Custody of his Heir nor devise or demise his Land in trust for him in any manner Now by this Statute he may grant the Custody of his Heir but cannot devise or demise his Land in trust for him for any time directly for if he should the devise or demise were as before the Statute as I conceive which is most observable in this Case I say directly he cannot but by a mean and obliquely he may for nominating who shall have the Custody and for what time by a consequent the Land follows as an incident given by the Law to attend the custody not as an Interest devis'd or demis'd
therefore he shall not assign it A Guardian in Soccage cannot transferr his Custody because it is a personal Trust but the Trust of this special Guardian is more personal therefore that he shall transferr it concludes strangely The Office of a Philizer is an Office of personal Trust to do the business of the Court and not assignable 28 H. 8. f. 7. Dyer no Execution can be upon it Sir George Reynels Case an Office of Trust and Confidence cannot be granted for years because then it might go to persons that is to Executors or Administrators never trusted or confided in So is Littleton expresly That all Offices of Trust Sect. 379. as Steward Constable Bedlary Bailiffwick must be personally occupied unless they be granted to be occupied by a Deputy and are not assignable And a more near or tenderer Trust cannot be than the Custody and Education of a mans Child and Heir and preservation of his Estate It may be said That in these Cases the Law doth particularly appoint the Guardians and therefore no others can be But in the Case at Barr the Father appoints the person not the Law It is true there is a difference in the Cases but not to make the Trust more assignable in the one Case than the other Where the Law appoints who shall be trusted the Trust cannot be refused as in the several Guardians before mentioned But where the Person names the Trustee the Trust may be refused but once accepted it cannot be transfer'd to others more than where the Law names the Trustee An Executor hath a private office of Trust for we speak not of publique and is named by the Testator not by the Law therefore he may refuse but cannot assign his Executorship But it is true an Executor may make an Executor due Circumstances observed who shall discharge the first Testators Trust but the reason is that after Debts paid and Legacies the Surplus of the Goods belongs to the Executor proprio jure An Administrator hath a private Office of Trust he cannot assign nor leave it to his Executor he is not named by the Intestate but by the Law in part for him but not peremptorily he may not claim it if he will because it must pass through the Ordinary A mans Bailiff or Receiver are Offices of personal Trust and not assignable so is the Office of every Servant An Arbitrator or one authorized to sell a mans Land to give Livery or receive it cannot assign it is a personal Confidence 1. A Custody is not in its nature Testamentary it cannot pay Debts nor Legacies nor be distributed as Alms. 2. It is not accomptable for to the Ordinary as Intestates Goods are 3. The Heir ought to have a Guardian without interruption but an Executor may be long before he proves the Will and may at length refuse An Administration long before it be granted and after may be suspended by Appeal and in these times the Ward hath no certain Guardian responsal for his Estate or Person Shopland's C. 3 Jac. Cr. f. 99. And where it may be said That these are naked Authorities and the persons have no Interest but a Guardian hath Interest he may lett and sett the Wards Land during minority Avow in his own name Grant Copy-hold Estates and the like It is an Interest conjoyned with his trust for the Ward I speak not here of equitable trusts without which Interest he could not discharge the trust but it must be an Interest for himself which is transferrable or shall go to his Executor All Executors and Administrators have Interest and Property necessary to their Trusts for they may sell the Goods or Leases of the Testator or Intestate without which they could not execute the Trust A Monk made an Executor might do the like who in his own right could have no Interest or Property But such Interest proves not that the Executors or Administrators may assign their Trust Guardian in Soccage may demise his Guardianship and grant over his Estate N. Br. f. 145. b. Letter H. quod nota or that it shall go to their Executors for it is agreed in that Case of Shopland That such Interest as a Guardian in Soccage hath shall not go to his Executor but is annexed to his Person and therefore not transferrable So as I take the sense of the Act collected in short to be Whereas all Tenures are now Soccage and the next of kinn to whom the Land cannot descend is Guardian until the Heirs Age of Fourteen yet the Father if he will may henceforth nominate the Guardian to his Heir and for any time until the Heirs Age of One and twenty and such Guardian shall have like remedy for the Ward as the Guardian in Soccage by the Common Law hath Another Exposition of this Act hath been offer'd as if the Father did devise his Land by way of Lease during the minority of the Heir to him to whom he gave the Custody in Trust for the Heir and so the Land was assignable over and went to the Executors but follow'd with the Trust 1. This is a forc'd Exposition to carry the Custody to any Stranger to the Father or to the Child or to any that may inherit the Land contrary to the ancient and excellent policy of the Law 2. By such an Exposition the Heir should have no Accompt of such a Lessee as he may against a Guardian but must sue in equity for this Statute gives Actions such as Guardians might have to him who hath the Custody but gives none against him 3. If such Lessee should give the Heirs marriage Coke Litt. f. 896. the Heir hath no Remedy but the Guardian in Soccage shall accompt for what the marriage was worth Stat. Malbridge c. 17. The Statute only saith That such person nominated by the Father may take to his Custody the Profits of all Lands Tenements and Hereditaments of such Child and Children and also the Custody Tuition and Management of the Goods Chattels and personal Estate of such Child or Children And may bring such Action in relation thereto as a Guardian in Soccage might do None of which words will charge him with the value of the Marriage if he had nothing for it Na. Br. f. 139. b Lett. H. 4. If the Heir be in custody of such a Lessee and be Guardian by nearness of kinn to another Infant The Guardian of the Heir by Law is Guardian to both but such a Lessee hath no pretence to be Guardian of the second Infant by any word of the Act For he is neither an Hereditament or Goods or Chattels of the first Infant As to the second part If the Father being of Age should devise his Land to J. S. during the Minority of his Son and Heir in trust for his Heir and for his Maintenance and Education until he be of Age. This is no devising of the Custody within this Statute for he might have done this before
the Statute If the Father under Age should make such a Devise it were absolutely void for the same syllables shall never give the Custody of the Heir by the Father under Age which do not give it by the Father which is of Age. But in both Cases a Devise of the Custody is effectual and there is no reason that the Custody devis'd shall operate into a Lease when a Lease devis'd shall not operate into a Custody which it cannot do If a man devise the Custody of his Heir apparent to J. S. and mentions no time either during his Minority or for any other time this is a good devise of the Custody within the Act if the Heir be under Fourteen at the death of the Father because by the Devise the Modus habendi Custodiam is chang'd only as to the person and left the same it was as to the time But if above Fourteen at the Fathers death then the Devise of the Custody is meerly void for the incertainty For the Act did not intend every Heir should be in Custody until One and twenty Non ut tamdiu sed ne diutius therefore he shall be in this Custody but so long as the Father appoints and if he appoint no time there is no Custody If a man have power to make Leases for any term of years not exceeding One hundred and he demises Land but expresseth no time shall this therefore be a Lease for One hundred years There is no Reason it should be a Lease for the greatest term he could grant more than for the least term he could grant or indeed for any other term under One hundred Therefore it is void for incertainty and the Case is the same for the Custody For if the Father might intend as well any time under that no Reason will enforce that he only intended that And to say he intended the Custody for some time therefore since no other can be it must be for that will hold as well in the Lease and in all other Cases of incertainty If a man devises Ten pounds to his Servant but having many none shall have it for the incertainty It may be demanded If the Father appoint the Custody until the Age of One and twenty and the Guardian dye what shall become of this Custody It determines with the death of the Guardian and is a Condition in Law and the same as if a man grant to a man the Stewardship of his Mannor for Ten years or to be his Bailiff It is implyed by way of Condition if he live so long A Copyholder in Fee surrenders to the Lord Dyer 8 Eliz. f. 251. pl. 90. ad intentionem that the Lord should grant it back to him for term of life the Remainder to his Wife till his Son came to One and twenty Remainder to the Son in tayl Remainder to the Wife for life The Husband died The Lord at his Court granted the Land to the Wife till the Sons full age The Remainders ut supra The Wife marries and dies Intestate The Husband held in the Land The Wives Administrator and to whom the Lord had granted the Land during the Minority of the Son enters upon the Husband This Entry was adjudg'd unlawful because it was the Wives term but otherwise it had been if the Wife had been but a Guardian or next Friend of this Land The like Case is in Hobart Balder and Blackburn f. 285. 17 Jac. If it be insisted That this new Guardian hath the Custody not only of the Lands descended or left by the Father but of all Lands and Goods any way acquir'd or purchas'd by the Infant which the Guardian in Soccage had not That alters not the Case for if he were Guardian in Soccage without that particular power given by the Statute he is equally Guardian in Soccage with it and is no more than if the Statute had appointed Guardian in Soccage to have care of all the Estate of the Infant however he came by it Besides that proves directly that this new Guardian doth not derive his interest from the Father but from the Law for the Father could never give him power or interest of or in that which was never his The Court was divided viz. The Chief Justice and Justice Wylde for the Plaintiff Justice Tyrrell and Justice Archer for the Defendant Hill 19 20 Car. II. C. B. Rot. 506. Holden versus Smallbrooke IN Trover and Conversion and not Guilty pleaded Robinson the Iury gave a Special Verdict to this Effect That Doctor Mallory Prebendary of the Prebend of Wolvey founded in the Cathedral of Litchfield seis'd of the said Prebend and one Messuage one Barn and the Glebe appertaining thereto and of the Tithes of Wolvey in right of his Prebend 22 April 13 Car. 2. by Indenture demised to Giles Astly and his Assigns the said Prebend together with all Houses Barns Tenements Glebe Lands and Tithes thereto belonging for three Lives under the ancient Rent of Five pounds ten shillings Astly being one of the Lives died seis'd of the Premisses at whose death one Taverner was Tenant for one year not ended of the Demise of Astly of the Messuage Barn and Glebe Lands and in possession of them whereupon the Plaintiff entred into the Messuage and Glebe and was in the possession of the same and of the Tithes as Occupant And afterwards Frances Astly the Relict of the said Giles Astly enters upon the Messuage and claims the same as Occupant in haec verba Frances Astly Widow of Giles Astly enters upon the House and claims the same with the Glebe and Tithe as Occupant Taverner attorns to Frances Astly and afterwards grants and assigns all his Estate in the Premisses to the Plaintiff afterwards Conquest the Husband of Frances Astly took one Sheaf of Corn in the name of all the Tithes and afterwards demised the Tithes to the Defendant The Tithes are set forth and the Defendant took them whereupon the Plaintiff brought this Action Before I deliver my Opinion concerning the particular Questions before open'd arising upon this Record I shall say somewhat shortly of Natural Occupancy and Civil Occupancy First opening what I mean by those terms then briefly shewing their difference as far only as is material to the Questions now before me I call Natural Occupancy the possession either of such natural things as are immoveable fixt and permanent as Land a Pool River Sea for a Sea is capable of Occupancy and Dominion naturally as well as Land and hath naturally been in Occupancy as is demonstrated in Mr. Selden's Mare Clausum at large which lye unpossess'd and in which no other hath prior right Or of things natural and moveable either animate as a Horse a Cow a Sheep and the like without number or Inanimate as Gold precious Stones Grain Hony Fruit Flesh and the like numberless also wherein no man until the possession thereof by Occupancy had any other right than every man had which is
of them constituent parts of the Prebendary or Rectory as the Services are of a Mannor for a total severance of the Services and Demesne destroy the Mannor but a severance of the Tithe or Glebe will not destroy the Rectory more than the severance of a Mannor parcel of the possessions of a Bishoprick will destroy the Bishoprick for the Glebe and the Tithe are but several possessions belonging to the Rectory But it is true that in the Case before us and like Cases a Grant of the Prebendary or of the Rectory una cum terra Glebali decimis de Woolney The Tithe which alone cannot pass without Deed doth pass by Livery of the Rectory Browlow part 2. f. 201. Rowles and Masons Case and so pass that though the Deed mentions the Tithe to be pass'd yet if Livery be not given which must be to pass the Land the Tithe will not pass by the Deed because the intention of the parties is not to pass them severally but una cum and together Therefore the Tithe in such Case must pass in time by the Livery which did not pass without it though granted by the Deed. Yet it is a Question Whether in such Case the Tithe passeth by the Livery or by the Deed For though the passing it by Deed is suspended by reason of the intention to pass the Land and Tithe together and not severally it follows not but that the Tithe passeth by the Deed where Livery is given though not until Livery given If a man be seis'd of a Tenement of Land and likewise of a Tithe and agrees to sell them both and without Deed gives Livery in the Tenement to the Bargainee in name of it and of the Tithe I conceive the Tithe doth not pass by that Livery But a Prebend or Church man cannot now by the Statute of 13 Eliz. cap. 10. make a Lease of the possessions of his Prebendary without Deed. 13 Eliz. c. 10. A Prebendary or Rectory is in truth neither the Glebe nor Tithe nor both for the one or the other may be recover'd and might at Common Law have been aliened the Rectory remaining But the Rectory is the Church Parochial whereof the Incumbent taketh the Cure and Seisin by his Induction after his Institution which is his Charge and without other Seisin then of the Ring or Key of the Church-door by Induction into the Rectory the Parson is seis'd of all the possessions belonging to his Rectory of what kind soever But though by the name of the Rectory the possessions belonging to it of what nature soever actually vest in the Incumbent upon Induction and may pass from the Prebendary by Livery of the Prebend or Rectory to his Lessee according to the parties intention Yet it follows not That therefore an Occupant who can be Occupant but of some natural and permanent thing as Land is should by being Occupant of that whereof occupancy may be have thereby some other thing heterogene to the nature of Land and not capable of occupancy as a Tithe is being neither appendant or appurtenant or necessary part of that whereof he is Occupant nor will it follow that because by giving Seisin of the Rectory the Tithe and Glebe belonging to it will pass that therefore giving Livery of the Glebe will pass the Tithe For it is observable That if a man be Tenant in tayl of a Mannor to which an Advowson is appendant or of a Tenement to which a Common is belonging and discontinue the Issue in tayl shall never have the Advowson or Common until he hath recontinued the Mannor or Tenement But if a man be seis'd in tayl of a Rectory consisting of Glebe and Tithe and discontinue it after the death of Tenant in tayl the Heir in tayl shall have the Tithe which lay in grant but must recover by Formedon the Rectory and Glebe This was agreed in this Court in a Case between Christopher Baker and Searl in Ejectment Cr. 37 El. f. 407. p. 19. Baker and Searls Case upon a Demise by the Earl of Bedford of the Rectory of D. de decimis inde provenientibus for Lives of three other persons and that Case seems to admit an occupancy of the Tithe the Question being concerning the Tithe only Quest 3 The next Question will be That if Taverner being Occupant of the House and Land shall not have the Tithe whereof Astly was in possession at the time of his death what shall become of this Tithe during the lives of the Cestuy que vies which is the hard question And as to this Question If a Rent be granted to A. for the life of B. and A. dies living B I conceive this Rent to be determined upon the death of A. equally as if granted to him for his own life I say determined because it is not properly extinguish'd nor is it suspended For Extinguishment of a Rent is properly when the Rent is absolutely conveyed to him who hath the Land out of which the Rent issues or the Land is convey'd to him to whom the Rent is granted And Suspension of a Rent is when either the Rent or Land are so convey'd not absolutely and finally but for a certain time after which the Rent will be again reviv'd The Reasons why it is determined are because a thing so granted as none can take by the Grant is a void Grant that is as if no such Grant had been Therefore a Grant to the Bishop of L. and his Successors when there is no Bishop in being at the time or to the Dean and Chapter of Pauls or to the Mayor and Commonalty of such a place when there is no Dean or Mayor living at the time of the Grant is a void Grant that is as if it had not been though such a Grant by way of Remainder may be good By the same Reason it follows That when any thing is so granted that upon some contingent hapning none can take by the Grant nor possibly have the thing granted both the Grant and thing granted must necessarily determine for what difference is there between saying that Rent can no longer be had when it is determined by his death for whose life it was granted and saying none can longer have this Rent when it determines by the death of the Grantee pur auter vie For there is no Assignee Occupant or any other can possibly have it and it is therefore determined In an Action of Trover and Conversion brought by Salter against Boteler Salter versus Boteler 44 El. Cr. 901. the Defendant justifies for that one Robert Bash was seis'd in Fee of Twenty Acres in Stansted and granted a Rent-charge to another Robert Bash his Executors and Assigns during the life of Frances the Grantees Wife of Sixteen pounds per Annum The Grantee dies and Frances his wife takes Letters of Administration and the Defendant as her Servant and by her command took a Distress in the said Twenty Acres for Rent
unnatural For as a Husband to her the Son is both to command and correct the Mother as his wife but as a Son to be commanded and endure her Correction as Mother So between the Father and Daughter there is a Reverence from the Daughter to the Father inconsistent with the parity between man and wife and Laws give often a power over the daughter which they forbid over the wife And the reverence and obedience from the Grand-child to the Grand-mother in what degree soever is the same as to the Mother and the same consequences follow For if the Mother or Father have power absolute or in tantum over the Son or Daughter to create reverence to them the same hath the Grand-mother or Grand-father and so forwards For if B. the Father have absolute or qualified power over A. the Son and C. the Grand-father hath the same over B. the Father then hath C. the Grand-father the same over A. the Son not immediately but mediately by the Father To this purpose the Case put in Platt's Case in the Com. is most opposite A woman Guardian of the Fleet marries her Prisoner in Execution he is immediately out of Execution for the Husband cannot be Prisoner to his Wife it being repugnant that she as Jaylor should have the Custody of him and he as Husband the Custody of her To this purpose also it is remarkable what that great Scholar and Lawyer Hugo Grotius hath Eximo ab hac generalitate matrimonium parentum cujuscunque gradus cum liberis quae quo minus licita sint ratio ni fallor satis apparet Grot. de Jure belli l. 2. c. 5 Paragr 12. Nam nec maritus qui superior est lege matrimonii eam reverentiam praestare potest matri quam natura exigit nec patri filia quia quanquam inferior est in matrimonio ipsum tamen matrimonium talem inducit societatem quae illius necessitudinis reverentiam excludat But as to other Relations the same Author in the same place De Conjugiis eorum qui sanguine aut affinitate junguntur satis gravis est quaestio non raro magnis motibus agitata nam causas certas ac naturales cur talia conjugia ita ut legibus aut moribus vetantur illicita sint assignare qui voluerit experiendo discet quam id sit difficile imo praestari non possit I add only That as the mutual duties of Parents and Children consist not with their marrying one another so the Procreations between them will have a necessary and monstrous inconsistence of Relation For the Son or Daughter born of the Mother and begot by the Son as born of the mother will be a Brother or Sister to the Father but as begot by him will be a Son or Daughter So the Issue procreate upon the Grand-mother as born of the Grand-mother will be Uncles or Aunts to the Father as begot by the Son they will be Sons or Daughters to him and this in the first degrees of Kindred Besides by the Laws of England Children inherit their Ancestors without limit in the right ascending Line and are not inherited by them But in the Collateral Lines of Uncle and Nephew the Uncle as well inherits the Nephew as the Nephew the Uncle In the Civil Law the Agnati viz. the Father or Grand-fathers Brother are loco parentum and the Canons borrow it thence but that is because they were Legitimi Tutores or Guardians by Law to their Nephews with us the Lord of whom the Land is held is Guardian or the next of Kin to whom the Land cannot descend and by the same reason they should be loco parentum In a Synod or Convocation holden in London in the year 1603. of the Province of Canterbury by the Kings Writ and with Licence under the Great Seal to consent and agree of such Canons and Constitutions Ecclesiastick as they should think fit Several Canons were concluded and after ratified under the Great Seal as they ought to be among which the Ninety ninth Canon is this No person shall marry within the Degrees prohibited by Gods Law and expressed in a Table set forth by Authority Canons 1 Jac. 1603. Can. 99. in the year of our Lord 1563. and all marriages so made and contracted shall be adjudg'd incestuous and unlawful And the aforesaid Table shall be in every Church publickly set up and fixed at the charge of the Parish This Table was first publisht in Arch-bishop Parker's time in 1563. I know not by what Authority then and after made a Canon of this Convocation with the Kings Licence under the Great Seal and so confirm'd and since continually set up in Parishes By which expresly the Degrees by Gods Law prohibited are said to be expressed in that Table and is the same as No person shall marry within the Degrees prohibited by Gods Law and which are expressed in the Table Any other Exposition of the Canon will be forc'd and violent and the Table set up for the Peoples direction from Incest but a snare and a deceit to them And this marriage is not prohibited in that Table There is an Objection That by the Canon and Civil Law this Degree of Marriage in question is prohibited It is true but by the Statute of 32 H. 8. c. 38. All Prohibitions by the Canon or Civil Law quatenus Canon or Civil Law are wholly excluded and unless the marriage be prohibited by the Divine Law it is made lawful But suppose the Canon or Civil Law were to be taken as a measure in the subject of marriage of what were lawful With the Canon Law of what time would you begin for it varies as the Laws Civil of any Nation do in successive Ages Before the Council of Lateran it was another Law than since for marriages before were forbid to the Seventh Degree from Cosen Germans inclusively since to the Fourth Every Council varied somewhat in the Canon Law and every Pope from the former and often from himself as every new Act of Parliament varies the Law of England more or less and that which always changeth can be no measure of Rectitude unless confin'd to what was the Law in a certain time and then no reason will make that a better measure than what was the Law in a certain other time As the Law of England is not a righter Law of England in one Kings Reign than in another yet much differing Nerva forbad it Heraclius permitted it Grot. Annot. 167. So doth the Civil Law before the marriage of Claudius the Emperour with Agrippina his Brothers daughter the marriage of the Uncle with his Neece was not allowed among the Romans But by a Law of the People and Senate upon that Occasion such marriages were permitted Many others of the like kind Nor did the Canon Law and perhaps truly take more persons to be prohibited within the Levitical Degrees than are there expressed What else is the meaning of that place
could not be granted but to one because its nature was confin'd to one A man cannot have an Assise of Common in his own Soyl nor an Admensuratio pasturae and a Common being a thing that lies in grant he cannot grant it to himself and no other can grant it in his Soyl to him So as I conclude one or more may have Solam separalem Communiam from other Commoners but not from the Lord who is no Commoner I cannot discern the use of this kind of Prescription for the Tenants for if it be to hinder the Lord from approving the Common I think they are mistaken The Statute of Merton gives the Owner of the Soyl power to approve Common Grounds appendant Cok. 2. Instit f. 86.475 West 2. c. 46. or appurtenant by Prescription as this is if sufficient Pasture be left for the Commoners without considering whether the Commoners had the Common solely to themselves excluding the Lord or otherwise For as to Approvement which the Statute provided for the Lord was equally bound pasturing with his Tenants or not pasturing with them Therefore the Statute consider'd not that but that the Lord should approve his own ground so the Commoners had sufficient whatever the nature of the Common were To prescribe to have in such a part of the Lord's Lands Communiam for their Cattel excludes not the Lord. To prescribe to have their Pasturam Communem for their Cattel is the same thing and excludes not the Lord. To prescribe to have solam separalem Communiam is naught by Admittance Why then to prescribe to have solam separalem Pasturam Communiam which is agreed to be the same with Communiam is naught also Now to express another way that they have solam separalem Pasturam Common to them or wherein they Common changeth not the matter in the meaning but order of the words The Statute of Merton is cap. 4. 1. The Lords could not make their profit de Vastis Boscis Pasturis Communibus when the Tenants had sufficientem pasturam quantum pertinet ad tenementa sua 2. Si coram Justiciariis recognitum sit quod tantum pasturae habeant quantum sufficit c. 3. Et quod habeant liberum ingressum egressum de tenementis suis usque ad pasturam suam tunc recedant quiet 4. And that then the Lords faciant commodum suum de terris vastis pasturis 5. Et si per Assisam recognitum fuerit quod non habent sufficientem pasturam 6. Tunc recuperent Seisinam suam per visum Juratorum ita quod per Sacramentum eorum habeant sufficientem pasturam 7. Quod si Recognitum sit quod habeant sufficientem pasturam c. Communibus pasturis is once named Pastura sua for Communia sua seven times and the word Communia not named in this Act but where it mentions 8. The Writ of Novel disseisin de Communia pasturae suae which makes eight times 1. The granting solam separalem Pasturam of or in Black-acre may signifie an exclusion only of having Pasture in White-acre or any other place than Black-acre 2. The granting solam separalem pasturam of or in Black-acre may signifie the exclusion of any other person to have Pasture in Black-acre but the Grantee in which sense the word Solam signifies as much as totam pasturam 3. If the Grant be of all the Pasture the Grantor reserves nothing to himself of that which he grants but all passes into the Grantee but if the Grantor restrains the Grant after general words of granting all the Pasture the Restriction is for the benefit of the Grantor Therefore when the Grant is of Solam separalem pasturam of or in Black-acre all the Pasture is supposed to pass without restriction to the Grantee but if words follow in the Grant pro duabus vaccis tantum or pro averiis levantibus cubantibus super certum tenementum that is a restriction for the benefit of the Grantor for a man cannot in the same Grant restrain for his own benefit the largeness of his Grant and yet have no benefit of his restriction The Court was divided The Chief Justice and Justice Tyrrell for the Plaintiff Justice Archer and Justice Wylde for the Defendant Hill 20 21 Car. II. C. B. Rot. 1552. Adjud'gd 23 Car. II. C. B. Gardner vers Sheldon In Ejectione Firmae for Lands in Sussex Vpon not Guilty pleaded IT is found by the Special Verdict that long before the supposed Trespass and Ejectment One William Rose was seis'd of the Land in question in his Demesne as of Fee and so seis'd made his last Will and Testament November the Second 13 Jac. prout sequitur and sets forth the Will wherein among other things As touching the Lease which I have in my Farm called Easter-gate and all my Interest therein I do give and assign the said Lease and all my Interest therein unto my Friends John Clerk George Littlebury and Edward Rose to the intent that with the Rents and Profits thereof they may help to pay my Debts if my other Goods and Chattels shall not suffice And after my Debts paid my will is that the Rents and Profits of the said Land shall wholly go for and towards the raising of Portions for my two Daughters Mary and Katherine for each of them Six hundred pounds and for my Daughter Mary Two hundred pounds more which was given her by my Father her Grand-fathers Will. And those Sums being raised my will is the Rents and Profits of the said Land shall be wholly to the use and benefit of my Son George c. Item I give to my daughter Mary my greatest Silver Bowl Item I give to my daughter Katherine one plain Silver Bowl c. My will and meaning is That if it happen that my Son George Mary and Katherine my daughters to die without Issue of their Bodies lawfully begotten then all my Free-lands which I am now seis'd of shall come remain and be to my said Nephew William Rose and his Heirs for ever They find that the said William Rose the Testator before the Trespass viz. the First of June 14 Jac. died at Easter-gate in the said County of Sussex seis'd as aforesaid That at the time of his death he had Issue of his body lawfully begotten George Rose his only Son and Mary and Katherine his two Daughters That George the Son entred into the Premisses the First of July 14 Jac. and was seis'd prout Lex postulat Then after and before the time of the Trespass viz. June the Eight and twentieth 14 Car. 2. George died so seis'd of the Premisses at Easter-gate aforesaid That at the time of his death he had Issue of his body two Daughters Judith now wife of Daniel Sheldon one of the Defendants and Margaret now wife of Sir Joseph Sheldon the other Defendant That after the death of George their Father the said Judith and Margaret
during the wives life which was not to be intended 15 El. Moore f. 123. n. 265. Another Case I shall make use of is a Case Paschae 15 El. A man seis'd of a Messuage and of divers Lands occupied with it time out of mind leased part of it to a stranger for years and after made his last Will in these words I will and bequeath to my wife my Messuage with all the Lands thereto belonging in the occupation of the Lessee and after the decease of my Wife I will that it with all the rest of my Lands shall remain to my younger Son The Question in that Case was Whether the wife should have the Land not leased by implication for her life because it was clear the younger Son was to have no part until the death of the wife And the Lord Anderson at first grounding himself upon that Case in Brook as it seems of 29 H. 8. twice by Brook remembred in his Title Devise n. 28. and after n. 52. was of opinion That the wife should have the Land not leased by implication But Mead was of a contrary opinion for that it was expresly devis'd That the wife should have the Land leas'd and therefore no more should be intended to be given her but the Heir should have the Land not in lease during the wives life To which Anderson mutata opinione agreed Hence perhaps many have collected That a person shall not take Land by Implication of a Will if he takes some other Land expresly by the same Will but that is no warrantable difference For vary this Case but a little as the former case was varied That the Land in lease was devis'd to the wife for life and after the death of the wife all the Devisors land was devis'd to the youngest Son as this Case was and that after the death of the wife and the youngest son the Devisors Heir should have the Land both leas'd and not leas'd it had been clear that the Heir exactly according to the Case of 13 H. 7. should have been excluded from all the Land leas'd and not leas'd until after the death of the wife and the younger son And therefore in such case the wife by necessary implication should have had the Land not leas'd as she had the Land leas'd by express devise and that notwithstanding she had the leas'd Land by express devise for else none could have the Land not leas'd during the wives life Horton vers Horton 2 Jac. Cr. f. 74. 75. Wadham made a Lease for years upon condition the Lessee should not alien to any besides his Children The Lessee deviseth the term to Humphrey his son after the death of his wife and made one Marshall and another his Executors and died The Lessor entred as for breach of the Condition supposing this a devise to the wife of the term by implication The opinion of the Judges was It was no devise by implication but the Executors should have the term until the wives death but it was said If it had been devis'd to his Executors after the death of his wife there the wife must have it by implication or none could have had it But Popham denied that Case because if the devise had been to the Executors after the wives death the Executors should when the wife died have had the term as Legatees but until her death they should have it as Executors generally which by all opinions fully confirms the difference taken That a devise shall not be good by implication when the implication is not necessary and in this Case all agreed the Case in 13 H. 7. to be good Law because the implication there was necessary Edward Clatch being seis'd of two Messuages in Soccage tenure Dyer 15 16 El. 4. 330. b. and having Issue a Son and two Daughters by three several Venters His Son being dead in his life time and leaving two Daughters who were Heirs at Law to the Father devis'd one of the Messuages to Alice his Daughter and her Heirs for ever and the other to Thomazine his Daughter and her Heirs for ever with limitation That if Alice died without Issue living Thomazine Thomazine should then have Alice's part to her and her Heirs and if Thomazine died before the Age of Sixteen years Alice should have her part in Fee also And if both his said Daughters died without Issue of their bodies then the Daughters of his Son should have the Messuages The youngest daughter of the Testator died without Issue having past her Age of sixteen years It was resolv'd That the words in the Will If his two Daughters died without Issue of their Bodies did not create by implication cross remainders in tayl to the Devisors Daughters whereby the eldest should take the part of the youngest but her part should go to the Heirs at Law according to the Limitation of the Will and those words were but a designation of the time when the Heirs at Law should have the Messuages Note That one of the Daughters dying without Issue the Heirs at Law by the Will had her part without staying until the other Daughter died without Issue 1. From these Cases I first conclude That only possible implication by a Will shall not give the Land from the right Heir but a necessary implication which excludes the right Heir shall give it 2. That the difference taken is not sound That one shall not take by implication of a Will any Land where the same person hath other Land or Goods expresly devis'd by the same Will for if the implication be necessary the having of Land or any other thing by express devise will not hinder another taking also by implication as appears in the three Cases by me made use of viz. 13 H. 7. 3 E. 6. 15 Eliz. cited out of Moore 3. Whether any thing be given expresly by Will or not a possible Implication only shall not disinherit the Heir where it may as well be intended that nothing was devis'd by implication as that it was But if any man think that to be material in this Case the Daughters had respective Portions expresty devis'd them viz. Six hundred pounds to each of them and therefore shall not have the Land also by implication only possible to disinherit the right Heir Quest 2 For the second point These words My Will is if it happen my Son George Mary and Katharine my Daughters to dye without Issue of their Bodies lawfully begotten then all my Free-lands shall remain and be to my said Nephew William Rose and his Heirs for ever are so far from importing a devise of the Land to the Son and Daughters for their lives with respective Inheritances in tayl by any necessary implication that both Grammatically and to common intendment they import only a designation and appointment of the time when the Land shall come to the Nephew namely when George Mary and Katherine happen to dye Issuless and not before And where
the words of a Will are of ambiguous and doubtful construction they shall not be interpreted to the disinheriting of the right Heir as is already shew'd This being clear That there is no devise by this Will of the Land by implication in any kind to the Son and Daughters it follows that Katherine the surviving Daughter of the Testator and Lessor of the Plaintiff had no Title to enter and make the Lease to the Plaintiff Gardner and then as to the Case in question before us which is only Whether the Defendants be culpable of Ejecting the Plaintiff It will not be material whether The devise to the Nephew William Rose be void or not and if not void how and when he shall take by the devise which may come in question perhaps hereafter But to that point ex abundante and to make the Will not ineffectual in that point of the devise to the Nephew if no Estate for lives or other Estate be created by this Will by Implication to the Son and Daughters it follows That the Nephew can take nothing by way of Remainder for the Remainder must depend upon some particular Estate and be created the same time with the particular Estate Cok. Litt. f. 49. a. The Remainder is the residue of an Estate in Land depending upon a particular Estate and created together with the same and the Will creating no particular Estate the consequent must be That the Land was left to descend in Fee-simple to the heir at law without creating either particular Estate or Remainder upon it Sir Edward Coke hath a Case Cok. Litt. f. 18. a. but quotes no Authority for it If Land be given to H. and his heirs as long as B. hath heirs of his body the Remainder over in Fee the Remainder is void being a Remainder after a Fee-simple though that Fee-simple determines when no heirs are left of the body of B. whether that case be law or not I shall not now discuss in regard that when such a base Fee determines for want of Issue of the body of B. the Land returns to the Grantor and his heirs as a kind of Reversion and if there can be a Reversion of such Estate I know not why a Remainder may not be granted of it but for the former reason this can be no Remainder because no particular Estate is upon which it depends and if the Lord Coke's Case be law it is the stronger Cok. Litt. f. 18. a. Sect. 11. that no Remainder is in this Case But without question a Remainder cannot depend upon an absolute Fee-simple by necessary reason For when all a man hath of Estate or any thing else is given or gone away nothing remains but an absolute Fee-simple being given or gone out of a man that being all no other or further Estate can remain to be given or dispos'd and therefore no Remainder can be of a pure Fee-simple To this purpose is the Case of Hearne and Allen in this Court 2 Car. 1. Cr. f. 57. Richard Keen seis'd of a Messuage and Lands in Cheping-Norton having Issue Thomas his Son and Anne a Daughter by the same Venter devis'd his Land to Thomas his Son and his heirs for ever and for want of heirs of Thomas to Anne and her heirs and died It became a Question Whether Thomas had an Estate in Fee or in Tayl by this Will for he could not dye without heir if his Sister outlived him who was to take according to the intent of the Devisor Two Judges held it and with reason to be an Estate tayl in Thomas and the Remainder to the Daughter who might be his heir shew'd That the Devise to him and his heirs could be intended only to be to him and the heirs of his body But three other Judges held it to be a devise in Fee but all agreed if the Remainder had been to a Stranger it had been void for then Thomas which is only to my purpose had had an absolute Estate in Fee after which there could be no Remainder which is undoubted law The Case out of Coke's Littleton and this Case are the same to this purpose That a Remainder cannot depend upon a Fee-simple yet in another respect they much differ For in this last Case after an Estate in Fee devis'd to Thomas and if he died without heir the Remainder to a Stranger or Sister of the half blood not only the Remainder was void as a Remainder but no future devise could have been made of the land by the Devisor for if Thomas died without heir the land escheated and the Lords Title would precede any future devise But in that Case of Sir Edward Coke which he puts by way of Grant if it be put by way of devise That if land be devised to H. and his heirs as long as B. hath heirs of his body the Remainder over such later devise will be good though not as a Remainder yet as an Executory devise because somewhat remain'd to be devis'd when the Estate in Fee determin'd upon B. his having no Issue of his Body And as an Executory Devise and not as a Remainder I conceive the Nephew shall well take in the present Case And the intention of the Testator by his Will will run as if he had said I leave my Land to descend to my Son and his Heirs according to the Common Law until he and both my Daughters shall happen to dye without Issue And then I devise my Land to my Nephew William Rose and his Heirs Or as if he had said my Son shall have all my Land To have and to hold to him and his Heirs in Fee-simple as long as any Heirs of the bodies of A.B. and c. shall be living and for want of such Heirs I devise my Land to my Nephew William Rose and his Heirs The Nephew shall take as by a future and Executory Devise And there is no difference whether such devise be limited upon the contingent of three Strangers dying without Heirs of their bodies or upon the contingent of three of the Devisors own Children dying without Heirs of their Bodies for if a future devise may be upon any contingent after a Fee-simple it may as well be upon any other contingent if it appear by the Will the Testator intended his Son and Heir should have his Land in Fee-simple This way of Executory devise after a Fee-simple of any nature was in former Ages unknown as appears by a Case in the Lord Dyer 29 H. 8. f. 33. concerning a Devise to the Prior of St. Bartholomew in West-Smithfield by the clear Opinion of Baldwin and Fitz herbert the greatest Lawyers of the Age. But now nothing more ordinary The Cases are for the most part remembred in Pell and Browns Case that is Dyer f. 124. Ed. Clatch his Case f. 330. b. 354. Wellock Hamonds Case cited in Borastons Case 3. Rep. Fulmerston Stewards Case c. I shall instance two Cases
taking from another which the word Stealing imports to be lawful unlawful Swearing which Perjury imports to be lawful an unlawful Entry upon a mans House or Land which the word Trespass imports to be lawful and so of the rest So the same thing at the same time would be both lawful and unlawful which is impossible For the same reason a Law making Murther Stealing Perjury Trespass or any the rest of the mala instanc'd in lawful would be a void Law in it self For a Law which a man cannot obey nor act according to it is void and no Law And it is impossible to obey contradictions or act according to them Therefore I may conclude those things to be mala in se which can never be made lawful The instances in that Book of 11 H. 7. are none of these but near them the words are But malum in se the King nor any other can dispense And instanceth Si Come si le Roy voyloit pardon de occider un homme ou de faire nusance in le haut chemin ceo est void Where by the way pardon is mis-printed for pocar done for the King may pardon killing a man but if the King will give power to kill a man or to make a nusance in the High-way it is void And upon the same reason a licence to imprison a man to take his Land his Horse or any thing that is his from him is void For in life liberty and estate every man who hath not forfeited them hath a property and right which the Law allows him to defend and if it be violated it gives an Action to redress the wrong and to punish the wrong-doer Therefore a dispensation that is to make lawful the taking from a man any thing which he may lawfully defend from being taken or lawfully punish if it be must be void For it is a contradiction to make it lawful to take what may be lawfully hindred from being taken or lawfully punished if it be And that were to make two men have several plenary rights in the same thing at the same time which no Law can effect Therefore to do a thing which no Law can make lawful must be malum in se But these instances differ from the former for killing a man or taking from him his Lands or Goods do not import ex vi termini that which is unlawful as Murther and Stealing do for in many Cases killing a man or taking his liberty or goods from him is lawful and where it is not may by a Law be made so which the other can never be As every new capital punishment ordained by Law makes killing a man lawful where it was not before every new aid granted out of mens estate makes a taking from men lawful that was not before But this is because a Law can alter change or transferr a mans property in life liberty estate or any interest as it will which cannot be done without a Law and thereby nothing unlawful is made lawful But the property which a man had and was the subject matter of the unlawful doing or taking before is alter'd or transferred to another either in toto or in tanto So as to violate mens properties is never lawful but a malum per se as that Book is of 11 H. 7. and according to that of Bracton Bract. l. 3. f. 132 Rex non poterit gratiam facere cum injuria damno aliorum quod autem alienum est dare non potest per suam gratiam But to alter or transferr mens properties to others is no malum per se it is daily done by the owners express consent and by a Law without their express consent And as the Law is the Lord of a Villain may transferr his Villains property in Lands or Goods to himself by entry or seisure And it is the signal difference between a Freeman and Villain that it cannot be done to a Freeman nor yet to a Villain to the use of any but his Lord. The Learned and Judicious Grotius in his excellent Work de Jure belli ac pacis is most apposit upon this subject Grot. de Jure belli ac pacis l. 1. c. 1. Sect. 5 6. Sicut ergo ut bis duo non sint quatuor ne à Deo quidem potest effici ita ne hoc quidem ut quod intrinseca ratione malum est malum non sit And then follows after some further explanation of his notion Ita si quem Deus occidi praecipiat aut res alicujus auferri non licitum fiet Homicidium aut furtum quae voces vitium involvunt sed non erit Homicidium aut furtum quod vitae rerum supremo Domino auctore fit And it is the same to say Si quem Lex occidi praecipiat aut res alicujus auferri non licitum fiet homicidium aut furtum quae voces vitium involvunt sed non erit homicidium aut furtum quod a lege vitae rerum potestatem habente auctore fit If any need further satisfaction concerning what hath been said on this occasion he may resort with success to the place quoted of that great Lawyer But it is to be observed That altering or changing property is no subject matter for a dispensation A man is not dispens'd with to do an act which he cannot do but to do an act which simply he can do but the Law prohibits his doing it penally But altering or changing property is an act simply out of his power to do which should be dispens'd with in that behalf And thus we see violation of property is a malum per se by that Book of 11 H. 7. and the reason why it is so and cannot be dispens'd with A third kind of malum per se by that Case of 11 H. 7. 11 H. 7. is that which the Law of the Land admits to be specially prohibited Jure Divino Et Isint le Roy ne nul Evesque ou Presbiter poit doner licence a un de faire Lechery Quia est malum in se saith the Book that is Coition without wedlock which offence when by mutual consent injures no property having two husbands or two wives at the same time but that is also against the property of the first husband or wife marriage within the Levitical degrees 32 H. 8. c. 38. All which are admitted by the Law of the Land to be prohibited Jure Divino and cannot be dispenc'd with For no Human authority can make lawful what Divine authority hath made unlawful without Gods leave and then it is by his authority Many more particulars fall under this head which I shall not now mention Hence I infer mala in se to be only such as imply a contradiction to be made lawful and consequently what may be made lawful by Human Law to be no malum in se as not differing from other things which may be permitted or prohibited occasionally at the
the first Cestuy que use nor his Heir the last Cestuy que use in the Case could nor can have any benefit of this warranty because William the first Cestuy que use nor his Heir could not nor can warrant to himself but as to William and his Heirs the warranty is clearly extinct The Argument And as to the first Question I conceive the Law to be that the warranty of William the Tenant in tayl descending upon Elizabeth and Sarah the Demandants his Heirs at Law is no barr in the Formedon in Reverter brought by them as Heirs to William their Grandfather the Donor though it be a Collateral warranty I know it is the perswasion of many professing the Law That by the Statute of Westminster the second De donis conditionalibus the Lineal warranty of Tenant in tayl shall be no barr in a Formedon in the Descender but that the Collateral warranty of Tenant in tayl is at large as at the Common Law unrestrain'd by that Statute Sir Edward Coke in his Comment upon Section 712. Sect. 712. of Littleton A lineal warranty doth not bind the right of an Estate tayl for that it is restrain'd by the Statute de donis Conditionalibus And immediately follows A lineal warranty and assets is a barr of the right in tayl and is not restrain'd But the reason why the warranty of Tenant in tayl with Assets binds the right of the Estate tayl is in no respect from the Statute de donis but is by the Equity of the Statute of Glocester by which the warranty of Tenant by the Courtesie barrs not the Heir for the Lands of his Mother if the Father leave not Assets to descend in recompence And therefore it was conceived after the Statute de donis was made That if Tenant in tayl left Assets to descend in Fee-simple his warranty should bind the right of the Issue in tayl by the equity of that preceding Statute of Glocester Whereas if the Statute of Glocester had not been the Lineal warranty of Tenant in tayl had no more bound the right of the Estate tayl by the Statute de donis with Assets descending than it doth without Assets For the better clearing therefore of the Law in the Case in question I shall preparatorily assert some few things and clear what I so assert without which the truth of the Conclusion I hold will not appear so naked to the Hearers as it should Ass 1. The first is That at the Common Law the distinction of a lineal and collateral warranty was useless and unknown For though what we now call a Collateral and a lineal warranty might be in speculation and notionable at the Common Law as at this day a Male warranty or a Female warranty may be yet as to any effect in Law there was no difference between a Lineal warranty and a Collateral but the warranty of the Ancestor descending upon the Heir be it the one or the other did equally bind And this as it is evident in it self so is it by Littleton whose words are Litt. Sect. 697. Before the Statute of Glocester all warranties which descended to them who are Heirs to those who made the warranties were barrs to the same Heirs to demand any Lands or Tenements against the warranties except the warranties which commence by disseisin Therefore if a Question had been at the Common Law only Whether in some particular Case the Ancestors warranty had bound the Heir It had been a sensless Answer to say it did or did not because the warranty was Lineal or Collateral for those warranties were not defined at the Common Law nor of use to be defined But the proper Answer had been That the warranty did bind the Heir because it commenc'd not by disseisin for every warranty of the Ancestor but such descending upon the Heir did bind him So if after the Statute of Glocester Tenant by the Courtesie had aliened with warranty had it been demanded if the Heir were barr'd by that warranty it had been an absurd Answer That he was not because it was a Collateral warranty of his Father without Assets For all Collateral warranties of the Father were not restrained but his warranty in that Case which could be no other than Collateral was restrained by the Statute Therefore The adequate Answer had been That the Fathers warranty bound not in that Case without Assets because the Statute of Glocester had so restrained it My second Assertion is Ass 2. That the Statute de Donis restrains not the warranty of Tenant in tayl from barring him in the Remainder in tayl by his warranty descending upon him 1. For that the mischief complained of and remedied by the Statute is That in omnibus praedictis casibus therein recited post prolem suscitatam habuerunt illi quibus Tenementum sic conditionaliter datum fuit hucusque potestatem alienandi Tenementum sic datum exhaeredandi exitum eorum contra voluntatem Donatoris But the warranty of the Donee in tayl descending upon him in the Remainder who regularly claims by purchase from the Donor and not by descent from the Donee in tayl could be no disinheriting of the Issue of the Donee claiming by descent from him against which disinheriting only the Statute provides which is evident by the Writ of Formedon in the Descender framed by the Statute in behalf of such Issue of the Donee whom the Statute intends 2. The Statute did not provide against Inconveniences or Mischiefs which were not at the time of making the Statute but against those which were But at the making of it there could be no Remainder in tayl because all Estates which are Estates tayl since the Statute were Fee-simples Conditional before the Statute upon which a Remainder could not be limited So is Sir Edward Coke in his Comment upon the Statute de Donis The Formedon in Reverter did lye at Common Law Cok. part 2. f. 336. but not a Formedon in Remainder upon an Estate tayl because it was a Fee-simple Conditional whereupon no Remainder could be limited at Common Law but after the Statute it may be limited upon an Estate tayl in respect of the Division of the Estates 3. The Statute formed a Writ of Formedon in the Descender for the new Estate tayl created by the Statute and mentions a Formedon in the Reverter as already known in the Chancery for the Donor for whom the Statute likewise intended to provide but formed or mentioned none for the Remainder in tayl And the Cases are common in Littleton Litt. Sect. 716 718 719. and in many other Books that the warranty of Donee in tayl is Collateral to him in the Remainder in tayl and binds as at the Common Law But thence to conclude That therefore the warranty of the Donee in tayl shall barr the Donor of his Reversion because it is a Collateral warranty also is a gross Non sequitur for the Donees warranty doth not therefore barr
then Vous saves bien que de ley cestuy que demand per Formedon in Reverter ne serra barr per le garranty cestuy à que les Tenements fuerunt done in tayl sil ne eyt per descent tout soit il heire à luy le quel Roy ad per descent ou non ne poiomus enquire And on this Case Sir Edward Coke makes an Observation That the King was not bound by a Collateral warranty for the Reversion of an Estate in tayl no more is any other Donor by that Case So as Sir William Herle's Iudgment who was then Chief Justice of the Common Pleas in three several years and several Cases was directly contrary to what Finchden 41 E. 3. said it was upon Report Besides the contrary of what my Brother Ellis urg'd from this Case may be thus inferr'd out of it This Case admits that the Statute restrains the warranty of the Donee from barring some Donor viz. a Donor stranger in blood as was said for it restrains Alienation without warranty against all Donors but the Statute did not restrain the Donees warranty from barring such a Donor for his warranty could never descend upon a stranger and the Statute did not restrain a thing which could not be Therefore ex concesso the Statute restrained the Donees warranty from barring the Donor of blood to the Donee 7 E. 3. 34. p. 44. 5. The fifth Objection was a Case 7 E. 3. that Tenant in tayl made a Feoffment in Fee and died issuless and the Feoffee rebutted the Donor by the warranty This Case rightly understood is not to the purpose for the Donor was not rebutted by the warranty of Tenant in tayl which is the present question but by the Donors own warranty The Case was That A. gave Land to W. and E. his wife Habendum praedictis W. E. haeredibus inter se legitime procreatis and warranted those Tenements to the said W. E. haeredibus eorum seu assignatis The Heir in tayl made a Feoffment in Fee and died leaving no Issue inheritable and the Donor was rebutted in his Formedon in Reverter by his own warranty having warranted to the Donee his Heirs and Assigns and the Feoffee claimed as Assignee And it was adjudg'd against the Donor after in the same year as appears 46 E. 3. f. 4. b. and there admitted good Law 46 E. 3. f. 4. b. But Sir Edward Coke denies this Case to be Law now saying That the warranty determined with the Estate tayl to which it was first annexed and doubtless it did so as to Voucher but whether as to Rebutter of the Donor the party rebutting having the Land though another Estate in it and deriving the warranty to himself as Assignee is not clear 6. A sixt Objection was made from a Case 27 E. 3. f. 83. of a Formedon in Reverter brought 27 E. 3. f. 83. pl. 42. and the Deed of Tenant in tayl Ancestor to the Demandant shewed forth but the Book mentions no warranty but it is like it was a Deed with warranty and the Plaintiff durst not demurr but traversed the Deed as any would avoid demurring upon the validity of an Ancestor's Deed when he was secure there was no such Deed of the Ancestor 7. 4 E. 3. f. 56. pl. 58. The last Objection was a Case 4 E. 3. f. 56. p. 58. where Tenant in tayl made a Feoffment with warranty and the warranty descended upon him in the Remainder in tayl which barr'd him which is a Case agreed as before For the Statute of Westminster the second provides not at all for hâ—m in Remainder but as to him Tenant in tayls warranty is left as at Common Law In 4 E. 3. a Formedon in the Descender was brought by the Issue in tayl and the Release of his elder Brother 4 E. 3. f. 28. pl. 57. with warranty was pleaded by the Tenant Stoner who gave the Rule in the Case Le statute restraynes le power del Issue in tayl to alien in prejudice of him in the Reversion by express words and à Fortiori the power of the Issue in tayl is restrain'd to alien in prejudice of the Issue in tayl Whereupon the Tenant was rul'd to answer and pleaded Assets descended Here it was admitted 10 E. 3. f. 14 pl. 53. the Issue in tayl could not alien with warranty in prejudice of the Reversioner And in 10 E. 3. soon after a Formedon in Reverter being brought and the warranty of Tenant in tayl pleaded in barr Scot alledg'd the restraint of the Statute as well for the Reversioner as for those claiming by descent in tayl The same Stoner demanding if the Ancestor's Deed was acknowledg'd and answered it was His Rule was That the Iudgment must be the same for the Reversioner as for the Issue in these words Ore est tout sur un Judgment which can have no other meaning considering Scot's words immediately before that the Law was the same for the Reversioner as for the Issue in tayl and Stoner's Opinion in the Case before to the same effect 4 E. 3. Objections from Modern Reports Moore f. 96. pl. 239. In Moore 's Reports this Case is A man seis'd of Land having Issue two Sons devis'd it to his youngest Son in tayl and the eldest Son died leaving Issue a Son the youngest aliened in Fee with warranty and died without Issue the Son of the eldest being within age If this Collateral warranty shall bind the Son within age without Assets notwithstanding the Statute of Westminster the second was the question And the Opinions of Plowden Bromley Solicitor Manwood and Lovelace Serjeants and of the Lord Dyer and Catlin Chief Iustice were clear That it is a Collateral warranty and without Assets did barr notwithstanding his Nonage for that his Entry was taken away And this was the Case of one Evans 12 13 of the Queen as it was reported to me This Opinion makes against me I confess but give it this Answer 1. This Case is not reported by Sir Francis Moore but reported to him non constat in what manner nor by whom 2. It was no Judicial Opinion for Plowden Bromley Solicitor two Serjeants Manwood and Lovelace are named for it as well as Dyer and Catlin who were then Chief Iustices of the several Courts which proves the Opinion not only extra-judicial but not given in any Court 3. The motive of their Opinion was because the warranty was Collateral which is no true reason of the binding or not of any warranty 4. An extra-judicial Opinion given in or out of Court is no more than the Prolatum or saying of him who gives it nor can be taken for his Opinion unless every thing spoken at pleasure must pass as the speakers Opinion 5. An Opinion given in Court if not necessary to the Judgment given of Record but that it might have been as well given if no such or a contrary Opinion had
no such Case in 38 E. 3. f. 26. but the Case intended is 38 E. 3. f. 21. and he quotes the folio truly in his Littleton But the Case is not That an Assignee may rebutt or have benefit of a warranty made to a man and his Heirs only but that a warranty being made to a man his Heirs and Assigns the Assignee of the Heir or the Assignee of the Assignee though neither be Assignee of the first Grantee of the warranty shall have like benefit of the warranty as if he were Assignee of the first Grantee which hath been often resolv'd in the old Books To the same purpose he cites a Case out of 7 E. 3. f. 34. 46 E. 3. f. 4. which doth but remember that of 7. as adjudg'd That the Assignee of Tenant in tayl might rebutt the Donor whence he infers as before that the Tenant in possession might rebutt without any right to the warranty But the Inference holds not from that Case The Case of 7 E. 3. was That Land was given in tayl and the Donor warranted the Land generally to the Donee his Heirs and Assigns the Donee made a Feoffment in Fee and died without Issue and the Donor impleading the Feoffee was rebutted because he had warranted the Land to the Donee his Heirs and Assigns and the Feoffee claimed as Assignee of the Donee and therefore rebutted not because he had a bare possession But this Judgment of 7 E. 3. Sir Edward Coke denies and perhaps justly to be Law now because the Estate tayl being determin'd to which the warranty was first annex'd the whole warranty determin'd with it But however the Case no way proves what it is alledg'd for in Lincoln Colledge Case That a man may rebutt without ever shewing the warranty extended to him for the Feoffee did in that Case shew it So in the Case 45 E. 3. f. 18. the Feme who rebutted shew'd she was Grantee of the warranty To this may be added That what is delivered as before in Lincoln Colledge Case is neither conducing to the Judgment given in that Case nor is it any Opinion of the Judges but is Sir Edward Coke's single Opinion emergently given as appears most clearly in the Case To conclude When the Feoffees were seis'd to the use of William Vescy for his life and after to the use of the Defendant his wife for her life and after to the use of the right Heirs of William Vescy And when by Operation of the Statute of 27 H. 8. the possession is brought to these uses the warranty made by William Vescy to the Feoffees and their Heirs is wholly destroy'd For if before the Statute the Feoffees had executed an Estate to William for life the Remainder to his wife for life the Remainder to his right Heirs The warranty had been extinguish'd by such Execution of Estate and releas'd in Law for it could be in none but in William and his Heirs who could not warrant to himself or themselves By Littleton Sect. 743. for his Heirs in such Case take not by Purchase but Limitation because the Freehold was in him with a Remainder over to his right Heirs and so hath as great an Estate in the Land as the Feoffees had and then the warranty is gone by Littleton Litt. Sect. 744. And now the Statute executes the possession in the same manner and the warranty is in none for the time present or future but extinct If the warranty had been to the Feoffees their Heirs and Assigns it might have been more colourably question'd Whether the mean Remainder were not an Assignee of the Feoffees and so to have benefit of the warranty but the warranty being to the Feoffees and their Heirs only no Estate remaining in them no Assignee can pretend to the warranty 2. William Vescy could by no possibility ever warrant this Estate to the Defendant during his life and where the warranty cannot possibly attach the Ancestor it shall never attach the Heir as by Littleton's Case If a man deviseth Lands in Fee to another with warranty for him and his Heirs his Heirs shall not be bound to the warranty because himself could never be And though in that Case the Estate to be warranted commenc'd after the death of the Warranter and here the Remainder to the wife is in being before his death yet the reason differs not for himself could no more warrant this by any possibility than that and his Heir might as equally warrant the Estate devis'd as this Next Justice Jones in Spirt and Bences Case cites a Case 7 Eliz. the same with this Resolution resolved in the Common Pleas That the mediate Remainder could not be warranted In this Case if the Feoffees before the Statute had either voluntarily or by coercion of the Chancery after the death of the first Cestuy que use for life executed the Estate of the mean Remainder such person in Remainder could have no benefit of the warranty being but an Assignee of the Feoffees because the warranty was only to them and their Heirs No more can the person in Remainder here whose Estate is executed by the Statute be warranted more than if such Estate had been executed by the Common Law There are another sort of persons who may rebutt and perhaps vouch who are neither Heirs nor formally Assignees to the Garrantee but have the Estate warranted dispositione instituto Legis which I conceive not to differ materially whether they have such Estate warranted by the Common Law or by Act of Parliament The first of this kind I shall name Ass p. 9. 35 is Tenant by the Courtesie who as was adjudg'd 35 Ass might rebutt the warranty made to his wives Ancestor yet was neither Heir nor formal Assignee to any to whom the warranty was granted nothing is said in the Book concerning his vouching but certainly the wives Heir may be receiv'd to defend his estate if impleaded by a stranger who may vouch according to the warranty or may rebutt as the Case of 45 E. 3. f. 18. is But this difference is observable also where such a Tenant rebutts it appears what claim he makes to the warranty and so the Inconveniences avoided which follow a Rebutter made upon no other reason than because he who rebutts is in possession of the Land warranted A second Tenant of this kind is the Lord of a Villain 22 Ass p. 37. and therefore the Case is 22 Ass That Tenant in Dower made a Lease for life to a Villain which in truth was a forfeiture for making a greater Estate of Freehold than she had power to make and bound her and her Heirs to warranty the Lord of the Villain entred upon the Land in her life time and before the warranty attach'd the Heir who had right to enter for the forfeiture the Mother died and the Heir entred upon the L. of the Villain who re-entred and the Heir brought an Assise The L. of the Villain
pleaded the warranty and that the Heir if a stranger had impleaded him was bound to warrant the Estate and therefore demanded Judgment if the Heir himself should implead him 1. It is there agreed if the warranty had attach'd the Heir before the Lords entry the Heir had been bound but quaere 2. By that Book it seems the Lord impleaded by a Stranger might have vouch'd the Heir if the warranty had attach'd him before the Lords entry But in this Case it appears the Lord was no formal Assignee of the Villains for this warranty must be as to an Assignee for the Estate warranted was but for life and the Lords Estate was only by order of the Law A third Case of this nature is Where the Ancestor granted Lands to a Bastard with warranty but how far the warranty extended as to the Heirs or Heirs and Assigns of the Bastard appears not in the Case the Bastard died without Issue and consequently without Heir the L. by Escheat entred upon whom the Heir entred the warranty of his Ancestor having not attach'd him before the Bastards death for it seems this was in a Case where the Heir might have entred in his Ancestors life time so avoided his warranty as in the former case of the L. of a Villain by the Book the warranty having not attach'd him during the Bastards life the Lord by Escheat could have no benefit of it but if it had attach'd him he might ut videtur In this Case if the warranty were to the Bastard and his Heirs only it determined he dying without Issue and then there could be no Rebutter or Voucher by the Lord by Escheat if the warranty had attach'd the Heir but if it were to him his Heirs and Assigns then the Lord whose title is by the Act and Disposition of the Law and not as Assignee in the per had notwithstanding the benefit of this warranty quod nota These Cases are mentioned in Lincoln Colledge Case and in Spirt and Bences Case in Cr. 1. and in both places admitted for Law Nor seems this very unreasonable That the warranty being an incident to the Estate warranted should accompany it where the Law dispos'd the Estate and Land warranted to all intents 2. In many Cases the Law disposing the Estate if the warranty attended it not the disposition made by the Law were in vain for without the warranty the Estate may be necessarily avoided Such persons who come to the Estate dispositione Legis are not properly in in the post but they modally have the Estate by consent both of the Warranter and Garrantee because they have it by the Act of Law Statute or Common to whose dispose every man is as much consenting and more solemnly than he is to his own private Deed. And after this way if the two last Cases be Law the Cestuy que use having his Estate by operation and appointment of the Statute of Uses of 27 H. 8. may have the benefit of the warranty attending the Estate though he be no formal Assignee or Heir to the Feoffees to use Many other Estates are of this kind as Tenant in Dower if endowed of all the Land warranted An Occupant Tenants by the Statute of 6 R. 2. c. 6. where the Feme consents to the Ravisher Tenant by 4 5 P. M. because the ward consented to her taking away without the Guardians consent Lands warranted which after become forfeited to the King or other Lords c. Quaere in the Cases of 22 Ass p. 37. 29 Ass p. 34. Whether notwithstanding the warranty had descended upon the Heir while the Lands were in the possession of the Villain in the first Case and of the Bastard in the second Case before any entry made by either Lord the Lands could have rebutted or vouched by reason of those warranties being in truth strangers to the warranty and not able to derive it to themselves any way But if after the warranty descended upon the Villain or Bastard the Villain or Bastard had been impleaded by the Heir and had pleaded the warranty against the Heir and had Judgment thereupon by way of Rebutter then the Lords might have pleaded this Judgment as conclusive and making the Villains Title or Bastard good against the Heir and the Heir should never have recover'd against the Lords And this seems the meaning of the Book 22 Ass p. 37. if well consider'd Though in Spirt and Bences Case no such difference is observ'd Caetera desiderantur The Court was in this Case divided viz. The Chief Justice and Justice Archer for the Demandant and Justice Wylde and Justice Atkins for the Tenant CONCERNING PROCESS Out of the COURTS at WESTMINSTER INTO WALES Of late times and how anciently Memorandum These Notes following were all wrote with the proper hand of the Chief Justice Sir John Vaughan and intended to be methodised by him in order to be delivered in Court A Man taken upon a Latitat in England 10 Jac. Bolstrode part 2. f. 54 55. Hall and Rotherams Case puts in two Welch men for his Bayl Judgment passing against him it was a Question Whether after a Capias ad Satisfaciendum issued against the Principal who was not to be found Process might issue into Wales which must be by Scire Facias first against the Bayl whereupon Mann the Secondary of the Kings Bench informed the Court that it had been so done in like Cases many times But the Court was likewise informed that Brownloe Chief Pronotary of the Common Pleas affirmed they did not then use to send such Process into Wales but only Process of Outlawry But Mann affirming that their Course was otherwise in the Kings Bench the Court awarded Process into Wales against the Bayl and said If the parties were grieved they might bring their Writ of Error 1. This Award of the Kings Bench hath no other Foundation to justifie it than Mann 's the Secondaries Information That the like had been often done which was his own doing possibly and never fell under the Consideration of the Court. 2. The Court weighed it no more than to say The parties grieved might have a Writ of Error which by the way must be into the Parliament for it concerned the Jurisdiction of the Court which the Act of 27 Eliz. for Errors in the Exchequer Chamber excepts and upon that ground any injustice might be done because the party wronged may have a Writ of Error 3. Brownloe the Chief Pronotary of the Common Pleas and a most knowing man affirm'd no such Process issued thence into Wales and but only Process of Outlawry So as this awarding of Process into Wales upon the usage of that Court affirmed by Mann is counter'd by the contrary usage of the Common Pleas affirmed by Brownloe Therefore that Book and Authority is of no moment to justifie the issuing of a Scire facias into Wales 11 Jac. Bolstrode part 2. f. 156 157. Bedo v. Piper The next Case
as the Kings Bench 157 Commendam 1. Capere in Commendam is good where the Patron is not prejudiced 25 2. Retinere in Commendam is good where consented to by him that was to present to the Avoidance 25 3. Commendam Retinere may be for years 24 25 4. How many Benefices a Bishop may retain by a Dispensation 25 5. Although the King confirms it yet the Incumbent derives no Estate from the King but only by the Patrons presentment 26 Common See Title Statute 1. 1. No Common of Pasture can be claimed by Custome within the Mannor that may not be prescribed for out of the Mannor 254 2. Inhabitants not Incorporated cannot prescribe in a Common 254 3. How Copyholders must prescribe for Common ibid. 4. Where the Tenant may prescribe to have sola separalis Communia and where not 255 256 5. One or more Tenants may have solam separalem Communiam from other Commoners but not from the Lord 256 6. Where the Commoner claims habere solam separalem Pasturam how and upon what Action Whether the Lord shall be excluded or no the matter will come in question 253 7. Where a Commoner prescribes for Common for Cattel levant and couchant Antiquo Messuagio without any Land the prescription is naught because Cattel cannot be levant and couchant to a Common intent upon a Messuage only 252 253 8. Where the Lord may approve against the Commoners being an Exposition of the Statute of Merton 256 257 Common Pleas Court 1. The Common Pleas or Exchequer may upon the Return of a Habeas Corpus d scharge a Prisoner if it appear the Imprisonment is against Law 157 2. If the Imprisonment is just or doubtful and uncertain the Common Pleas cannot bayl him but must remand him 157 3. A Prohibition for incroaching of Jurisdiction lies in the Common Pleas 157 Condition 1. The difference between a Condition and Limitation 32 2. A Devise to the Son and Heir and if he did not pay all the Legacies that then it shall remain to the Legatees In default of payment this shall vest in the Legatees by Executory Devise 271 Condition of an Obligation 1. A Bond is entred into with Condition for quiet Enjoyment the Defendant pleads that the Plaintiff entred and might have quietly enjoyed the Plaintiff replyed That he was outed by J. S. the Replication is void because he did not say that J. S. had a good Title 121 122 Confirmation 1. A Confirmation cannot be for a time 27 2. Where it shall enlarge an Estate 44 45 3. The Kings Confirmation of a Commendam transfers no Right to the Incumbent 26 Constable See Title Officer  Construction of Law See Title Law 1. It is both equitable and of publick convenience that the Law should assist men to recover their dues when detained from them 38 2. It is an absurdity to say That a man hath a Right to a thing for which the Law gives him no remedy 47 138 Copyholder 1. They cannot prescribe against the Lord to have solam separalem Pasturam 254 255 2. How the Copyholders must prescribe for Common 254 Corporation 1. The King may dispense with a Corporation for any thing which in its nature may be dispensed with 347 348 2. The King may dispense with a Corporation as to penal Laws 349 350 3. What Licenses made by the King to Corporations are good and several instances of them 348 349 350 4. What Licenses to a Corporation are not good 351 352 Costs See Damages 1. Upon a Nonsuit or Discontinuance upon an Action brought against Officers they shall have their double Costs by the Statute of the One and twentieth of King James 117 Covenant 1. All Covenants between the Lessor and Lessee are Covenants in Law or express Covenants 118 2. An express Covenant restrains the general Covenant in Law 126 3. Where the Covenant is to enjoy against one or more particular men and where against all men 127 4. By a Covenant in Law the Lessee is to enjoy his Term against the lawful entry or interruption of any man but not against tortious Entries because the Lessee hath his proper remedy against the wrong-doers 118 119 5. If a stranger who hath no right outs the Lessee he shall not bring Covenant against the Lessor because he hath remedy by Action against the stranger But if he enter by elder Title then he shall have Covenant because he hath no other remedy 119 120 6. Though the Covenant is that the Lessee shall enjoy against all persons yet he shall not have Covenant against the Lessor unless he be legally outed 119 120 121 123 7. The Law shall never adjudge that a man covenants against the wrongful acts of strangers except the words are full and express 121 8. When the Covenant is to enjoy against all men the Covenant is not expresly to enjoy against tortious acts neither will the Law so interpret it 123 125 Coverture See Baron and Feme  County Palatine See Title Franchise  Court or Courts See Common Pleas Kings Bench. 1. The Court of Kings Bench cannot pretend to the only discharging of prisoners upon Habeas Corpus unless in case of priviledge but the Chancery may do it without question 157 2. Prohibitions for incroaching Jurisdiction may issue as well out of the Common Pleas as Kings Bench ibid. 209 3. The Judges of the Temporal Courts have full conizance of what Marriages are within the Levitical Degrees and what not 207 4. They have likewise conizance of what Marriages are incestuous and what not and may prohibit the Ecclesiastical Courts from questioning such Marriages 207 5. The Secular Judges are most conizant of Acts of Parliament 213 6. If a Court give Judgment judicially another Court is not bound to give the like Judgment unless it think that Judgment first given to be according to Law 383 7. The Court of the Sessions in London doth not differ in its essence nature and power from another Sessions in the Country but all differ in their accidents which make no alteration in their actings in the eye of the Law 140 Custome See Prescription 1. How things become strangely unnatural to man by custome only 224 Customes for Merchandize See Title Statutes 2 25. 1. The Customes called Custumae Antiquae for Wooll Wooll-fells and Leather were granted by Parliament to King Edward the First in the third year of his Reign and was no Duty at the Common Law 161 162 163 2. The several properties that Wines must have which are lyable to pay Tunnage and Poundage by the Act of 12 Car. 2. 165 3. No goods are to pay Custome but those which are brought in to Merchandize not such as come in by accident as in case of wreck 165 166 171 172 4. By the common Law all wrecks were the Kings and therefore not lyable to pay Custome because they were his own 164 Damages See Costs 1. In an Action upon the Case the whole Debt is
the Kings license must be without any limitation to him that hath it to exercise his Trade as before it was prohibited otherwise it is no license 346 17. Where the King may dispense generally he is not bound to it but may limit his Dispensation 346 18. Where the King can dispense with particular persons he is not confined to number or place but may license as many and in such places as he thinks fit 347 19. A Corporation is capable of a Dispensation 347 348 20. A Dispensation to a person to keep an Office which person is not capable of such Office is void 355 21. Where a license Ex speciali gratia is good to dispense with a penal Law without a Non obstante 356 Distress 1. A privity is necessary by the common Law between the Distrainer and Distrained 39 2. Attornment and power to Distrain follows the possession and not the Use 43 3. Where a Rent is well vested and there is an Attornment when ever the Rent is arrear a Distress is lawful unless the power is lost 39 4. Where Rent is arrear and afterwards the Rent is granted over in Fee and an Attornment thereunto here the Grantor hath lost his arrears and cannot Distrain 40 5. If a Fine is levied of the Reversion of Land or of Rent to Uses the Cestuy que use may Distrain without attornment 50 51 Dominion 1. Dominions belonging to the Crown of England cannot be separated from it but by Act of Parliament made in England 300 2. What are Dominions belonging to the Realm of England though not in the Territorial Dominions of England ibid. 3. By what Title the Crown of England held Gascoign Guyen and Calais 401 Dower 1. The wife of a Conizee of a Fine shall not be thereof endowed because it is but a fictitious Seisin 41 2. The wife is dowable of a Rent in Fee 40 Droit d'Advowson 1. Where the Writ lies and for whom 11 16 2. In a Droit d'Advowson the King may alledge Seisin without alledging any time 56 Ecclesiastical Court See Archbishop Prohibition THe Secular Judges are most conuzant of Acts of Parliament 213 2. The Temporal Judges have conuzance of what marriages are within the Levitical Degrees and what not and what are incestuous 207 3. The Clergy of this Kingdom shall not enact or execute any Canon Constitution or Ordinance Provincial unless they have the Kings license 329 Elegit 1. It lies upon a Recognizance taken in any of the Courts at Westminster or before any Judge out of Term 102 Error See Presidents Iudgment 1. An erroneous Judgment is a good Judgment to all intents whatsoever until reversed 94 2. If an inferiour or superiour Court gives an erroneous Judgment it is reversible by Writ of Error 139 3. Where the matter concerns the Jurisdiction of the Court a Writ of Error lies no where but in Parliament 396 4. A Writ of Error lies to reverse a Judgment in any Dominion belonging to England 290 402 5. A Writ of Error lay to reverse a Judgment in Calais 402 6. It lies to reverse a Judgment in Ireland 290 291 298 402 Escheat 1. Where the Heir at Law dies without heir the Land escheats and the Lord's Title will precede any future Devise 270 Esplees 1. The profits of a Mine is no Esplees for the Land but only the Esplees for the Mine it self 255 2. So likewise for a Wood the profits of it is no Esplees but only for the Land only upon which the Wood grows ibid. Estates See Grant 1. The Law doth not in Conveyances of Estates admit Estates to pass by Implication as being a way of passing Estates not agreeable to the plainness required by Law in the transferring of Estates 261 262 c. 2. But in Devises they are admitted with due restrictions 261 262 263 c. 3. What Executory Devises and contingent Remainders are good and what not 272 273 4. When a new Estate is granted the privity to the old Estate is destroyed 43 5. The Estate may be changed and yet the possession not changed but remain as formerly 42 6. An Estate in a Rent-charge may may be enlarged diminished or altered and no new Attornment or privity requisite 44 45 46 7. The Seisin of the Conizee of a Fine is but a meer fiction and an invented form of Conveyance only 41 8. His wife shall not be endowed neither shall his heir inherit 41 Estoppel or Conclusion 1. A Demise by Indenture of a Term habendum from the expiration of another term therein recited when really there is no such term in esse is no Estoppel to the Lessor or Lessee but the Lessee may presently enter and the Lessor grant the Reversion 82 Evidence 1. No evidence can be given to a Jury of what is Law 143 2. A witness may be admitted to prove the Contents of a Deed or Will 77 3. The Jury may go upon evidence from their own personal knowledge 147 Execution See Elegit 1. Lands Persons or Goods ought not to be lyable to Judgments in other manner than they were at the time of the Judgment given which was where the Court had Jurisdiction which gave the Judgment 398 2. What Execution shall be sued out upon a Recognizance acknowledged in any of the Courts at Westminster or before a Judge 103 3. What Execution shall be sued out upon a Statute 102 4. Upon a Recovery in England an Execution doth not lye into Wales 397 398 5. Perhaps by special Writs to the chief Officer of the King Execution may be made of Judgments given at Westminster in any of his Dominions 420 Executor See Title Statute 10 20. 1. How they are to administer the Testators estate 96 2. An Executor may refuse but cannot assign over his Executorship 182 3. It is no Devastavit in an Executor to satisfie a Judgment obtained upon a simple Covenant before a debt due by Obligation 94 95 97 4. Where an Action of Debt upon Bond or Judgment is brought against him he may confess the Action if there be no fraud in the Case although he hath notice of a former Suit 95 100 5. The Executor may plead an erroneous Judgment in Barr 94 97 6. A Recognizance in Chancery must be paid before Debts upon simple Contracts and Debts by Bond 103 7. It is a Devastavit in an Executor to pay voluntarily a Debt by simple Contract before a Debt by Bond whereof he had notice and not otherwise 94 95 8. It is a Devastavit to satisfie a later Judgment if there are not Assets left to satisfie a former Judgment 95 9. An Action will not lye against Executors upon a Tally because it is no good Specialty 100 10. The pleading of Plene administravit praeter plene administravit ultra and in what Cases it may be pleaded and how 104 Exposition of Words Quam diu 32 Dum ibid. Dummodo ibid. Usually letten 33 34 At any time 34 Or more 35 More or less ibid. Gurges
because the Libel was That the marriage was Incestuous Next a Consultation might be granted unless cause were shew'd for it was no otherwise Because the Suggestion was not That the marriage was out of the Levitical Degrees but that the persons married were extra leges Leviticales which was as if they had said They were not under the Jewish Common-wealth And then a Consultation might be granted upon this Prohibition as upon that of Mann's Case because the Plaintiff did not averr the marriage to be extra gradus Leviticus and ground his Prohibition thereupon As those two Prohibitions were for marrying the Wives Sisters daughter that is the Wives Neece by the Sister So there is a Case in the Lord Hobbard Hobbard f. 181. a. Keppington where one Keppington married his Wives Sisters daughter was questioned for Incest by the High Commissioners and sentenced and entred into Bond to abstain from her Company but was not divorced and therefore the Wife recover'd a Wives Widows Estate in a Copy-hold notwithstanding the Sentence but no Prohibition was in the Case The same Case is in the Reports which pass for Mr. Noye's f. 29. but mistaken for there in place of his Wives sister it is Fathers sister Hill 21. Car. II. This Case was by the King's Command adjourn'd for the Opinion of all the Judges of England Trin. 22. Car. II. The Chief Justice delivered their Opinions and accordingly Judgment was given That a Prohibition ought to go to the Spiritual Court for the Plaintiff Mich. 20 Car. II. C. B. Sir Henry North Plaintiff William Coe Defendant SIR Henry North hath brought an Action of Trespass Quare clausum fregit against William Coe in a Close upon the new Assignment called Westrow-hills containing Fifty Acres a Close called the Heyland containing One hundred Acres and another called the Delf and Brink containing One hundred and fifty Acres in Milden-hall The Defendant pleads That the said places are part of the Mannor of Milden-hall whereof the Plaintiff was seis'd tempore transgressionis suppositae and that he was then and yet is seis'd of an ancient Messuage with the Appurtenances in Milden-hall being one of the free Tenements of the said Mannor and held of the said Mannor by Rents and other Services in his demesne as of Fee That there are divers freehold Tenements time out of mind in the said Mannor held by several Rents and Services parcel of the said Mannor and that there were and are infra candem Villam divers customary Tenements parcel of the said Mannor grantable Ad voluntatem Domini by Copy That all the Tenants of the free Tenements time out of mind habuerunt usi fuerunt and all the Tenants of the Customary Tenements Per consuetudinem ejusdem Manerii in eodem Manerio à toto tempore supradict usitat approbat habuerunt habere consueverunt solam separalem Pasturam praedict Clausi vocat Westrow-hills cum pertinen for all their Cattel Hogs Sheep and Northern Steers except levant and couchant upon their respective Messuages and Tenements every year for all times of the year except from the Feast of St. Edmond to the Five and twentieth of March next following as belonging and pertaining to their several Tenements And likewise had and used to have solam separalem Pasturam praedict Clausi vocat Westrow-hills from the Feast of St. Edmund every year to the Five and twentieth of March for feeding of all their Cattel Hogs Sheep and Northern Steers except levant and couchant c. Excepted that the Tenants of the Demesne of the Mannor every year from the said Feast to the Five and twentieth of March by custome of the said Mannor depastured their Sheep there That at the time of the Trespass the Defendant put in his own Cattel levant and couchant upon his said Messuage Prout ei bene licuit and averreth not that none of his said Cattel were Porci Oves or Juvenci called Northern Steers but Petit Judicium The like Plea he makes for the Closes called the Haylands Delf and Brink but that the free Tenants as before and customary Tenants had solam separalem Pasturam pro omnibus averiis Porcis Ovibus Juvencis called Northern Steers excepted for all times of the year And that he put in Averia sua levantia cubantia super tenementum praedictum prout ei bene licuit Petit Judicium Cum hoc quod verificare vult quod nullus bovium praedict ipsius Willielmi suerunt Juvenci vocat Northern Steers Whereas no mention is of putting in Oxen but Averia sua in general and no averment that no Sheep were put in The Plaintiff demurs upon this Plea Exceptions to the Pleading The Defendant saith he was seis'd de uno antiquo Messuagio being one of the freehold Tenements of the said Mannor and that there are divers freehold Tenements within the said Mannor and that omnes Tenentes of the said Tenements have had solam separalem pasturam for all their Cattel levant and couchant except Porcis Ovibus and Juvencis called Northern Steers in the place called Westrow-hills and that he put his Cattel levant and couchant prout ei bene licuit 1. That he was seis'd de uno antiquo Messuagio and of no Land is not proper for Cattel cannot be levant in common intention upon a Messuage only 2. He saith he put in his Cattel levant and couchant but avers not as he ought That none of them were Porci Oves or Northern Steers for Porci there is a Rule of Court 3. He pleads in like manner as to the Hayland Delf and Brink That he put in his Cattel and avers that non Bovium praedict were Northern Steers when as there is no mention of putting in Oxen but Averia generally and no averment that there were no Sheep 4. The Plea doth not set forth the Custome of the Mannor but implicity that the Free-hold and customary Tenants have had and enjoy'd per consuetudinem Manerii solam separalem pasturam for all their Cattel which is a double Plea both of the custome of the Mannor and of the claim by reason of the custome which ought to be several and the Court should judge and not the Jury whether the claim be according to the custome alledg'd The custome may be different from the claim per consuetudinem Manerii if particularly alledg'd Lastly the matter in difference is not before the Court formally by this way of pleading for the matter in question must be Whether the Lord of the Mannor be excluded from pasturing with the Tenants in the place in question or from approving the Common If the Defendant had distrained Damage feasant and the Plaintiff brought his Action and the Defendant avow'd propter solam separalem pasturam the Lords right to depasture had come properly in question and by natural pleading Or if the Lord upon the Tenants plea had taken no notice of sola separalis pastura but had
confessed that the Land was a Common and that he had approv'd the places in question leaving sufficient Pasture for the Tenants if then the Tenant had demurr'd upon his Plea of Sola separalis pastura the right of approving had properly come in question A man hath no right to any thing for which the Law gives no remedy This must be a Common or Nothing 1. If disseis'd the Assise is Quare disseisivit eum de Communia pasturae suae If surcharg'd an Admensuratio pasturae is Quare Superoneravit Communiam pasturam suam 22 Ass p. 48. Cok. Litt. 4. b. Trespass lies not for a Common but doth for Sola separalis pastura granted to one or more jointly But not here where all cannot joyn in Action and several Actions would cause several Fines to the King for the same offence which the Law permits not He cannot avow but for Damage done to his Common not for his Sola separalis pastura 2. No Common or Pasture can be claimed by Custome within the Mannor that may not be prescribed for out of the Mannor for what one might grant another might Foyston Cratchrod's Case 4. Rep. f. 31. But no Prescription can be for Sola separalis pastura out of the Mannor to such Common Therefore they shall not claim it by Custome in the Mannor For Copy-holders must prescribe out of the Mannor that the Lord for himself and his Tenants at will hath always had Common in such a place which Prescription gives the Lord what this Custome would take from him 3. No man enjoys a Real profit convey'd from the Lord which he cannot re-transfer again to the Lords benefit but a Commoner of such a Common cannot Release Surrender Extinguish or otherwise Convey this Common to the Lords benefit Smith Gatewoods Case 3 Jac. Cr. f. 152 6. Rep. f. 59. 15 E. 2. Title Prescript pl. 51. Which is the reason in Gatewood's Case That Inhabitants not corporate cannot prescribe in a Common none of them can extinguish or release that Common he claims A man prescribed in the sole Pasture after carrying of the Hay to a certain time of the year So tempore E. 1. a Prescription for all the Pasture and the Owner of the Soyl could only plough Fitz. pl. 55. super sow and carry his Corn but not depasture the Grass at all But no Case where different persons had by different Title as here in the same ground Solam separalem pasturam Nor no Case where Sola separalis pastura is granted to a man and his Heirs which seems the same as granting omne proficuum terrae For where it is alledged there may be Mines Woods and the like notwithstanding the Grant of Solam separalem pasturam these are casual and not constant profits they may be or not be at all When a man brings an Action as an Entry sur Disseisin or the like where he must alledge Esplees the profit of a Mine will not serve but for the Mine it self which may be a divided Inheritance from the Soyl. So may Woodland be a divided Inheritance from the Soyl and the profit or cutting of that is not Esplees of the Land generally but of the Woodland but the profits of all and every part are the Esplees of the Land and proves seisin of the whole Land which are in the form of pleading the Corn Grass and Hay which are profits pour moy pour tout and where Sola separalis pastura is granted generally away Seisin cannot be alledg'd in taking any of these It is agreed generally for Law Cok. Litt. f. 122. a. That a Prescription to have Solam separalem Communiam incertain Land doth not exclude the Owner of the Soyl to have Pasture or Estovers But by that Book a man may prescribe to have Solam vesturam terrae from a certain day to a certain day in the year and so to have Solam pasturam terrae And so are the Books of 15 E. 2. pl. 51. and of E. 1. pl. 55. in Fitz-herbert Title Prescription but they go no further nor determine what Estate he hath who claims Solam separalem pasturam to him and his Heirs excluding the Lord wholly from any Pasture Hay or Corn. In granting or prescribing to have Solam separalem Communiam why the Lord is not excluded is not clear by that Book or any other For There are two notions or senses of the word Communia the one as it signifies that Interest in the Common which one Commoner hath against another not to have the Common surcharg'd And is that Interest Fitz. Na. Br. de Admensuratione pasturae f. 125. a. to which the Writ De Admensuratione pasturae relates which only lies for Commoner against Commoner and not for a Commoner against the Lord or for the Lord against a Commoner as is clear by Fitz-herbert And in this sense there may be Sola separalis Communia for only one may have right of Common and no more either by Grant or Prescription So in this sense one part of the Tenants of a Mannor may have the sole right of Commoning in a certain place excluding the other part of the Tenants Foyston's C. 4. Rep. and may claim there Solam separalem Communiam à caeteris Tenentibus Manerii The other notion of Communia is when one or more hath right to Pasture with the Owner of the Soyl and in this sense it is impossible for a man to have solam separalem Communiam for one cannot have that alone which is to be had with another nor do that alone which is to be done with another So as a man may have Solam separalem Communiam in that sense that none is to be a Commoner but himself but not in that sense that none else should depasture the Land but he for Communia cannot signifie an absolute several As 't is a Contradiction that a Common which is to more than one can be a several and belong but to one So it is an equal Contradiction That what in its nature is to be the right of one only can be Common and the right of more than one Others cannot have what is only to be had by me more than I can have only what is to be had by others with me Therefore Sola separalis Pastura may be enjoyed by one or by many jointly and by way of Survivor but not by many by different Titles as belonging to several Free-holds for Sola separalis pastura can be but Soli separatim Na. Br. f. 231. a. l. c. 8 E. 4. f. 17. Br. grants pl. 95. If the King had a Corody from an Abby of two or three loaves of Bread per diem and of so many measures of Drink this might be granted to two or three several persons But if he had a Corody of one Meal a day or Sustentationem unius Valecti per diem this