Revocation or not at all which revocation must depend upon the construction and exposition of the sixth Paragraph in the Statute of Frauds c. the words whereof are Viz. That no Devise of Lands c. or any clause thereof shall be Revoked otherwise than by some Codicil in Writing or other Writing declaring the same or by burning cancelling tearing or obliterating the same by the Testator himself or in his presence and by his direction or consent But all devises of Lands c. shall be good until burnt cancell'd torn c. by the Testator c. or unless the same be altered by some other Will or Codicil in Writing or other Writing of the Devisor signed in the presence of three Witnesses declaring the same So that the Question will be whether a Will which revokes a former Will ought to be signed by the Testator in the presence of three Witnesses 'T is clear that a Will by which Lands are devised ought to be so signed and why should not a Will which revokes another Will have the same formality The Statute seems to be plain that it should for it saies that a Will shall not be revoked but by some Will or Codicil in writing or other writing of the Devisor signed by him in the presence of three or four Witnesses declaring the same which last Clause is an entire sentence in the disjunctive and appoints that the Writing which revokes a Will must be signed in the presence of three Witnesses c. Before the making of this Act it was sufficient that the Testator gave directions to make his Will tho' he did never see it when made which mischief is now remedied not in writing the Will but that the Party himself should sign it in the presence of three Witnesses and this not being so signed but only published by the Testator in their presence 't is therefore no good Revocation Iustice Street was of a contrary Opinion that this was a good Revocation That the words in the fifth Paragraph of this Statute which altered the Law were Viz. That all Devises of Lands c. shall be in Writing and signed by the Party so devising or by some other person in his presence and by his express Directions and shall be attested and subscribed in the presence of the Devisor by three or four credible Witnesses In which Paragraph there are two parts 1. The act of the Devisor which is to sign the Will but not a word that he shall subscribe his Name in the presence of three Witnesses 2. The act of the Witnesses viz. that they shall attest and subscribe the Will in the presence of the Devisor or else the Will to be void But the sixth Paragraph is penn'd after another manner as to the Revocation of a Will which must be by some Codicil in writing or other Writing declaring the same signed in the presence of three Witnesses Now here is a Writing declaring that it shall be revoked not expresly but by implication and though that Clause in the disjunctive which says that the revocation must be by some Writing of the Devisor signed in the presence of three Witnesses c. yet in the same Paragraph 't is said that it may be revoked by a Codicil or Will in Writing and therefore an exposition ought to be made upon the whole Paragraph that the intention of the Law may more fully appear Such a construction hath been made upon a whole Sentence Sid. 328. 1 Sand. 58. where part thereof was in the disjunctive as for instance viz. A Man was possessed of a Lease by disseisin who assigned it to another and covenanted that at the time of the assignment it was a good true and indefeasable Lease and that the Plaintiff should enjoy it without interruption of the Disseisor Or any claiming under him in this Case the Diffeisee re-entred and though the Covenant was in the disjunctive to defend the Assignee from the Disseisor or any claiming under him yet he having undertaken for quiet enjoyment and that it was an indefeasable Lease it was adjudged that an exposition ought to be made upon the whole Sentence and so the Plaintiff had Iudgment The Chief Iustice Herbert was of the same Opinion with Iustice Street Rex versus Grimes and Thompson THE Defendants were indicted for being Common Pawn-Brokers Two are indicted for a Confederacy one is acquitted and that is the acquittal of the other and that Grimes had unlawfully obtained Goods of the Countess of c. and that he together with one Thompson per confoederationem astutiam did detain the said Goods until the Countess had paid him 12 Guineas Thompson was acquitted and Grimes was found Guilty which must be of the first part of the Indictment only for it could not be per confoederationem with Thompsom and therefore it was moved in arrest of Iudgment that to obtain Goods unlawfully was only a private injury for which the party ought not to be indicted To which it was answered that a plain Fraud was laid in this Indictment which was sufficient to maintain it and that tho one was acquitted yet the Iury had found the other guilty of the whole But the Court were of Opinion that the acquittal of one is the acquittal of both upon this Indictment and therefore it was quash'd King versus Dilliston Hill 2 3 Jacobi Rot. 494. A Writ of Error was brought to reverse a Iudgment in Ejectment given in the Common-Pleas Infant not bound by a Custom for one Messuage and twenty Acres of Land held of the Manor of Swafling There was a special Verdict found the substance of which was viz. That the Land in question was Copy-hold held of the said Manor of Swafling in the County of Suffolk and that Henry Warner and Elizabeth his Wife in right of the said Elizabeth were seized thereof for Life Remainder to John Ballat in Fee That the Custom of the said Manor was that if any Customary Tenant doth surrender his Estate out of Court that such Surrender shall be presented at the next Court of the said Manor and publick Proclamation shall be made three Court days afterwards for the Party to whose use the Surrender was made to come and be admitted Tenant and if he refuseth then after three Proclamations made in each of the said Courts the Steward of the said Manor issueth forth a Precept to the Bailiff thereof to seise the Copyhold as forfeited They find that Henry Warner and his Wife and John Ballat made this Surrender out of Court to the use of Robert Freeman and his Heirs who died before the next Court and that John Freeman an Infant was his Son and Heir That after the said Surrender three Proclamations were made at three several Courts held for the said Manor but that the said John Freeman did not come to be admitted Tenant thereupon the Steward of the said Manor made a Precept to the Bayliff who seized the Lands in
place as the Parish of St. James Westminster only And upon a Demurrer it was argued that this Plea was not good for it being in Abatement the Appellee ought to have pleaded over to the Murder Cro. Eliz. 694. so it was adjudged in the Case of Watts and Brain the Pleadings of which Case are at large in my Lord Coke's Entries 2. He ought to have pleaded in person and not by Attorney the Statute of Gloucester is plain in this Point Curia If the Plea is in Abatement and the Party doth not answer over to the Murder yet that doth not oust him of his Plea but the Appellant ought to have prayed Iudgment 'T is a Question whether he ought to plead over to the Felony or not for the Presidents are both ways there is no Iudgment entred Proud versus Piper THere was a Libel brought in the Spiritual Court for a Mortuary Mortuary due only by Custom 21 H. 8. c. 6. The Defendant suggests that by the Statute of H. 8. no Mortuary ought to be paid but in such places where it had been usually paid before the making of that Statute and that there was no Custom in this place to pay a Mortuary and it was thereupon moved for a Prohibition Cro. Eliz. 151. for Mortuaries are not due by Law but by particular Custom of places 'T is true 2 Inst 491. 1 Cro. 237. Seld. of Tithes 287. a Prohibition was denied in the Case of * Sid. 263. Mark and Gilbert but it was because 't was admitted that there a Mortuary was due by Custom but they differed in the person to whom it ought to be paid Curia Prohibitions have been granted and denied upon such Suggestions therefore the Defendant was ordered to take a Declaration in a Prohibition as to the Mortuary and to try the Custom at Law Lutwich versus Piggot IN Ejectment for Lands in Northumberland Lease whether made pursuant to the power in the Reservation tried at the Bar the Case was thus viz. Peter Venables was seised in Fee of the Manor of Long Witton in the said County and being so seised made a Settlement thereof by Lease and Release to the use of himself for Life without impeachment of Waste then to the Trustees for seven years to raise Portions for Daughters then to William Venables and the Heirs Male of his Body and if he dye without Issue then to Ann his Daughter for Life with Remainders over In which Settlement there was this Proviso viz. Provided that it shall be lawful for William Venables by Will or Deed to dispose of any part of the said Manor to his Wife for Life And another Proviso to this purpose viz. Provided that it shall and may be lawful to and for the said William Venables by any Deed in Writing under his Hand and Seal to Demise for 3 Lives or 21 years or under or for any time or term of years upon one two or three Lives or as Tenant in Tail in Possession may do all or any part of the said Manor Lands c. which were in Lease for the space of forty years last past The Defendants Title was a Lease for 99 years made by the said William Venables to one Mary Venables if three Lives should so long live And the Question was whether that Lease was pursuant to the power in the last Proviso It was objected that it was not for it ought to be a Lease for 21 and not 99 years determinable for three Lives But the Plaintiff was Non-Suit Rex versus Fairfax al. AN Order made at the Quarter-Sessions of Gloucester Who shall be bound to take an Apprentice in Husbandry was removed hither confirming another made by the Iustices there for placing of a poor Boy to be an Apprentice in Husbandry and it was moved that it might be quashed Mr. Pollexfen argued that the Iustices had no power given them by the Law to compel a Man to take such an Apprentice and this will depend upon the construction of such Statutes which relate to this matter The first is that of Queen Elizabeth which enacts 5 Eliz. cap. 4. Paragraph 25. that for the better advancing of Husbandry and Tillage and to the intent such who are fit to be made Apprentices to Husbandry may be bound thereunto that every person being an Housholder and having or using half a Plough Land at the least in Till age may take any to be an Apprentice above ten and under eighteen years to serve in Husbandry until the Party be of the Age of twenty one or twenty four years the said Reteiner and taking of an Apprentice to be by Indenture Now before the making of this Statute the practice of putting out poor Children was only in Cities and great Towns to particular Trades and Employments The next Statute is 43 Eliz. by which power is given to the Church-Wardens or Overseers of the Poor 48 Eliz. cap. 2. to raise weekly or otherwise by Taxation of every Inhabitant such competent Sum or Sums of Mony as they shall think fit for relief of the Poor and putting out of Children to Apprentice And then in the fifth Paragraph power is given to them by the Assent of two Iustices of Peace to bind poor Children where they shall see convenient c. which words were the foundation for the making of this Order But the construction thereof can be no otherwise than viz. Whereas before the making of this Act poor Children were bound Apprentices to Tillage now the Church-wardens may raise Mony to bind them out to Trades for if they could compel Men to take them what need was there of raising Mony to place them out This must be the natural construction of that Law 1 Jac. cap. 25. Paragraph 23. which appears yet more plain by the words of a subsequent Statute which continues that of the 43th of Eliz. with this addition that all persons to whom the Overseers of the Poor shall according to that Act bind any Children to Apprentice may take receive and keep them as Apprentices 'T is true the general practice of putting out poor Children seems to warrant this Order but this hath been occasioned upon a Mistake in Mr. Dalton 's Book Dalt 114. who Reported the Resolution of the Iudges in 1633. to be That every Man who by his calling profession or manner of living and who entertaineth and must use Servants of the like quality such must also take Apprentices By this Resolution the Iustices of Peace have been governed ever since But Iustice Twisden would often say that those were not the Resolutions of the Iudges as Reported by Mr. Dalton and therefore the Book was mistaken 2. The Order it self doth not mention that the party to whom this poor Boy was bound Apprentice did occupy any Land in Tillage for so it ought to be otherwise the Overseers of the Poor may bind him to a Merchant or to an Attorny which he called a Free
my Lord Coke to be an allowance by the King 's Grant to any person for the sole buying or selling of any thing restraining all others of that Liberty which they had before the making of such a Grant 3 Inst 181. and this he tells us is against the ancient and fundamental Rights of this Kingdom This Patent agreeth exactly with that Definition 9 E. 3. cap. 1. 18 E. 3. c. 3. 25 E. 3. c. 2. Roll. Abr. 180. 2 R. 2. c. 1. 11 R. 2. c. 7. and therefore it must be against Law 't is against an Act of Parliament which gives Liberty to Merchants to buy and to sell in this Realm without disturbance and 't is expresly against the Statute of 21 Jac. cap. 3. which declares all such Letters Patents to be void That which may give some colour to make such Grants good 2 Inst 540. 11 Rep. is a pretence of Order and Government in Trade but my Lord Coke was of Opinion that it was a hinderance to both and in the end it produced Monopolies There is a great difference between the King's Grant and his Prohibition for the one vests an Interest which is not done by the other and all Prohibitions determine by the King's death but Grants still remain in force Adjornatur Langford versus Webber IN Trespass for the taking of a Horse Justification upon a bare possession good against a wrong doer the Defendant justified for that Joseph Ash was possessed of a Close c. and that the Defendant as his Servant took the Horse in that Close Damage fesant And upon a Demurrer to this Plea for that the Defendant did not shew what Title Ash had to this Close The Councel for the Defendant insisted that it being in Trespass 't is sufficent to say that Ash was possessed because in this Case possession is a good Title against all others But it might have been otherwise in Replevin The Title of the Close is not in question Cro. Car. 138. Yelv. 74. Cro. Car. 571. pl. 10. the possession is only an inducement to the Plea and not the substance thereof which is the taking of the Horse and the Law is plain that where the interest of the Land is not in question a Man may justifie upon his own possession against a wrong-doer Mr. Pollexfen on the other side alledged that damage fesant would bring the Title of the Land in question But the Court gave Iudgment for the Defendant Perkins versus Titus A Writ of Error was brought to reverse a Iudgment given in the Common-Pleas Fine upon an Admittance where it must be certain in Replevin for taking of the Plaintiff's Sheep The Defendant avowed the taking damage fesant The Plaintiff replied that the Lands where c. were Copy-hold held of the Manor of Bushy in Com. Hertf. the Custom whereof was that every Tenant of the said Manor qui admissus foret to any Copyhold Estate should pay a years Value of the Land for a Fine as the said Land is worth tempore Admissionis And upon a Demurrer the Question was 1. Whether this be a good Plea or not as 't is pleaded 2. If it be good as pleaded then whether such a Custom may be supported by Law 1. It was for the Plaintiff in the Writ of Error now and in Michaelmas Term following argued that it was not a good Custom The substance of whose Arguments were that Fines are either certain or incertain those which are incertain are arbitrary and therefore cannot be due of Common Right nor by Custom for there can be no Custom for an incertain Fine and such is this Fine for the value of the Land cannot be known because as this Custom is pleaded it doth not appear whether it shall be a years value past or to come at the time of the admittance of the Tenant A Custom to assess rationabilem denariorum summam for a Fine upon an admittance that is to say 13 Rep. 1. being two years Rent of a Tenant of the yearly value of 53 s. 4 d. is no good Custom A Lease is made for so many years as a third person shall name this is altogether incertain 13 Edw. 3. Fitz. Abr. 273. but when the Term is named then 't is a good Lease but this can be done but once How can this Fine be assessed It cannot be by Iury for then it stands in need of the Common Law and will be therefore void for a Custom must have nothing to support it but usage 1. Neither can this be a good Custom as 't is pleaded because all Customs are made up of repeated Acts and Vsages and therefore in pleading them it must be laid time out of mind which is not done here for admissus foret hath a respect to future admissions and are not to those which are past 2. Here is no time laid when this Fine shall be paid for 't is said Quilibet tenens qui admissus foret c. solvet tantam denariorum summam quantum terra valebat per Annum tempore admissionis c. which last words must be taken to relate to the value of the Land and not to the time when the Fine shall be paid so that if there be such a Custom which is Lex loci and not fully set forth and expressed the Common Law will not help it by any Construction 2. Point Whether such a Custom can be good by Law And they argued that it cannot Where the Fine is certain the Lord may refuse to admit without a tender of it upon the prayer of the person to be admitted 4 Rep. 27. b. but where 't is incertain the Lord is first to admit the Tenant and then to set the Fine the reasonableness whereof is to be determined by Iudges before whom the Case shall depend or upon Demurrer or by a Iury upon proofs of the yearly value of the Land but for non payment of an unreasonable Fine the Lord cannot enter Cro. Eliz. 779. Cro. Car. 196. The Law admits of no Custom to be good but such as is very certain for incertainty in a Custom as well as in a Grant makes both void and therefore 't is held a void Custom for an Infant to make a Feoffment when he can measure an Ell of Cloth Rol. Abr. 565. 6 Rep. 60. Davies Rep. 37. It may be objected that certum est quod certum reddi potest the meaning of which saying must be quod certum reddi potest by something which is certain for if this Rule should be taken to be an answer to incertainties it would destroy all the Books which say a Custom must be certain The Law is very clear Fitz. Bar. 177. 2 Rol. Abr. 264. that a Custom is void for the incertainty therefore this Custom must be void for the value of Land is the most incertain thing in nature and therefore Perjury will not lye for swearing to the value Serjeant Fuller and Mr.
c. yet one Commoner may bring an Action against his Fellow besides in this Case they are not Tenants in Common for every Man is seized severally of his Freehold Adjornatur Ayres versus Huntington AScire Facias was brought upon a Recognizance of 1000 l. Amendment of the word Recuperatio for Recognitio after a Demurrer to shew cause quare the Plaintiff should not have Execution de praedictis mille libris recognitis juxta formam Recuperationis where it should have been Recognitionis praed And upon a Demurrer it was held that the words juxta formam Recuperationis were Surplusage The Record was amended and a Rule that the Defendant should plead over Mather and others versus Mills THE Defendant entred into a Bond to acquir Non damnificatus generally where 't is a good Plea discharge and save harmless a Parish from a Bastard Child Debt was brought upon this Bond and upon Non damnificatus generally pleaded the Plaintiff demurred and Tremain held the Demurrer to be good for if the Condition had been only to save harmless c. then the Plea had been good but 't is likewise to acquit and discharge c. and in such Case Non damnificatus generally is no good Plea 1 Leon. 71. because he should have shewed how he did acquit and discharge the Parish and not answer the Damnification only E contra E contra 2 Co. 3. 2 Cro. 363 364 2 Sand. 83 84. It was argued that if the Defendnat had pleaded that he kept harmless and discharged the Parish such Plea had not been good unless he had shewed how c. because 't is in the affirmative but here 't is in the negative viz. that the Parish was not dampnified and they should have shewed a Breach for though in strictness this Plea doth not answer the Condition of the Bond yet it doth not appear upon the whole Record that the Plaintiff was dampnified and if so then he hath no cause of Action Iudgment for the Defendant DE Term. Sanctae Trin. Anno 1 Gulielmi Mariae Regis Reginae in Banco Regis 1689. Memorandum That on the 4th day of November last past the Prince of Orange landed here with an Army and by reason of the Abdication of the Government by King James and the Posture of Affairs there was no Hillary-Term kept Coram Johanne Holt Mil ' Capital ' Justic Gulielmo Dolben Mil ' Justiciar Gulielmo Gregory Mil ' Justiciar Egidio Eyre Mil ' Justiciar Kellow versus Rowden Trin. 1 Willielmi Mariae Rotulo 796. IN Debt by Walter Kellow Where the Reversion in Fee is expectant upon an Estate Tail and that being spent it descends upon a collateral Heir he must be sued as Heir to him who was last actually seized of the Fee without naming the intermediate Remainders Executor of Edward Kellow against Richard Rowden The Case was this viz. John Rowden had Issue two Sons John and Richard John the Father being seized in Fee of Lands c. made a Settlement to the use of himself for Life the Remainder to John his eldest Son in Tail Male the Remainder to his own right Heirs The Father died the Reversion descended to John the Son who also died leaving Issue John his Son who died without Issue so that the Estate Tail was spent Richard the second Son of John the elder entred and an Action of Debt was brought against him as Son and Heir of John the Father upon a Bond of 120 l. entred into by his Father and this Action was brought against him without naming the intermediate Heirs viz. his Brother and Nephew The Defendant pleaded Quod ipse de debito praed ut filius haeres praed Johannis Rowden Patris sui virtute scripti obligatorii praed onerari non debet quia protestando quod scriptum obligatorium praed non est factum praed Johannis Rowden pro placito idem Richardus dicit quod ipse non habet aliquas terras seu tenementa per discensum haereditarium de praed Johanne Rowden patre suo in feodo simplici nec habuit die exhibitionis billae praed Walteri praed nec unquam postea hoc parat est ' verificare unde pet judicium si ipse ut filius haeres praed Johannis Rowden patris sui virtute scripti praed onerari debeat c. The Plaintiff replied that the Defendant die Exhibitionis billae praed habuit diversas terras tenementa per discensum haereditarium a praed Johanne Rowden patre suo in feodo simplici c. Vpon this pleading they were at Issue at the Assises in Wiltshire and the Iury found a special Verdict viz. that John Rowden the Father of Richard now the Defendant was seized in Fee of a Messuage and 20 Acres of Land in Bramshaw in the said County and being so seised had Issue John Rowden his eldest Son and the Defendant Richard that on the 22th of Januarii 18 Car. I. John the elder did settle the Premisses upon himself for Life Remainder ut supra c. That after the death of the Father John his eldest Son entred and was possessed in Fee-Tail and was likewise entituled to the Reversion in Fee and died in the 14th year of King Charles the II. that the Lands did descend to another John his only Son who died 35th Car. II. without Issue whereupon the Lands descended to the Defendant as Heir of the last mentionted John who entred before this Action brought and was seised in Fee c. But whether upon the whole matter the Defendant hath any Lands by by descent from John Rowden in Fee-simple the Iury do not know c. The Council on both sides did agree that this Land was chargable with the Debt but the Question was whether the Issue was found for the Defendant in regard the Plaintiff did not name the intermediate Heirs It was argued that the Defendant ought to be sued as immediate Heir to his Father and not to his Nephew for whoever claims by descent must claim from him who was last actually seised of the Freehold and Inheritance this is the express Doctrine of my Lord Coke in his first Institutes and if so Co. Lit. 11. the Defendant must be charged as he claims Seisin is a material thing in our Law for if I am to make a Title in a real Action I must lay an actual seisin in every Man 8 E. 3.13 Bro. Assise 6. F.N. B. 212. F. 't is so in Formedons in Descender and Remainder in both which you are to run through the whole Pedegree But none can be Filius Haeres but to him who was last actually seised of the Fee-simple and therefore the Brother being Tenant in Tail and his Son the Issue in Tail in this Case they were never seised of the Fee 1 Inst 14. b. for that was expectant upon the Estate Tail which being spent then John the Father was last seised thereof and
Occupant and let the Land to the Plaintiff until c. Et hoc paratus est verificare The Defendant demurred to this Replication and had Iudgment The Matter now in Debate was upon Exceptions to the Barr. 1. For want of a Traverse that Sir Peter Werburton was seised in Fee at the time of the taking c. 2. For want of a sufficient Title alledged in the Plaintiff for that by the Statue of Frauds all Occupancy is now taken away It was argued that the Replication was good without a Traverse Co. Ent. 504. for where the Plaintiff hath confessed and avoided as he hath done here if he had traversed likewise that would have made his Replication double He confesseth that Sir P. W. was seised in Fee of the Mannor but afterwards the Seisin was expresly alledged to be in Sir George the Father and that the place where was parcel thereof which is a Confession and an Avoidance The Avowant should have traversed this Lease but the Traverse of the Plaintiff upon him had made it a worse Issue Agreeable to this Case in reason is that which was adjudged in this Court in Michaelmas-Term 10 Car. 1. It was in Trespass Cro. Car. 384. the Defendant pleaded that the locus in quo was the sole Freehold of John c. and justified by his Command The Plaintiff replyed that the Land was parcel of the Mannor of Abbots Anne and that W. was seised in Fee and levied a Fine to the use of himself and Wife for their Lives the Remainder to E. for 100 years if he lived so long who after the death of the Cognizors entred and made a Lease to the Plaintiff And upon a Demurrer to this Replication the same Exception was then taken as now viz. that the Plaintiff did not confess and avoid the Freehold of John but the Plaintiff had Iudgment for the Barr being at large and the Title in the Replication being likewise so too the Plaintiff may claim by a Lease for years without answering the Freehold The not concluding with a Traverse is but a form and the Court will proceed according to the Right of the Cause without such form 27 Eliz. c. 5. 't is a defect which after a Ioinder in Demurrer is expresly helped by the Statute of Ieofails which enables the Court to amend defects and want of Forms other than such for which the party hath demurred The Case of Edwards and Woodden is in point Cro. Car. 323. 6 Co. Heyley 's Case Dyer 171. b. 1 Leon. 77 78. contra it was in Replevin the Defendant made Cognizance as Bailiff to Cotton for that the place where c. was so many Acres parcel of a Mannor c. that Bing was seised thereof in Fee who granted a Rent Charge out of it to Sir Robert Heath in Fee who sold it to Cotton c. The Plaintiff in Barr to the Conusance replied and confessed that the Land was parcel of the Mannor c. and that Bing was seised in Fee prout c. and granted the Rent to Sir R. H. but that long before the Seisin of Bing c. one Leigh was seised thereof in Fee who devised it to Blunt for a Term of years which Term by several Assignments came to Claxton who gave the Plaintiff leave to put in his Cattel c. And upon a Demurrer to this Replication an Exception was taken to it for that the Plaintiff did not shew how the Seisin and Grant of Bing to Sir R. H. was avoided for having confessed a Seisin in Fee prout c. that shall be intended a Fee in possession and notwithstanding he had afterwards set forth a Lease for years in Leigh by whom it was devised to Blunt c. and so to Claxton it may be intended that the Grantor was only seised in Fee of the Reversion and therefore the Plaintiff ought to have traversed the Seisin aliter vel alio modo But three Iudges seemed to encline that the Replication was good and that the Plaintiff had well confessed and avoided that Seisin in Fee which was alledged by the Defendant for he had shewed a Lease for years precedent to the Defendants Title and which was not chargeable with the Rent and his pleading that the Grantor Bing was seised in Fee must be only of a Reversion expectant upon that Lease But if his Confession that Being was seised in Fee prout c. shall be intended a Seisin in Fee in possession yet the Replication is good in substance because the Charge against the Plaintiff is avoided by a former Estate and in such Case 't is not necessary to take a Traverse But after all it was held that if it be a defect 't is but want of a Form which is aided by the Statute and that is this very Case now in question The want of a Traverse seldom makes a Plea ill in substance but a naughty Traverse often makes it so because the adversary is tied up to that which is material in it self so that he cannot answer what is proper and material and therefore in Ejectment upon a Lease made by E. I. Yelv. 151. Bedel versus Lull the Defendant pleaded that before E. I. had any thing to do c. M. I. was seised in Fee after whose death the Land descended to his Heir and that E. entred and was seized by Abatement The Plaintiff replied and confessed the Seisin of M. but saith that he devised it in Fee to E. I. who entred absque hoc that E. I. was seized by Abatement and upon a Demurrer this was held to be an ill Traverse for the Plaintiff had confessed the Seisin of M. and avoided it by the Devise and therefore ought not to have traversed the Abatement for having derived a good Title by the Devise to his Lessor 't is an Argument that he entred lawfully and it was that alone which was issuable and not the Abatement therefore it was ill to traverse that because it must never be taken but where the thing traversed is issuable Then it was said that the Conusance was informal because the Avowant should have said that the Locus in quo c. contains so many Acres of Ground c. he only saith that it was parcel of a Mannor besides he neither prays Damages nor Retorn ' Habend ' 2. As to the 2d Point it was said that the Statute of Frauds doth not take away all Occupancy it only appoints who shall be a special Occupant Besides here is a Title within the Statute for a Lease for Lives is personal Assets so is a Term in the Hands of an Executor de son tort and in this Case the entring of one Brother after the death of the other made him an Executor de son tort More 126. Sid. 7. and it was never yet doubted but that there may be such an Executor of a Term. Whereupon it was concluded that the Barr was good both as to the Form
computation of the price of Provisions and other Necessaries in 2 H. 5. and how they encreased in Value from that time till the Queen's Reign it may be reasonably affirmed that 40 s. per Annum about the time when that King lived would bear an equal proportion to 40 l. a year in her Reign and if so it may as reasonably be said that 4 l. per Annum in her days would almost bear the like proportion to 80 l. per annum now because of the vast encrease of Riches by Commerce and otherwise in this last Age and such an Estate doth now qualifie a Man to be of the Grand Jury The 40 s. per annum in King H's Reign was esteemed a sufficient Estate to supply all the common Necessities of Life Wheat being then sold for 12 d. per Quarter and good Gascoign Wine for 40 s. per Tun. It was an Age when 20 Marks per Annum was a very good Allowance to maintain a Student at the Inns of Court but too great a Charge for a Commoner to bear and therefore the Lord Chancellor Fortescue tells us that none but the Sons of Noblemen in Hospitiis illis Leges addiscebant The Jurors in those days were all Knights but are now mean and illiterate persons for 't is a very poor Estate which qualifies them for that Service How can Matters of Fact which often require great Examination be tryed by Men of such narrow Capacities which are generally found amongst Men of 10 l. per Annum for so it will be so long as the Degrees of Fortune make such a vast inequality amongst us Experience teacheth us that Men of such low Fortunes and whose Education is generally amongst the Beasts of the Plow have not the same sense of Honour and Vertue with Men of more elevated Qualities and Conversation there must be danger of Subornation and Perjury among such Jurors And what will the villanous Judgment in Attaint signifie I mean in respect to their Estates viz. That their Goods be confiscate their Lands and Possessions seised into the King's Hands their Houses demolished their Woods felled and their Meadows plowed This is a very dreadful Sentence to a Man of a good Estate which by the very Form of this old Judgment every Juror was supposed to have but 't is an empty sound to a Man of 10 l. per Annum who cannot have all those Possessions and but a very small proportion of either It may be therefore thought necessary that a farther Provision be made that none should be impanelled to try such Issues but Men of 40 l. per Annum or at least such as like the Jurors in Attaint qui multa majora habent Patrimonia than what will qualifie a Petty Juror at this day Gentlemen The following Collection is the Product of your Labours It was borrowed from you at the Bar and 't is but just to restore it I know Men have generally very faint Inclinations to approve any Writings beside their own and seldom declare in favour of a Book till they hear what success it has in the World and even then are biassed by the Multitude who very often condemn without reading or read without Understanding I have heard it often objected though I am still to learn upon what accompt that we have too many Printed Books of the Law already and that it was more certain and intelligible when fewer Volumes of it were published I must confess some of the late Reports are collected with very little Judgment But still there is a necessity of new Books tho' not of such for I would feign know how any Lawyer can now be able to advise his Client with the help and direction only of the Old Books 'T is true we have but few of them but 't is because in former Ages all Causes where the thing in demand did not exceed 40 s. were tried either in the County Court in the Hundred Court or in the Court Baron of the Mannor In those days the great Courts of Record at Westminster were not so full of Suitors as now When Bracton wrote the Justices in Eyre who had the same Power with our Justices of Assise went their Circuits but once in seven years and a long time afterwards even in the Reign of King Henry the Eighth the Judges would often rise from the Bench in Term-time without hearing a Motion or trying of a Cause and I think the Practice did not much encrease till this last Age for Anno 10 Eliz. there was but one Serjeant at the Common-Pleas Barr for a whole Term together and that was Serjeant Bendloes and I do not read that he had any Business there Nay at that time the Court of Chancery had no greater share of Practice than the Courts of the Common Law for in the two and twentieth Year of King Henry the Eighth Sir Thomas Moor being then Lord Chancellor did usually read all the Bills which were exhibited into that Court but Business is now so much encreased that all the Council can scarce find time enough to read the Briefs of such Bills which are filed every Term. But the Law hath now its Residence in Westminster-Hall most Causes of Value are there determined and the great Number of Country Attornies in our days who according to my Lord Coke's Opinion by dayly multiplying Suits have so wonderfully encreased the Business of those Courts that it seems very necessary that the judicial determinations there should by new Books be transmitted to future Ages And though some Cases in this Collection which were adjudged in the late Reign may not have the Authority of Presidents because they taste a little of the Times wherein the Administration of Justice was not so nicely regarded as the Dispensation of such things which were then thought Political Rights yet the Reader will find some good Arguments of Learned Men then at the Bar who endeavoured to support our sinking Laws I do acknowledge that if Men were just honest and impartial to themselves and others there would be no occasion for Books of this nature and because they are not so I will not make an Apology for the Publishing of this I think the Book being done with so much Care may be of good use to the Professors of the Law but submit it to your Judgments I confess I am led by my Profession to Affairs of this nature though my Circumstances disingage me from the suspicion of being an Author Vale. A TABLE OF THE CASES Contained in the THIRD PART OF Modern Reports A. ALdridge versus Duke 110 Ashcomb versus Inhabitants Hundred de Eltham 287 Ayres versus Huntington 251 B. BAxter's Case 68 Baldwyn versus Flower 120 Ball versus Cock 140 Barker Mil ' versus Damer 336 Barnes versus Eggard 39 Beak versus Tyrrwhite 194 Banson versus Offley 121 Bishops their Case 212 Bisse versus Harcoutt 281 Blaxton versus Stone 123 Boyle versus Boyle 164 Boson versus Sandford 321 Bowyer versus Lenthal 190
Man from having any Office whatsoever who shall affirm the King to be a Papist 13 Car. 2. cap. 1. that is a person who endeavours to introduce Popery 2. But if the word Papist is not actionable of it self yet as coupled with his Offices 't is otherwise and the Plaintiff may well maintain this Action And of that Opinion was all the Court So the Iudgment was affirmed Malloon versus Fitzgerald ERror of a Iudgment in Ireland Where an Estate Tail shall not be determined for want of notice of a Proviso to determine it for Lands in the County of Waterford the Case upon the special Verdict was this John Fitzgerald was seized in Fee of the Lands in question who had Issue Katherine his only Daughter He by Lease and Release made a Settlement of those Lands upon the Earl of Ossory and other Trustees therein named and their Heirs to the use of himself for Life and after his Decease to the use of his Daughter Katherine in Tail Provided that she Married with the consent of the said Earl and the Trustees or the major part of them or their Heirs some worthy person of the Family and Name of Fitzgerald or who should take upon him that Name immediately after the Marriage but if not then the said Earl should appoint and raise a Portion out of the said Lands for the Maintenance of the said Katherine with a Remainder to Laetitia in Tail John Fitzgerald died his Daughter being then but two years old She afterwards at the Age of fourteen had Notice of this Settlement but not by the Direction of the Trustees That on the 20th of March in the 16th year of her Age she Married with the Plaintiff Edward Villiers Esq without the consent of the Trustees or the major part of them and that her Husband Mr. Villiers did not take upon him the Name of Fitzgerald after the said Marriage That Laetitia the Aunt was married to Franklyn who likewise did not take upon him the Name of Fitzgerald 1. The Questions were Whether the Estate limited to Katherine be forfeited without Notice given to her of the Settlement by the Trustees themselves 2. Whether her Estate be not determined by her marrying Mr. Villiers without their consent And it was argued That the Estate Tail was determined And first as to the point of Notice 't is not necessary to be given to the Daughter because the Father had not made it in the Settlement He might dispose of his Estate at his pleasure and having made particular Limitations of it there is no room now for the Law to interpose to supply the defect of Notice in the Deed. And to this purpose the Mayor of London 's Case was cited which was That George Monox Devised certain Houses to his Executors in Trust and their Heirs Cro Car. 576. Idem Jones 452. upon condition to pay mony to several Charitable uses which if not performed then he devised them over to his Heir in Tail upon the same Conditions and if not performed by him then to the * The Devise to him was void because it was a possibility upon a possibility Mayor and Commonalty of London The Trusts were not performed by the first Devisees A Stranger entered and levied a Fine with Proclamations and five Years passed Then the Mayor of London brought his Action supposing he had a right of Entry for the non performance of the Trusts but was barred by the Fine although it was argued for him that he had not notice of the Devise or breach of the Trust till after the Fine levied which shews that Notice was not necessary for if it had been so when his Title accrewed he could not have been barred by the Fine As Katherine the Daughter takes notice what Estate she hath in the Land so as to pursue a proper Remedy to recover it so she ought to take notice of the Limitations in the Settlement and hath the same means to acquaint her self with the one as with the other and the same likewise as her Aunt had to know the Remainder Suppose a Promise is made to indempnifie another from all Bonds which he should enter into for a third person 2 Cro. 432. Hob. 51. Jones 207. Pop. 164. and then an Action is brought against him wherein the Plaintiff declared that he was bound accordingly and not saved harmless but doth not shew that he gave notice of his being bound yet the Plaintiff shall recover As to the Case of a Copyholder having three Sons who surrendred to the use of his Will 2 Cro. 56. and then devised to his middle Son in Fée upon condition to pay Legacies to his Sisters at full age which were not paid Now tho' it was adjudged that his Estate was not determined upon the non-performance of this Condition without an actual demand and denial and that he was not bound to take notice of the full age of his Sisters yet this is not an Authority which can any wise prevail in this Case because 't is a * If the Devise had been to the eldest Son then it had been a Limitation annexed to his Estate and not a Condition because if it had been a Condition it would have descended upon the Heir who could not be sued for the breach 1 Ventr 199. Rep. Canc. 140. Sid. Poph. 104. Condition to pay Legacies which is a thing in its nature not to be paid without a demand which implies notice In all Cases where Conditions are annexed to Estates to pay Mony there notice is necessary but where Estates are limited upon the performance of collateral acts 't is not necessary And this has been held the constant difference So is Fry and Porter 's Case which was this The Earl of Newport had two Daughters and he devised Newport House to the Daughter of his eldest Daughter in Tail which she had by the Earl of Banbury Provided and upon condition that she marry with the consent of her Mother and two other Trustees or the major part of them if not or if she should dye without Issue then he devised the said House to George Porter in Fee who was the Son of his youngest Daughter and who had married one Thomas Porter without her Fathers consent The Lady Ann Knowles the first Devisee married Fry without the consent of her Grandmother or Trustees and it was adjudg'd against her upon point of Notice that it was not necessary because her Grandfather had not appointed any person to give notice he might have imposed any Terms or Conditions upon his own Estate and all Parties concerned had the same means to inform themselves of such Conditions The third Resolution in Frances Case 8 Co. comes nearest to this now in question it was in Replevin the Defendant avowed the taking Damage Fesant The Plaintiff pleaded in Barr to the Avowry that R. Frances was seized in Fee of the place where c. and devised it to John who was his
of setting of so many Letters together but filling up the Blanks makes them of another nature Grants of things of less moment have been adjudged Monopolies 2 Rol. Abr. 215. pl. 5. as a Patent for the sole making of all Bills Pleas and Briefs in the Council of York for by the same reason a like Patent might be granted to make all Declarations in the Courts of Westminster Hall Curia The King hath a Prerogative to Grant the sole Printing to a particular person all the Cases cited for the Plaintiff do not reach the reason of this Case for there is a difference between things of a publick Vse and those which are publick in their Nature even Almanacks have been used to ill purposes as to foretel future Events yet they are of publick Vse to shew the Feasts and Fasts of the Church The Court enclined that the Patent was not good Jackson versus Warren A Motion was made in arrest of Iudgment Amendment for that the day when the Assises were to be held and the place where were left out of the Distringas and so a mis-tryal But the Court were of another Opinion 1 Roll. Abr. 201. for if there had been no Distringas the Tryal had been good because they Jurata is the Warrant to try the Cause which was right and therefore the Distringas was ordered to be amended by the Roll. Dominus Rex versus Sparks 'T IS Enacted by the Statute of 1 Eliz. Where a Punishment is directed by a Statute the Judgment must be pursuant 1 Eliz. cap. 2.13 14 Car. 2. cap. 4. That every Minister shall use the Church-Service in such Form as is mentioned in the Book of Common-Prayer and if he shall be convicted to use any other Form he shall forfeit one whole Years profit of all his Spiritual Promotions and suffer six Months Imprisonment And by the Statute of King Charles the II. All Ministers are to use the publick Prayers in such Order and Form as is mentioned in the Common-Prayer-Book with such Alterations as have been made therein by the Convocation then sitting The Defendant was indicted at the Quarter-Sessions in Devonshire for using alias Preces in the Church alio modo than mentioned in the said Book and concludes contra formam Statuti He was found Guilty and fined 100 Marks and upon a Writ of Error brought Mr. Polexfen and Mr. Shower argued for the Plaintiff in Error that this Indictment was not warranted by any Law and the Verdict shall not help in the case of an Indictment for all the Statutes of Jeofails have left them as they were before Now the Fact as 't is said in this Indictment may be no offence because to use Prayers alio modo than enjoyn'd by the Book of Common-Prayer may be upon an extraordinary occasion and so no Crime But if this should not be allowed the Iustices of Peace have not power in their Sessions to enquire into this matter or if they had power they could not give such a Iudgment because the punishment is directed by the Statute and of this Opinion was the whole Court The Chief Iustice said that the Statute of the 23 Eliz. 23 Eliz. cap. 1. could have no influence upon this Case because another Form is now enjoyned by later Statutes but admitted that Offences against that Statute were enquitable by the Iustices The Indictment ought to have alledged that the Defendant used other Forms and Prayers instead of those enjoyned which were neglected by him for otherwise every Parson may be indicted that useth prayers before his Sermon other than such which are required by the Book of Common-Prayer Clerk versus Hoskins DEbt upon a Bond for the performance of Covenants in certain Articles of Agreement in which it was recited That whereas the now Defendant had found out a Mystery in colouring Stuffs and had entred into a Partnership with the Plaintiff for the term of seven Years he did thereupon Covenant with him that he would not procure any person to obtain Letters Patents within that Term to exercise that Mystery alone The Defendant pleaded that he did not procure any person to obtain Letters Patents c. The Plaintiff replied and assigned for breach that the Defendant did within that term procure Letters Patents for another person to use this Mystery alone for a certain time Et hoc petit quod inquiratur per patriam And upon a Demurrer to the Replication these Exceptions were taken 1. That the Plaintiff hath not set forth what Term is contained in the Letters Patents 2. That he had pleaded both Record and Fact together for the procuring is the Fact and the Letters Patents are the Record and then he ought not to have concluded to the Country Prout patet per Recordum To which it was answered That the Plaintiff was a Stranger to the Term contained in the Letters Patents and therefore could not possibly shew it but if he hath assigned a full breach 't is well enough Then as to the other Exception viz. the pleading of the Letters Patents here is not matter of Record here is a plain negative and affirmative upon which the Issue is joyned and therefore ought to conclude hoc petit c. Curia There is a Covenant that the Defendant shall not procure Letters Patents to hinder the Plaintiff within the seven Years of the Partnership Now this must be the matter upon which the breach ariseth and not the Letters Patents so that it had been very improper to conclude prout patet per Recordum Iudgment for the Plaintiff Rex versus Hethersal THE Defendant was Felo de se Melius inquireddum not granted but for misdemeanor of the Jury and the Coroners Inquest found him a Lunatick and now Mr. Jones moved for a Melius inquirendum but it was denied because there was no defect in the Inquisition but the Court told him that if he could produce an Affidavit that the Iury did not go according to their Evidence or of any indirect Proceedings of the Coroner then they would grant it But it was afterwards quashed because they had omitted the year of the King Friend versus Bouchier Trin. 34 Car. 2. Rot. 920. EJectment upon the Demise of Henry Jones What words in a Will make a general Tail of certain Lands in Hampshire The Iury found this Special Verdict following Viz. That William Holms was seised in Fee of the Lands in question who by his last Will dated in the year 1633. devised it to Dorothy Hopkins for Life Remainder to her first Son and to the Heirs of the Body of such first Son c. and for default of such Issue to his Cousin W. with several Remainders over And in default of such Issue to Anne Jones and to her Heirs who was the Lessor of the Plaintiff That before the sealing and publishing of this Will he made this Memorandum Viz. Memorandum that my Will and Meaning is That Dorothy Hopkins
shall not alien or sell the Lands given to her from the Heirs Male of her Body lawfully to be begotten but to remain upon default of such Issue to W. and the Heirs Males of his Body to be begotten according to the true intent and meaning of this my Will Dorothy Hopkins had Issue Richard who had Issue Henry who had Issue a Daughter now the Defendant The Question was Whether the Son of Dorothy did take an Estate Tail by this Will to him and to the Heirs of his Body in general or an Estate in Tail Male This Case was argued in Michaelmas Term 36 Car. II. And in the same Term a year afterwards by Council on both sides Those who argued for the Plaintiff held that the Son had an Estate in Tail Male and this seems plain by the intention of the Testator that if Dorothy had Issue Daughters they should have no benefit for no provision is made for any such by the Will and therefore the Daughter of her Son can have no Estate who is more remote to the Testator This is like the Case of Conveyances Turnam vers Cooper 2 Cro. 476. Poph. 138. id 25 Ass pl. 14. wherein the Habendum explains the generality of the precedent words as if Lands be given to Husband and Wife and to their Heirs habendum to them and the Heirs of their Bodies Remainder to them and the Survivor to hold of the chief Lord with Waranty to them and their Heirs this is an Estate Tail with a Feé expectant So it is here tho' the first words in the Will extend to Heirs which is general yet in the Memorandum 't is particular to Heirs Males and the words Heirs and Issues are of the same signification in a Will The Memorandum is a confirmation of the Will Ex parte Def. and the construction which hath been made of it is not only inconsistent with the Rules of Law but contrary to the intent of the Testator and against the express words of his Will Cases upon Wills are different from those which arise upon Deeds because in Conveyances subsequent words may be explanatory of the former but in Wills the first words of the Testator do usually guide those which follow As if Land be devised for Life Dyer 171 a. 1 And. 8. id Golds 16. Moor 593. Remainder to F. and the Heirs Males of his Body and if it happen that he dye without Heirs not saying Males the Remainder over in Tail this was held not to be a general Tail but an Estate in Tail Male therefore the Daughter of F. could not inherit Now to construe this to be an Estate Tail Male doth not only alter the Estate of the Sons of Dorothy but of the Issue of W. and nothing is mentioned in this Memorandum of the Limitation over to Jones so that the whole Will is altered by it But this Memorandum cannot enlarge the Estate of Dorothy because 't is inconsistent with the intention of the Testator who gave her only an Estate for Life by the Will but if she should have an Estate Tail she might by Fine and Recovery bar it and so alien it contrary to his express words Besides there is no Estate limited to Dorothy by this Memorandum and she having an express Estate for Life devised to her by the Will it shall never be enlarged by such doubtful words which follow As where a Man had 100 Acres of Land 2 Leon. 226. Moor 593. called by a particular Name and usually occupied with a House which House he lett to S. with 40 Acres parcel of that Land and then devised the House and all the Lands called by that particular Name c. to his Wife Adjudged she should only have the House and the 40 Acres and that the Devise shall not be extended by implication to the other sixty Acres So that to make the design of this Will and Memorandum to be consistent the latter words must be construed only to illustrate the meaning of the Testator in the former Paragraph of the Will and must be taken as a farther declaration of his intention Viz. that the Heirs Males mentioned in the Memorandum is only a description of the Persons named in the Will The Law doth usually regard the intention of the Testator and will not imply any contradictions in his Bequests The Court was of Opinion that it was a plain Case Judicium for in the Limitation 't is clear that 't is a general Tail and it doth not follow that the Testator did not design any thing for his Grandaughters because no provision was made for Daughters For where an Estate is entailed upon the Heirs of a Man's Body if he hath a Son and a Daughter and the Son hath Issue a Daughter the Estate will go to her and not to the Aunt Now this Memorandum doth not come to make any alteration in the Limitation because it directs that the Estate shall go according to the true intent and meaning of the Will and is rather like a Proviso than an Habendum in a Deed. And therefore Iudgment was given accordingly for the Defendant DE Term. Sancti Mich. Anno 1 Jac. II. in Banco Regis 1685. Hicks versus Gore ON Tuesday the 17th day of November there was a Trial at the Barr by a Somerset-Shire Iury in Ejectment The Case was thus The Plaintiff claimed the Lands by virtue of the Statute of 4 5 Ph. Mar. cap. 8. by which 't is enacted That it shall not be lawful for any person to take away any Maid or Woman Child unmarried and within the Age of sixteen years from the Parents or Guardian in Soccage and that if any Woman Child or Maiden being above the Age of twelve years and under the Age of sixteen do at any time assent or agree to such person that shall make any Contract of Matrimony contrary to the Form of the Act that then the next of Kin of such Woman Child or Maid to whom the Inheritance should descend return or come after the decease of the same Woman Child or Maid shall from the time of such Assent and Agreement have hold and enjoy all such Lands Tenements and Hereditaments as the said Woman Child or Maid had in Possession Reversion or Remainder at the time of such Assent and Agreement during the Life of such person that shall so contract Matrimony and after the decease of such person so contracting Matrimony that then the said Land c. shall descend revert remain and come to such person or persons as they should have done in case this Act had never been made other than him only that so shall contract Matrimony Benjamin Tibboth being seised in Fee of the Lands in question to the value of 700 l. per annum had Issue a Son and four Daughters the Son had Issue Ruth his only Daughter who was married to the Defendant Gore her Father died in the time of her Grandfather and her Mother
day afterwards viz. the 10th day of August a Trust of the said Office was declared by another Deed viz. to himself for Life with Remainders over and that by virtue thereof and the consent of the Trustees he took upon him the execution of the said Office and was thereof possessed either by himself or his Deputy until the time of the Inquisition taken then he traversed that the Escapes were voluntary but did not answer the concealing of the Grant and concludes viz. per quod petit that the King Hands may be amoved c. The Attorny General demurred to the Plea of the Trustees he likewise demurred to the Plea of Mr. Lenthal and took issue that the Escapes were voluntary It was argued this Term and Trinity following by Council on both sides and as to the matter of Law they made these Points 1. That this Office cannot be granted in Trust 2. The Escapes found in the Inquisition and not answered by the Trustees are sufficient causes of Forfeiture of this Offce 3. Another Point was raised whether the assignment of this Office to Trustees admitting it could be so granted and their declaration of the Trust did create an Estate at will in Mr. Lenthal If it was a Tenancy at will 1. Then whether Mr. Lenthal had done any thing to determine his will 2. Whether he can by Law make a Deputy 3. Whether the assigning of this Trust without giving notice thereof to this Court be a Forfeiture 1. This Office cannot be granted in Trust Jones 128. because 't is a personal Inheritance and will not pass by such Conveyances as are used to convey Lands so is my Lord of Oxford 's Case in which it was held that a Covenant to stand seised of an Office is void neither can Mr. Lenthal take upon him the execution of this Office by the consent of the Trustees for that cannot be without Deed. If the Law should be otherwise this inconvenience would follow viz. Mr. Lenthal might grant the Office to another without leave of the Court and the Grantee might suffer voluntary Escapes having no valuable Interest to answer the parties injured who must then sue Mr. Lenthal and he hath no Estate in him for he hath conveyed the Inheritance to the Trustees and if they should be likewise sued no recovery could be against them because they are only nominal 'T is almost like the Grant of an Office of chief Prothonotary of the Court of Common-Pleas to two persons for Life 18 Ed. 4. f. 7. which cannot be good because the Rolls of the Court cannot be in the keeping of two persons at one time It hath been adjudged that this very Office cannot be granted for years Cro. Car. 587. Jones 437. because 't is an Office of Trust and daily Attendance and such a termor for years may dye intestate and then it would be in suspence 'till Administration is committed which is the act of another Court 2. Point That the Escapes found in the Inquisition and the non-attendance of the Trustees are sufficient cause of Forfeiture 'T is true at the Common-Law Debt upon an Escape will not lie against the Goaler that Action was afterwards given by the Statute of W. 2. For before that Act the only remedy against the Goaler was to bring an Action on the Case against him founded upon a wrong done Dyer 273. But now Debt will lie and if the party is not sufficient at the time of the Escape 2 Inst 382. respondeat superior The Marshal who executes this Office be it by right or wrong is answerable to the King and his People for Escapes If they are voluntary 't is a Forfeiture of his Office nay if a Deputy suffer such Escapes 't is a Forfeiture by the Principal unless such Deputation be made for Life and then the Grantee for Life only forfeits the Office As to the non-attendance of the Trustees if Mr. 39 H. 6.32 Lenthal be Tenant at will and hath granted this Office to another for Life this is a determination of the Tenancy at will and a Forfeiture as to him Now this Grantee for Life cannot be said to be a Deputy for such a Grantee himself cannot make a Deputy and therefore a fortiori a Tenant at will cannot do it But admitting he should be Deputy yet a Forfeiture by him is a Forfeiture by his Superior and therefore Mr. Lenthal 's tenancy at will being gone the Trustees ought to attend and their non-attendance ought to be a Forfeiture The non-attendance of an Officer Cro. Car. 491. who was only a Searcher in a Port Town was adjudged a Forfeiture much greater is the Fault of that Officer who hath the administration of Iustice if he do not give his attendance Besides 39 H. 6.34 a. 9 Co. 46. Dyer 198. Sid. 81. Dyer 150 151. if they do not attend by consequence they cannot act in the Office and non-feazance is as sufficient a cause of Forfeiture as any other mis-behaviour whatsoever But if the Trustees had given attendance they are persons inexperient and therefore incapable to execute this Office for which they may be lawfully refused by this Court Mr. Pollexfen chiefly insisted upon the point of Pleading that the matter found by the Inquisition was not answered by the Plea First he excepted that the Defendant had not by his Plea entituled himself to any Estate in this Office 1 Leon. 202. 2 Inst 695. Stamf. 62 64. 2 Leon. 123. and therefore he could not traverse the Title of the King without making a Title to himself for why should he desire that the Kings Hands may be amoved and he restored to his Office if he hath not shewen a Title to it His pleading of this Deed of Trust by which he is permitted to receive the Profits c. during Life cannot create such an Estate in him as will be executed by the Statute of Vses therefore he can have no Estate for Life for if a Man is seised in Fee of an Estate and makes a Declaration thereof in Trust for J. S. this is no colour to make an Estate for Life in J. S. The Defendant hath therefore no more than a Trust in this Office which is nothing in the Eye of the Law and for which there is no remedy but by Subpoena in Chancery so that being only a Cestui que trust he hath neither jus in re nor ad rem He cannot be Tenant at will for he is not made so by the Deed of Trust There is a great deal of difference between Evidence and Pleading for this very Deed may be an Evidence of an Estate at will but 't is not so in pleading therefore he ought to have pleaded that coram praetextu he was possessed of the Office and took the Profits c. but he having otherwise pleaded and not entituled himself to any Estate therein he ought to be laid aside as an incompetent person The Plea of Sir Edward Norris
the King may be seized in Fee of an Hundred and that he may grant Retorna Brevium the Statutes are plain in it 14 E. 3. c. 9. for otherwise how came any Lords to have Hundreds in Fee but by the Kings Grants And 't is as plain that Hundreds may be divided from the County 2 E. 3. c. 12. for else to what purpose was the Statute of Lincoln made which adjoins Hundreds and Wapentakes to the Counties and provides that they shall never be separated again this shews that they were divided at that time The Objections which have been made are viz. That the Defendant cannot have a Title to this Office by Grant and he hath not made any Prescription to it The Reasons given why he could not have it by Grant were because ancient Hundreds which were united to the Counties by the Statute of Ed. 3. could never afterwards be divided from them by any Grant of the King and those which were excepted in that Statute as being granted in Fee by the King or his Ancestors when they come again to the Crown cannot be regranted because they are merged in it In answer to which it was said that such ancient Liberties which were created by the Crown and did subsist by the King 's Grant before the Statute of Ed. 3. when afterwards they came to the King were not merged but remained a distinct Interest in him The Hundred of Gartree in the County of Leicester was such a Liberty it was an ancient Hundred and granted by Ed. 2. Cole versus Ireland Raym. 360. to John Sedington not in Fee but durante bene placito Regis this Grant was long before the making of the Statute of Ed. 3. and yet afterwards this very Hundred was granted to several other persons by the suceeding Kings of England which shews it was merged in the Crown when it came to the King The other Objection was that Retorna Brevium doth not lie in Prescription Now as to that though it be true that no Title by Prescription can be made to such Franchises and Liberties which cannot be seized as forfeited before the cause of Forfeiture appears on Record because Prescription being an Vsage in pais doth not extend to such things which cannot be had without matter of Record 1 Inst 114. b. Yet my Lord Coke is clear that a good Title may be made to hold Pleas Leets Hundreds c. by Prescripteon only without Matter of Record But notwithstanding what was said to maintain this Plea Iudgment was given against the Defendant Rex versus Griffith THE Defendant was convicted of Manslaughter at the Old-Bayly Indictment for Murder the Party was found guilty of Manslaughter and pleaded his Pardon and afterwards the Indictment was quashed to save the Forfeiture of his Goods and the Record being removed into this Court by Certiorari he pleaded his Pardon and had Iudgment Quod eat inde sine die But being once convicted the Dean and Chapter of Westminster did seize his Goods as forfeited by that Conviction who thereupon although he was out of the Court by that Iudgment yet he moved by his Council to quash the Indictment The Exceptions taken were viz. That the Indictment was Per Sacramentum duodecim proborum legalium hominum jurat ' onerat ' praesentat ' existit modo forma sequen ' Midd. ss Juratores pro Domino Rege praesentant c. That there was no President to warrant such an Indictment for this may be the Presentment of another Iury it being very incoherent to say that it was presented by the Oaths of twelve Men that the Iury do present It ought to be praesentat ' existit quod c. and so is the form of this Court as the Clerk of the Crown inform'd them 2. They present that Griffith and two others did make an Assault on the Body of the deceased and that quidam Johannes in nubibus did wound him with a Gun so that 't is uncertain who did shoot and what Gun was discharged which ought to be certainly laid in the Indictment Vaux 's Indictment for Poisoning Ridley was 4 Co. 44. b. that the said Ridley not knowing the Beer to be poyson'd but being perswaded by Vaux recepit bibit but did not say venenum praedictum and so it not appearing what thing he did drink which ought to have been expresly alledged the Indictment was held insufficient And the reason is plain for an Indictment for Felony being a Declaration for the King against the Life of a Subject ought to set forth a sufficient certainty of the Fact which shall not be supplied either by Argument or any intendment whatsoever And therefore in Long 's Case the Defendant was indicted for discharging a Gun upon Long 5 Co. 122. b. Dans eidem Henrico Long mortale vulnus and doth not say percufsit for which reason that Indictment was also held insufficient because in all Indictments for Murder they ought expresly to alledge a stroke given For these Reasons the Indictment was quashed and a new Roll was made on which this Indictment and Certiorari were both entred and Iudgment quod exoneretur and this was done to avoid the seizure And afterwards in Michaelmas Term primo Will. Mar. it was said by the Chief Iustice that it must be intended these were two persons for no Court would justifie such a Iudgment Anonymus IN Assault and Battery After a Traverse you must not conclude to the Country the Defendant pleaded a Release of all Actions c. The Plaintiff replied that the Release was gotten by duress c. The Defendant rejoyned and shewed cause why it was not gotten by duress but that he sued forth a Capias and did Arrest him c. and that the Release was voluntary c. The Plaintiff surrejoyns and saith that it was gotten by duress absque hoc that it was voluntary Et hoc petit quod inquiratur per patriam Vpon this Issue the Cause was tryed Dyer 353. a. 1 Inst 126. a. Cro. Car. 316. Sid. 341. 2 Cro. 588. 2 Rol. Rep. 186. and the Plaintiff had a Verdict and now it was moved in Arrest of Iudgment that he ought not to conclude to the Country after a Traverse because a Traverse it self is Negative and therefore the Defendant ought to have joyned issue in the Affirmative 't is true if issue had been joyned before the Traverse it might have been helped by the Statute of Ieofails but it was not so in this Case and therefore the Iudgment was Arrested Hitchins versus Basset Mil ' IN Ejectment upon the Demise of Mr. Nosworthy The Iury found a special Verdict A subsequent Will which doth not appear shall not be a Revocation of the former the substance of which was Viz. That Sir Henry Killigrew was seised in Fee of the Lands in question in the County of Cornwal and being so seised did in the year 1644. devise the
which he claims he ought to shew the other Will by which it must appear that nothing is contradictory to it or that it doth confirm the first but if Presumptions shall be admitted it must be in favour of the Heir for nothing shall be presumed to disinherit him Afterwards in Trinity-Term 5 Willielmi Iudgment was given for the Plaintiff and a Writ of Error was brought in the House of Peers to reverse that Iudgment but it was affirmed Anonymus A Writ of Error was brought to reverse a Iudgment in the Common Pleas in an Ejectment for Lands in the County of Essex in which a Special Verdict was found viz. That R. F. What Words in a Will make Tenants in Common was seized in Fee of the Lands in question who had Issue two Daughters Frances Jane Frances had Issue Philp Frances Anne R. F. the Father devised unto Philip Frances and Anne the Children of his Daughter Frances and to Jane his other Daughter the Rents and Profits of his Mannor of Spain for thirty years to hold by equal parts viz. the three Grandchildren to have one Moiety and his Daughter Jane the other Moiety And if it happen that either of them should die before the thirty years expired then the said Term should be for the benefit of the Survivor and if they all die then the same was devised over to other Relations Afterwards he made a Codicil in these words viz. I give Power and Authority to my Executors to let my whole Lands for the Term of thirty years for the benefit and behalf of my Children Anne one of the Granchildren died without Issue Frances another of the Grandchildren died but left Issue The first Question was whether the Power given to the Executors by the Codicil will take away that Interest which was vested in the Grandchildren by the Will Mr. Appleton argued that it would not because the Executors had only a bare Authority to let it or improve it for the benefit of the Children there was no Devise of the Land to them If Power be given to Executors to sell Lands 't is only an Authority and not an Interest in them but a bare Authority only to let is of much less importance 2. After the Testator had devised the Profits of these Lands to his Grandchildren and Daughter equally to be divided during the term and had provided that if any dye without Issue that then it should survive and if all dye then to remain over to collateral Relations c. Whether Frances being dead but leaving Issue her Interest shall survive to Philip or go to such her Issue As to that he held that the Testator made them Tenants in Common by equal parts and therefore he devised it by Moieties in which there can be no Survivorship 'T is like a Devise to the Wife for life 2 Cro. 448. 1 Roll. Abr. 833. King versus Rumbal Cro. Car. 185. and after her decease to his three Daughters equally to be divided and if any of them die before the other then the Survivors to be her Heirs equally to be divided and if they all die without Issue then to others c. the Daughters had an Estate Tail and there was no Survivorship So in this Case it shall never go to the third Grandchild as long as any Issue of the second are living On the other side it was argued that they are Ioyntenants and not Tenants in Common E contra for the Testator having devised one Moiety to his three Grandchildren joyntly by equal parts that will make them Ioyntenants But the Court were all of Opinion that the words in the Will shew them to be Tenants in Common for equally to be divided runs to the Moieties So the Iudgment was affirmed Woodward 's Case THE Statute of 23 H. 8. c. 9. Church Ornaments are a personal Charge upon the Inhabitants and not upon those who live else where though they occupy Lands in that Parish Godb. 134. pl. 4. 152. pl. 29. 154. pl. prohibites a Citation out of the Diocess wherein the Party dwelleth except in certain Cases therein mentioned one whereof is viz. Except for any Spiritual Cause neglected to be done within the Diocess whereunto the Party shall be lawfully cited One Woodward and others who lived in the Diocess of Litchfield and Coventry but occupied Lands in the Diocess of Peterborough were taxed by the Parishioners where they used those Lands for the Bells of the Church and they refusing to pay this Tax a Suit was commenced against them in the Bishop of Peterborough's Court who thereupon suggested this Matter and prayed a Prohibition because they were not to be charged with this Tax it being only for Church Ornaments And a Prohibition was granted the reason given was because 't is a personal charge to which the Inhabitants only are liable and not those who only occupy in that Parish and live in another but the repairing of the Church is a real Charge upon the Land let the Owner live where he will DE Term. Sanct. Trin. Anno 4 Jac. II. in Banco Regis 1688. Wright Chief Justice Holloway Justices Powel Justices Allibon Justices The Bishop 's Case Friday June 15th THE King having set forth a Declaration for Liberty of Conscience did on the 4th day of May last by Order of Council enjoyn that the same should be read twice in all Churches c. and that the Bishops should distribute it through their respective Diocesses that it might be read accordingly The Archbishop of Canterbury who then was together with six other Bishops petitioned the King setting forth that this Declaration was founded upon a dispensing Power which had been declared illegal in Parliament and therefore they could not in Honour or Conscience make themselves Parties to the Distribution and Publication of this Declaration who thereupon were summoned before the King in Council and refusing there to give Recognizance to appear before the Court of Kings Bench they were committed to the Tower by Warrant of the Council-Board The Attorney General moved for a Habeas Corpus retornable immediate and the same Morning in which that Motion was made Sir Edward Hales Lieutenant of the Tower returned the same and they were all brought into the Court. The Substance of the Return was viz. That they were committed to his Custody by Warrant under the Hands and Seals of the Lord Chanchellor Jefferies and also naming more of the Lords of the Privy-Council Dominos Concilij for contriving making and publishing a Seditious Libel against the King c. Then it was prayed that the Return might be filed and that the Information which was then exhibited against them for this Crime might be read and that they might all plead instanter Serjeant Pemberton Mr. Finch and Mr. Pollexfen oppsed the reading of it and moved that the Bishops might be discharged because they were not legally before the Court for it appears upon the Return that there is no lawful cause of
Where an Averment may be made of another person so as it consists with the Condition of a Bond. in which Bond the said A. B. the elder and A. B. the younger were joyntly and severally bound in the penal Sum of 1000 l. conditioned that if the above bounden A. B. omitting the word younger do and shall forbear knowingly and wittingly to come to or write Letters unto C. the Wife of D. that then the Obligation to be void The Defendant pleaded that he did not come to or write Letters to the said C. knowingly c. The Plaintiff replied that he exhibited an Information against A. B. the younger shewing in what Term and that it was agreed between them that in consideration that he would forbear to prosecute the same the said A. B. the elder together with A. B. the younger should become bound to the Plaintiff in 1000 l. that the said A. B. the younger should not knowingly or wittingly come into the Company c. then sets forth the Bond and the Condition thereof at large and avers that A. B. in the Condition mentioned is A. B. the younger and farther that the said A. B. the younger did afterwards knowingly come into the Company c. The Defendant re-joyned and said that the Plaintiff ought not to averr that the aforesaid A. B. the younger is the person in the Condition of the said Bond c. And upon a Demurrer the Question was whether the Plaintiff was estopped by the words in the Condition to make such an Averment It was argued for the Plaintiff that he might make such an Averment which is to reduce a thing to a certainty which was very incertain before if it be not repugnant in it self nay sometimes an Averment doth reduce contradictory things to a certainty 'T is plain that A. B. the younger is bound in this Bond the Objection is that A. B. the elder being of the Name and being likewise bound that the Condition might referr to either 'T is agreed there are many Cases where a Man shall be estopped to averr against a Record but this Averment is not contradictory to any thing in the Record for it appears by the Pleadings that the Information was prosecuted against A. B. the younger and therefore he must be intended to be bound not to come to the said C. knowingly c. If an Estate should be devised to A. and the Name of the Testator omitted in the Will 2 Leon. 35. yet the Devise is good by averring of the Name and by proof that it was his intention to give it him by his Will So if the Plaintiff should claim a Title under the Grant of such a person Knight and the Iury find he was an Esquire Lit. Rep. 181 223. but that the Knight and the Esquire are both the same person this is a good Declaration 'T is usual to make an Allegation even against the express words of a Condition to shew the truth of an Agreement Cro. Car. 501. as if Debt be brought upon a Bond of 100 l. conditioned to pay 50 l. within six Months the Defendant pleaded the Statute of Vsury the Plaintiff replied that he lent the Mony for a year and alledged that by the mistake of the Scrivener the Bond was made paiable in six Months The Defendant rejoyned that it was lent for six Months only And upon a Demurrer this was adjudged to be a good Allegation though it was against the very words of the Condition which is a stronger Case than this at the Barr because the Averment consists with the Condition of the Bond. If a Man should levy a Fine and declare the Vses thereof to his Son William and he hath two Sons of that Name 4 Co. 71. 8 Co. 155. a. Dyer 146. then an Averment is made that he intended to declare the Vses to his youngest Son of that Name this Averment out of the Fine hath been adjudged good for the same reason given already which is because it standeth with the words thereof and 't is a good Issue to be tried It cannot be objected that the Bond is illegal being entred into for the not prosecuting of an Information because a Nolle prosequi was entred as to that Matter so 't is the Act of the Court. Lastly It was said that every Estoppel must be certain to every intent which cannot be in this Case for by the words of this Condition 't is incertain which of the Obligors shall be intended E contra It was argued that an Estoppel is as well intended by Law as expressed by Words that if an Averment can be taken yet this is not well because the Plaintiff hath absolutely averred that A. B. in the Condition is A. B. the younger he should have said that A. B. in the Condition is intended A. B. the younger which might have been traversed and Issue taken thereon No Iudgment was given for this Case was ended by Compromise Hoil versus Clerk In the Common-Pleas THIS was a special Verdict in Ejectment for Lands in Wetherfield A subsequent Will though not made pursuant to the Statute is a Revocation of a former in the County of Essex upon the demise of Abigail Pheasant The Iury find that one John Clark was seised in Fee of the Lands in question who by his last Will in writing bearing date the 14th day of September in the year 1666. devised the same to Benjamin Clark for Life so to his first and second Sons c. in Tayl Male and for default of such Issue then to his two Sisters for Life Remainder over c. This Will was attested by one Witness only They find that the said John Clark made another dated the sixth day of February 1672. which was 13 years after the making of his first Will and that by this last Will he revoked all former Wills and Testaments by him made They find an Endorsement on this Will written by the Testator himself in these words Viz. My Will and Testament dated the 6th of February 1679. and then published by me in the presence of three Witnesses They find that this last Will was so published and attested by three Witnesses in his presence but that it was not signed by the Testator in their presence They find that Benjamin Clark entred and devised the Lands to Mary Micklethwaite who made a Lease thereof to the Plaintiff for three years upon whom the Defendant entred This Case was argued at the Bar and in this Term at the Bench Seriatim The single Question was 29 Car. 2. cap. 3. whether this last Will not being duly executed according to the Statute is a Revocation of the first Will or not It was admitted by all that it was a good Will to pass the personal Estate but as to the point of Revocation the Court was divided Iustice Lutwitch argued that it was not a Revocation He agreed that if the last Will hath any respect to the first it must be as a
question as forfeited to the Lady who entred and made a Lease to the Plaintiff upon whom the Defendant re-entred The single Question upon this special Verdict was whether this was a Forfeiture and so a good seisure to bind the right of an Infant It was argued for the Plaintiff in the Action that it was a good Seisure and a Forfeiture till the Infant should come of Age for as a Copyhold is established by Custom so likewise 't is Custom which obligeth the Infant to the Conditions thereof and therefore where one under Age hath an Estate upon a Condition to be performed by him 8 Co. 44. b. Whittingham 's Case Latch 199. Jones 157. and that Condition is broken during his Minority the Estate is lost for ever In this Case the Custom obligeth the Heir to be admitted that the Lord may be entituled to a Fine which if he should lose because his Tenant is an Infant then that priviledge of Infancy works a wrong which the Law will not permit 'T is true an Infant shall not be prejudiced by the Laches of another but shall be answerable for himself and therefore if he is Tenant of Lands and the Rent should be unpaid for two years and no Distress can be found a Cessavit lies against him and the Lord shall recover the Land because of the Non-performance which arises by his own default So if one under Age be a Keeper of a Gaol and suffer a Prisoner to escape out of Execution 2 Inst 382. an Action of Debt will lie against him upon the Statute of W. 2. It was agreed that such a Custom and Non-claim will not foreclose an Heir 8 Co. 100. Sir Rich. Letchford 's Case who is an Infant and beyond Sea at the time of his Ancestors Death though he is bound by the Custom to claim it at the next Court but that if he will come over and tender himself though after a Seisure he shall be admitted and so shall the person in this Case if after his Minority he offer himself to be admitted But it cannot be denied 2 Cro. 226. but that the Lord may seize when the Heir is beyond Sea till he return and tender himself to be admitted and by the same reason he may also seize in this case during the Minority A Temporary Forfeiture is no new thing in the Law Cro. Car. 7. for if a Feme Covert be a Copyholder and marrieth and her Husband makes a Lease for years without License of the Lord 't is a Forfeiture and shall bind her during the Coverture So the Law is Cro. El. 351. that the Lord may seize the Land till a Fine is paid for 't is a reasonable Custom so to do It hath been a good Custom for the Lord to assign a person to take the Profits of a Copyhold Estate descended to the Infant during his Minority without rendring an Accompt when he came of Age. 1 Leon. 266. 2 Leon. 239. So that all taht is to be done in this Case is to enforce the Infant to be admitted that the Lord may be entituled to a Fine The Inheritance is not bound but the Land is only seized quousque E contra It was argued that here is a general Seizure E contra which cannot extend to an Infant for he is not bound in a Writ of Right much less in an inferior Court after three Proclamations but if this had been a Temporary Seisure the Iury ought to have found it so which is not done There are many Authorities in the Books which affirm that an Infant is not obliged to be admitted during his Non-age 1 Leon. 100. 3 Leon. 221. or to tender the Fine in order to an Admittance that the Law was settled in this Point and therefore without any further Argument he prayed Iudgment for the Defendant Afterwards in Hillary-Term 1 Willielmi Mariae this Case was argued seriatim at the Bench three Iudges being of a contrary Opinion to the Chief Iustice for the affirming of the Iudgment Iustice Eyre premised two things 1. That he could not intend but that this Verdict had found an absolute Forfeiture the Iury having no way qualified it as to a certain time and therefore he would give a Iudgment upon the whole Record 2. He agreed that a Feoffment of an Infant was no Forfeiture at the Common Law and that as a particular Custom may bind an Infant for a time so it may barr him for ever but whether this Custom as 't is found in general words shall bind an Infant after three Proclamations is now the Question he not coming then to be admitted And he held that it shall not and that for these reasons 1. The Right of Infants is much favoured in the Law and their Laches shall not be prejudicial to them as to Entry or Claim upon a Presumption that they understand not their Right 1 Inst 380. 2 Inst 401. and therefore in a Cessavit per biennium which is a remedy given by the Statute of W. 2. and which extends to Infants Westm 2. c. 31. who have not the Land by descent for if a Cesser be in that Case the Infant shall have his Age because the Law intends that he doth not know what Arrerages to tender 'T is admitted that if an Infant doth not present to a Church within six Months or doth not appear within a year that his Right is bound but this is because the Law is more tender of the Church and the life of a Man than of the Priviledges of Infancy So if an Office of Parkship be given or descends to an Infant if the Condition in Law annexed to such an Office which is skill be not observed the Office is forfeited But that a Proclamation in a base Court should bind an Infant when he is not within the reason of the Custom is not agreeable either to Law or Reason 2. Cro. Jac. 80. Cro. El. 879. Noy 42. 1 Rol. Abr. 568. All Customs are to be taken strictly when they go to the destruction of an Estate and therefore a Custom was that if a Copyholder in Fee surrender out of Court and the Surrendree doth not come in after three Proclamations the Lord shall seize it A Copyholder in Fee surrendred to another for Life the Remainder over in Fee if the Tenant for Life will not come in he in the Remainder shall not be barred for the Custom shall be intended to extend only to those in possession But the Infant in this Case is not within the Letter of the Custom for 't is found that the Surrender was made to one Freeman who died before the next Court-day and that John Freeman the Infant was his Son and Heir so they have found a Title in him for the word Heir is not here a word of Purchase but of Limitation 3. Jones 157. Noy 92. Infants are not bound by other Customs like this as a Custom that every Copyholder
an Inn-keeper or common Carrier 't is usual to declare secundum legem consuetudinem Angliae for 't is not a Custom confined to a particular place but 't is such which is extensive to all the King's People The word Consuetudo might have been added 1 Inst 182. but it imports no more than Lex for Custom it self is Law If the Custom of Merchants had been left out the Defendant had then pursued his Covenant for if a Man agrees to pay Mony to such a person or his Assigns and he appoints the payment to another a tender to that person is a good performance of the Covenant But the Court were of Opinion that this was not a good Plea Panton versus the Earl of Bath A Scire Facias to have Execution of a Iudgment obtained in the Court of Oliver late Protector of England and the Dominions and Territories thereunto belonging Where the Pleading is good in substance tho' there is a small variation it will not hurt and in reciting the Iudgment 't is said that it was obtained before Oliver Protector of England and the Dominions thereunto belonging leaving out the word Territories And upon a Demurrer Mr. Pollexfen held this to be a variance Yelv. 212. Orde versus Moreton and like the Case where a Writ of Error was brought to remove a Record in Ejectment directed to the Bishop of Durham setting forth that the Action was between such Parties and brought before the said Bishop and seven other persons naming them and the Record removed was an Ejectment before the Bishop and eight others so that it could not be the same Record which was intended to be removed by the Writ E contra E contra It was said suppose the word Scotland should be left out of the King's Title would that be a variance The Iudicature in this Case is still the same and the Pleading is good in Substance and of that Opinion was the whole Court Hyley versus Hyley HYley had Issue W. Where the Reversion in Fee shall pass in a Will by the words viz. Remaining part of my Estate his eldest Son who had Issue Peter Charles John He by Will devised 1000 l. to his eldest Son and several parcels of Land to other Legatees Then he gave to Peter Lands in Tail Male To John a Mansion House now in question in Tail Male He devised another House to his Grandson Charles in like manner And all the rest and remaining part of his Estate he devised to his three Grandsons equally to be divided amongst them that only excepted which he had given to Peter Charles and John and to the Heirs of their Bodies whom he made Executors Then by another Clause he devised viz. That if either of his Executors die without Issue then the part or parts of him so dying shall go to the Survivor or Survivors equally to be divided John the youngest Grandson dyed without Issue and the question was whether the Reversion of his House shall be divided between his surviving Brothers or descend to his Heir And it was adjudged that the Exception in the Will did comprehend the Reversion in Fee and that it did not pass but without such an Exception it had passed * Allen 28. as where a Man devised his Mannor to another for years and part of other Lands to B. and his Heirs and all the rest of his Lands to his Brother in Tail it was held that by these words the Reversion of the Mannor did pass Anonymus NOTA. An Infant having entred into a Statute brought an Audita Querela to avoid it he was brought into the Court and two Witnesses were sworn to prove his Age and then his Appearance and Inspection were recorded he was bound in this Case with two other persons for 1600 l. and had no more than 200 l. for his share Lydcott versus Willows IN Ejectment A special Verdict was found viz. Devise of an Hereditament carries the Reversion in Fee that the Testator being seized in Fee of certain Houses in Bedfor-Bury and in Parker's Lane did by Will devise his Houses in Parker's Lane to charitable Vses then he gave several specifick Legacies to several persons named in the said Will and then he devised his Houses in Bedford-Bury to Edward Harris and Mary his Wife for their Lives then follow these words viz. The better to enable my Wife to pay my Legacies I give and bequeath to her and her Heirs all my Mesuages Lands Tenements and Hereditaments in the Kingdom of England not before disposed of c. The Question was whether this Devise would carry the Reversion of the Houses in Bedford-Bury to his Wife Adjudged that it did not but that it ought to go to the Heir of the Testator who was Plaintiff in this Case It being found that Harris and his Wife were dead and that the Wife who was Executrix had sufficient Assets to pay the Legacies without the Reversion But Iustice Powel was of another Opinion for that the word Hereditament imports an Inheritance and if it had devised thus viz. the Inheritance not before disposed of the Reversion had passed Afterwards a Writ of Error was brought in the Exchequer-Chamber upon this Iudgment 2 Vent 285. and according to the Opinion of Iustice Powel the Iudgment was reversed Nota. A Rule of Court was made that no Certiorari should go to the Sessions of Ely without Motion in Court or signing of it by a Iudge in his Chamber But Mr. Pollexfen insisted that the Sessions there did not differ from other Courts and Franchises for the inferior Courts in London are of as large a Iurisdiction as any and yet a Certiorari goes to them and so it ought to go to Ely for 't is the Right of the Subject to remove his Cause hither Their course in the Royal Franchise of Ely is to hold the Sessions there twice a year viz. in March and September in which two Months the Iudges are seldom in Town and if this Court should deny a Certiorari the Court of Common Pleas would grant it Attorney General contra This Franchise of Ely is of greater Priviledge and Authority than any inferior Court for it hath many Regalia though 't is not a County Palatine A Certiorari will not lie to the Grand Sessions nor to a County Palatine to remove Civil Causes 't is true it lyeth to remove Indictments for Riots and this Franchise being truly called Royal hath equal priviledge with a County Palatine and therefore a Certiorari will not lie But no Rule was made Osborn versus Steward TRespass Distress for an Heriot where it may be taken The Case upon the Pleadings was this viz. A Lease was made of Land for 99 years if Margery and Dorothy Upton should so long live reserving a yearly Rent and an Heriot or 40 s. in lieu thereof after the death of either of them Provided that no Heriot shall be paid after the death of Margery living
on the 29th day of April seize the Goods of the said Toplady that after the seizure and before any Venditioni exponas viz. 4 Maij an Extent which is a Prerogative Writ issued out of the Exchequer against two persons who were indebted to the King and by inquisition this Toplady was found to be indebted to them whereupon parcel of the Goods in the Declaration was seized by the Sheriffs upon the said Extent and sold and the Mony paid to the Creditors but before the said Sale or any execution of the Exchequer Process a Commission of Bankrupcy was had against Toplady and that the Commissioners on the second of June assigned the Goods to the Plaintiff The Question was whether this Extent did not come too late And it was held it did or whether the Fi. Fa. was well executed so that the Assignees of the Bankrupts Estate could not have a Title to those Goods which were taken before in Execution and so in Custodia Legis And it was held that they had no Title Fitzgerald versus Villiers WRIE of Error upon a Iudgment in Dower Infant must appear by Guardian and the Error assigned was that the Tenant in Dower was an Infant and no Warrant was alledged of the admission of any Guardian 29 Assise pl. 67. Bridg. 74. Lib. Entr. 45. Hut 92. 4 Co. 53. Lit. 92. Hetl. 52. 3 Cro. 158. Moor 434. Hob. 5. that it might appear to be the act of the Court 't is true an Infant may sue by Prochein Amy but shall not appear by Attorny but by Guardian because 't is intended by Law that he hath not sufficient discretion to chuse an Attorny therefore 't is provided that he appear per Guardianum which is done by the Court who are always careful of Infancy and a special Entry is made upon the Roll. Viz. Per Guardianum ad hoc per Curiam admissum c. 2. The Appearance is by the Guardian in his own Name Viz. Et praedicta Katherina Fitzgerald per Richardum Power Guardianum suum venit dicit quod ipse c. it should have been in the name of the Party quod ipsa c. Adjurnatur Harrison versus Austin A Settlement was made as followeth Viz. What words amount to a Covenant to stand seised That if I have no Issue and in case I dye without Issue of my Body lawfully begotten then I give grant and confirm my Land c. to my Kinswoman Sarah Stokes to have and to hold the same to the use of my self for Life and after my decease to the use of the said Sarah and the Heirs of her Body to be begotten with Remainders over c. The Question was whether this did amount to a Covenant to stand seised so as to raise an use to Sarah without transmutation of the possession The Objection against it was Sid. 26. Moor 687. Dyer 96. 2 Roll. Abr. 786. Winch 59. Plowd 300. that Vses are created chiefly by the intention of the Parties and that by these words grant and confirm the Feoffor did intend the Land should pass at Common Law so it could not be a Covenant to stand seised 't is like the Case where a Letter of Attorny is in the Deed or a Covenant to make Livery there nothing shall pass by way of use but the possession according to the course of the Common Law and therefore there being neither Livery and Seisin or Attornment no use will pass to Sarah It cannot be a Bargain and Sale for that is only where a Recompence is on each side to make the Contract good besides 2 Inst 672. the Deed is not inrolled To this it was answered 1 Vent 137. that it shall be construed to be a Covenant to stand seised though the formal words are wanting to make it so and for that purpose it was compared to Fox 's Case 8 Co. 93. who being seised in Fee devised his Land to C. for Life remainder over for Life reserving a Rent and afterwards by Indenture in consideration of Mony did demise grant and set the same Lands to D. for 99 years reserving a Rent the Lessee for Life did not attorn in which Case there was not one word of any use or any attornment to make it pass by Grant and the Question was whether this Lease for years shall amount to a Bargain and Sale so that the Reversion together with the Rent shall pass to the Lessee without Attornment Hob. 277. and it was held that by construction of Law it did amount to a Bargain and Sale for the words import as much And in this Case it was adjudged that it was a Covenant to stand seised Hexham versus Coniers IN Ejectment the Plaintiff declared de uno Messuagio sive Tenemento An Ejectment will lye for a Tenement and had a Verdict but Iudgment was arrested because an Ejectment will not lye of a Tenement for 't is a word of an uncertain signification it may be an Advowson House or Land but it is good in Dower so is Messuagium sive Tenementum vocat ' the Black Swan for this addition makes it certain that the Tenement intended is a House Rex versus Bunny A Motion was made for a Melius inquirendum to be directed to a Coroner who had returned his Inquisition upon the death of Bunny that he was not compos mentis when in truth he was Felo de se But it was opposed by Serjeant Pemberton and Mr. Pollexfen who said that the Law gives great credit to the Inquest of a Coroner and that a Melius inquirendum is seldom or never granted tho' it appear to the Court upon Affidavits that the Party had his Senses Mod. Rep. 82. It hath been granted where any fault is in the Coroner or any incertainty in the Inquisition returned That there is such a Writ it cannot be denied Cro. Eliz. 371. but 't is generally granted upon Offices or Tenures and directed to the Sheriff 3 Keb. 800. but never to a Coroner in the case of a Felo de se who makes his Enquiry super visum Corporis DE Term. Sancti Mich. Anno 4 Jac. II. in Banco Regis 1688. In Trinity-Vacation last Mr. Justice Holloway and Mr. Justice Thomas Powell had their Quietus and Mr. Serjeant Baldock and Mr. Serjeant Stringer were made Justices of this Court And Mr. Justice Allibon who was a Roman Catholick died in the same Vacation and Sir John Powell one of the Barons of the Exchequer was made a Justice of this Court Sir Thomas Jennor another of the Barons of the Exchequer was made a Justice of the Common-Pleas and Mr. Serjeant Rotheram and Mr. Serjeant Ingoldby were made Barons of the Exchequer Wright Chief Justice Powel Justices Baldock Justices Stringer Justices Shuttleworth versus Garnet Intratur Trin. 1 Willielmi Mariae Rotulo 965. THE Defendant was Tenant of Customary Lands held of the Manor of A. of which Manor B. was Lord
so his Son is justly and rightly sued as Son and Heir In some Cases the persons are to be named not by way of a Title but as a Pedigree as if there be Tenant for Life the Reversion in Fee to an Ideot and an Vncle who is right Heir to the Ideot levied a Fine and died living the Ideot leaving Issue a Son named John who had Issue William who entred the Question was whether the Issue of the Vncle shall be barred by this Fine It was the Opinion of two Iudges that they were not barred because the Vncle died in the life-time of the Ideot and nothing attached in him March 94. Cro. Car. 524. and because the Issue claim in a collateral Line and do not name the Father by way of Title but by way of Pedigree But Iustice Jones who hath truly Reported the Case Jones 456. was of Opinion that the Issue of the Vncle were barred because the Son must make his Conveyance from the Father by way of Title The Iury have found that the Reversion did descend to the Defendant as Heir to the last John 't is true it descends as a Reversion but that shall not charge him as Heir to the Father Jenk's Case 1 Cro. for the other was seised of the Estate Tail which is now spent and the last who was seised of the Fee was the Father and so the Defendant must be charged as his Heir 'T is likewise true that where there is an actual Seisin you must charge all but in this Case there was nothing but a Reversion Tremaine Serjeant for the Defendant In this Case the Plaintiff should have made a special Declaration for the Estate-Tail and the Reversion in Fee are distinct and seperate Estates John the Nephew might have sold the Reversion and kept the Estate Tail if he had acknowledged a Statute or Iudgment it might have been extended and if so then he had such a Seisin that he ought to have been named A Man becomes bound in a Bond and died Debt is brought against the Heir it is not common to say that he had nothing by descent but only a Reversion expectant upon an Estate Tayl. In the Case of Chappel and Lee Covenant was brought in the Common-Pleas against Judith Daughter and Heir of Robert Rudge She pleaded Riens per descent Issue was joyned before Sir Francis North then Chief Iustice and it appearing upon Evidence that Robert had a Son named Robert who died without Issue a Case was made of it and Iudgment was given for the Defendant the Plaintiff took out a new Original and then the Land was sold so the Plaintiff lost his Debt Adjornatur Afterwards in Hillary Term a Gulielmi Mariae Iudgment was given for the Plaintiff by the Opinion of three Iustices against Iustice Eyre who argued that the Defendant cannot be charged as immediate Heir to his Father 't is true the Lands are Assets in his Hands and he may be charged by a special Declaration Dyer 368. pl. 460. In this Case the intermediate Heirs had a Reversion in Fee which they might have charged either by Statute Iudgment or Recognizance they were so seised that if a Writ of Right had been brought against them they might have joyned the Mise upon the Mere right which proves they had a Fee and though it was expectant on an Estate Tail 3 Co. 42. Ratcliff's Case yet the Defendant claiming the Reversion as Heir ought to make himself so to him who made the Gift The person who brings a Formeden in Descender must name every one to whom any Right did descend 8 Co. 88. F.N.B. 220. c. Rast Ent. 375. otherwise the Writ will abate A Man who is sued as Heir or who entitles himself as such must shew how Heir The Case of Duke and Spring is much stronger than this 2 Rol. Abr. 709. 2 Cro. 161. for there Debt was brought against the Daughter as Heir of B. She pleaded Riens per descent and the Iury found that B. died seised in Fee leaving Issue the Defendant and his Wife then with Child who was afterwards delivered of a Son who died within an hour and it was adjudged against the Plaintiff because he declared against the Defendant as Daughter and Heir of the Father when she was Sister and Heir of the Brother who was last seised But the other three Iudges were of a contrary Opinion The Question is not whether the Defendant is lyable to this Debt but whether he is properly charged as Heir to his Father or whether he should have been charged as Heir to his Nephew who was last seised It must be admitted that if the Lands had descended to the Brother and Nephew of the Defendant in Fee that then they ought to have been named but they had only a Reversion in Fee expectant upon an Estate Tail which was incertain and therefore of little value now though John the Father and Son had this Reversion in them yet the Estate Tail was known only to those who were Parties to the Settlement 'T is not the Reversion in Fee Bro. Fit Descent pl. 30.37 Ass pl. 4. but the Possession which makes the party inheritable and therefore if Lands are given to Husband and Wife in Tail the Remainder to the right Heirs of the Husband then they have a Son and the Wife dies and the Husband hath a Son by a second Venter and dies the eldest Son enters and dies without Issue and his Vncle claimed the Land against the second Son but was barred because he had not the Remainder in Fee in possession and yet he might have sold or forfeited it But here the Reversion in Fee is now come into possession and the Defendant hath the Land as Heir to his Father t is Assets only in him and was not so either in his Brother or Nephew who were neither of them chargeable because a Reversion expectant upon an Estate Tail is not Assets Iudgment was given for the Plaintiff DE Term. Sancti Mich. Anno 1 Gulielmi Mariae Regis Reginae in Banco Regis 1689. Young versus Inhabitants de Totnam AN Action was brought against the Hundred for a Robbery in which the Plaintiff declared that he was Robbed apud quendam locum prope Faire Mile Gate in such a Parish He had a Verdict And now Serjeant Tremaine moved in arrest of Iudgment and the Exceptions taken were these viz. 1. That it doth not appear that the Parish mentioned in the Declaration was in the Hundred 2. Neither doth it appear that the Robbery was committed in the High-way 3. The Plaintiff hath not alledged that it was done in the day time for if it was not the Hundred is not lyable by Law But these Exceptions were all disallowed because it being after a Verdict the Court will suppose that there was Evidence given of these Matters at the Trial so the Plaintiff had his Iudgment Eggleston al' versus Speke alias Petit.
Intratur Trin. 1 W. M. Rot. 249. THis was a Trial at the Bar A Will shall not be revoked by a subsequent Writing unless that be also a good Will by a Wiltshire Iury in an Ejectment brought by the Plaintiffs as Heirs at Law to Ann Speke who died seized in Fee of the Lands in Question Vpon not Guilty pleaded this Question did arise at the Trial Whether the Answer of a Guardian in Chancery shall be read as Evidence in this Court to conclude the Infant There being some Opinions that it ought to be read and the Defendants Council insisting on the contrary Mr Iustice Eyres being the Puisne Iustice was sent to the Court of Common-Pleas then sitting to know their Opinions who returning made this Report That the Judges of that Court were all of Opinion that such Answer ought not to be read as Evidence for it was only to bring the Infant into Court and to make him a Party Then the Plaintiffs proceeded to prove their Title as Heirs at Law viz. by several Inquisitions which were brought into Court and by the Heralds Office The Defendants Title likewise was thus proved viz. That the Lady Speke being seised in Fee c. did by Will dated in March 1682. devise the Lands to John Petit for Life Remainder to the Defendant and his Heirs for ever That the Lady Speke died so seised that John Speke the Tenant for Life and Father to the Defendant was also dead c. This Will was proved by several Witnesses one of which likewise deposed that my Lady Speke made two other Wills subsequent to this now produced and a Minister prov'd that she burnt a Will in the Month of December which was in the year 1685. Then the Plaintiffs produced another Will made by her at Christmas 1685. attested by three Witnesses but not in the presence of my Lady so that though it might not be a good Will to dispose the Estate yet the Council insisted that it was a good Revocation of the other for 't is a Writing sufficient for that purpose within the sixth Paragraph of the Statute of Frauds The Case of Sir George Sheers was now mentioned whose Will was carried out of the Chamber where he then was into a Lobby and signed there by the Witnesses but one of them swore that there was a Window out of that Room to his Chamber through which the Testator might see the Witnesses as he lay in his Bed Vpon which Evidence the Iury found this special Verdict viz. That Ann Speke being seised in Fee c. did on the 12th day of March 1682. make her Will and devised the Lands to John Pettit for Life and afterwards to George his Son and to his Heirs for ever upon condition that he take upon him the Name of Speke That the 25th of December 1685. she caused another Writing to be made purporting her Will which was signed sealed and published by her in the presence of three Witnesses in the Chamber where she then was and where she continued whilst the Witnesses subscribed their Names in the Hall but that she could not see them so subscribing They find that the Lessors of the Plaintiff are Heirs at Law and that they did enter c. This matter was argued in Easter Term following and the Question was whether this Writing purporting a Will was a Revocation of the former or not and that depended upon the Construction of the sixth Paragraph in the Act of Frauds viz. All Devises of Lands shall be in Writing and signed by the party or some other in his presence and by his express Directions and shall be attested by three or four Witnesses c. and that such devise shall not be revocable but by some other Will or Codicil in Writing or other Writing c. declaring the same Now the want of Witnesses doth not make the last Will void in it self but only quoad the Lands therein devised it hath its operation as to all other purposes It must therefore be a Revocation of the former and this is agreeable to the Resolution of the Iudges in former times for there being nothing in the Statute of Wills which directs what shall be a Revocation 32 H. 8. cap. 1. Dyer 143. the Iudges in Trevilian's Case did declare that it might be by word of mouth or by the very intention of the Testator to alter any thing in the Will for before the late Statute very few words did amount to a Revocation Moor 429. 1 Roll. Abr. 614 615 616. If Lands are devised and afterwards a feoffment is made of the same but for want of Livery and Seisin 't is defective yet this is a Revocation of the Will though the Feoffment is void The Council on the other side argued that this Will was not void by any Clause in the Statute of Frauds E contra for if this is a Revocation within that Statute then this second Writing purporting a Will must be a good Will for if 't is not a good Will then 't is not a good Revocation within that Law No Man will affirm that the latter Writing is a good Will therefore the first being a Devise of Land cannot be revoked but by a Will of Land which the second is not This Statute was intended to remedy the mischief of parol Revocations and therefore made such a solemnity requisite to a Revocation It cannot be denied but that this latter Writing was intended to be made a Will but it wanting that perfection which is required by Law it shall not now be intended a Writing distinct from a Will so as to make a Revocation within the meaning of that Act. If a Man hath a power of Revocation either by Will or Deed and he makes his Will in order to Revoke a former this is a Writing presently but 't is not a Revocation as long as the person is living Therefore a Revocation must not only be by a Writing but it must be such a Writing which declares the intention of a Man that it should be so which is not done by this Writing Vpon the first Argument Iudgment was given for the Defendant that the second Will must be a good Will in all Circumstances to Revoke a former Will Cross versus Garnet THE Plaintiff declared that on such a day and year there was a discourse between him and the Defendant concerning the Sale of two Oxen then in the possession of the Defendant and that they came to an agreement for the same that the Defendant did then sell the said Oxen to the Plaintiff and did falsly affirm them to be his own ubi revera they were the Oxen of another Man The Plaintiff had a Verdict Cro. Eliz. 44. 1 Rol. Rep. 275. 2 Cro. 474 1 Roll. Abr. 91. More 126. Yel 20. Sid. 146. and Serjeant Thompson moved in arrest of Iudgment that the Declaration was not good because the Plaintiff hath not alledged that the Defendant did affirm the
3 Willielmi Judicium Iudgment was given for the Defendant absente Dolbin Iustice who was also of the same Opinion It was held that the Custom was well alledged both as to the manner and matter 't is true all Customs must have reasonable beginnings but it would be very difficult to assign a lawful commencement for such a Custom as this is so it would be for the Custom of Gavelkind or Burrough English which are circumscribed to particular places and since 't is sufficient to alledge a Custom by reason of the place where t is used it may be as reasonable in this Case to say that there hath been an ancient Ferry-Boat kept in this place 't is but only an inducement to the Custom which did not consist so much in having a Right to the Passage as to be discharged of Toll This might have a lawful beginning either by a Grant of the Lord to the Ancestors of the Defendant or by the agreement of the Inhabitants A Custom alledged for all the Occupiers of a Close in such a Parish to have a Foot-way Cro. Car. 419. Co. Lit. 110. b. Cro. Eliz. 746. 1 Roll. Rep. 216. c. is not good the reason is because the Plaintiff ought to prescribe in him who hath the Inheritance but where a thing is of necessity and no manner of profit or charge in the Soil of another but only a thing in discharge or for a Way to a Market or to be quit of Toll in such cases not only a particular person but the Inhabitaints of a Vill may alledge a Prescription This may be as well alledged as a Custom to turn a Plow upon another mans Land or for a Fisherman to mend his Nets there 'T is good as to the matter for 't is only an easment 't is like a Custom alledged for a Gateway or Watercourse and for such things Inhabitants of a Vill Cro. Eliz. 441. or all the Parishioners of a Parish may alledge a Custom or Vsage in the place 2. Point But as to the Plea in Bar 't is not good because the execting of a Bridge is but laying out a Way t is a voluntary act and no man by reason of his own act can be discharged of what he is to do upon the interest he hath in the Ferry If the Defendant had petitioned the King to destroy the Ferry and got a Patent to erect a Bridge and had brought a Writ ad quod dampnum and it had been found by inquisition to be no damage to the People then he might safely have built this Bridge 3. But notwithstanding the Plea is not good yet the Plaintiff can have no advantage of it because he cannot have an Action on the Case for this matter for by his own shewing 't is a common Passage Cro. Car. 132 167. 1 Inst 56. a. Cro. Eliz. 664. 13 Co. 33. Davis 57. which is no more than a common High-way now for disturbing him in such a Passage no Action on the Case will lie unless he had alledged some particular damage done to himself for if he could maintain such an Action any other person is entituled to the like and this would be to multiply Suits which the Law will not allow but hath provided a more apt and convenient remedy which is by presentment in the Leet If Toll had been extorted from him F. N. B. 94. 22 H. 6.12 then an Action on the Case had been the proper remedy but no such thing appeared upon this Declaration Prince 's Case THE Suggestion in a Prohibition was that Prince was seized of the Rectory of Shrewsby ut de feodo jure and that he being so seised de jure ought to present a Vicar to the said place but that the Bishop of the Diocess had of his own accord appointed a person thereunto This Exception was taken to it viz. He doth not say that he was Impropriator but only that he was seised of the Rectory in Fee so it not appearing that he had it Impropriate he ought no to present the Vicar Iustice Dolben replied That in several places in Middlesex the Abbots of Westminster did send Monks to say Mass and so the Vicaridges were not endowed but he put in and displaced whom he pleased That he had heard my Lord Chief Iustice Hales often say that the Abbot had as much reason to displace such Men as he had his Butler or other Servant Curia Declare upon the Prohibition and try the Cause Harrison versus Hayward Pasch 2 Gulielmi Rot. 187. AN Agreement was made to assign a Stock upon Request When a thing is to be done upon request the performance must be when the person requires it and the Defendant cannot plead that he was ready to assign after the promise made and for non-performance an Action was now brought setting forth the Agreement and that the Plaintiff did request the Defendant at such a time c. The Defendant pleaded that he was ready to assign the Stock after the promise made c. and upon a Demurrer it was ruled if the thing was not to be done upon Request then the Defendant was bound to do it in a convenient time after the promise but it being to be done upon request the time when the Plaintiff will require the performance of the Agreement is the time when the Defendant must do it Iudgment pro Quer. Thompson versus Leach WRit of Error upon a Iudgment in Ejectment given in the Common-Pleas Surrender not good without acceptance of the Surrendree 2 Vent 198. the Case upon the special Verdict was thus Viz. Simon Leach was Tenant for Life of the Lands in question with Remainder in contingency to his first second and third Son in Tail Male Remainder to Sir Simon Leach in Tail c. This Settlement was made by the Will of Nicholas Leach who was seised in Fee The Tenant for Life two months before he had a Son born did in the absence of Sir Simon Leach the Remainder man in Tail seal and deliver a Writing by which he did Grant Surrender and Release the Lands which he had for Life to the use of Sir Simon Leach and his Heirs and continued in possession five years afterwards and then and not before Sir Simon Leach did accept and agree to this Surrender and entred upon the Premisses But that about four years before he thus agreed to it Simon Leach the Tenant for Life had a Son born named Charles Lessor of the Plaintiff to whom the Remainder in contingency was thus limited The Tenant for Life died then Sir Simon Leach suffered a Common Recovery in order to bar those Remainders 1. The Question was whether this was a legal and good Surrender of the Premisses to vest the Freehold immediately in Sir Simon Leach without his Assent before Charles Leach the Son of Simon Leach the Surrenderor was born so as to make him a good Tenant to the Precipe upon which the Recovery was
the six Months by this means the Conusee of the Statute is defeated for after the inrollment the Land passeth ab initio and the Bargainee in Iudgment of Law was seised thereof from the delivery of the Deed but not by way of Relation but by immediate Conveyance of the Estate by vertue of the Statute of Vses But the Law will not suffer contingent Remainders to waver about and to be so incertain that no Man knows where to find them which they must be if this Doctrine of Relation should prevail Now suppose the Surrendree had made a Grant of his Estate to another person before he had accepted of the Surrender and the Grantee had entred would this subsequent assent have divested this Estate and made the Grant of no effect if it would then here is a plain way found out for any Man to avoid his own acts and to defeat Purchasors Therefore 't is with great reason that the Law provides that no person shall take a Surrender but he who hath the immediate Reversion and that the Estate shall still remain in the Surrenderor until all acts are done which are to compleat the Conveyance Those who argued against the Iudgment E contra held that the Estate passed immediately without the assent of the Surrenderor and that even in Conveyances at the Common-Law 't is divested out of the person and put in him to whom such Conveyance is made without his actual assent 'T is true in Exchanges the Freehold doth not pass without Entry nor a Grant of a Reversion without an Attornment but that stands upon different Reasons from this Case at the Bar for in Exchanges the Law requires the mutual acts of the Parties exchanging and in the other there must be the consent of a third person But in Surrenders the assent of the Surrendree is not required for the Estate must be in him immediately upon the execution of the Deed if he doth not shew some dissent to it If a Man should plead a Release without saying ad quam quidem relaxationem the Defendant agreavit yet this Plea is good because the Estate passeth to him upon the execution of the Deed. It may be a Question whether the actual assent must be at the very time that the Surrender was made for if it should be afterwards t is well enough and the Estate remaineth in the Surrendree till dis-agreement Presumption stands on this side for it shall never be intended that he did not give his Assent but on the contrary because t is for his benefit not to refuse an Estate Therefore where a Feme Sole had a Lease and married Hob. 203. the Husband and Wife surrendred it to another in consideration of a new Lease to be granted to the Wife and her Sons c. this Estate vests immediately in her tho' a Feme Covert and that without the assent of her Husband for the Law intends it to be her Estate till he dissent 't is true in that Case his assent was held necessary because the first Lease could not be divested out of him without his own consent So a Feoffment to three 2 Leon. 224. and Livery made to one the Freehold is in all 'till disagreement So if a Bond be given to a Stranger for my use and I should die before I had agreed to it my Executors are entituled to an Action of Debt and will recover A Feme Covert and another were Ioint-tenants for Life 1 Rol. Rep. 401 441. she and her Husband made a Lease for years of her moiety reserving a Rent during her Life and the Life of her partner then the Wife died this was held to be a good Lease against the surviving Ioint-tenant till disagreement which shews that the agreement of the Parties is not so much requisite to perfect a Conveyance of this nature as a disagreement is to make it void And this may serve as an answer to the second point which was not much insisted on that Mens Titles would be incertain and precarious if after the assent of the Surrendree the Estate should pass by Relation at the very time that the Deed was executed and that it was not known where the Free-hold was in the mean time for if he had agreed to it immediately it had been altogether as private Then as to the Pleadings 't is true that generally when a Surrender is pleaded 't is said ad quam quidem sursum redditionem the Party adtunc ibidem agreavit which implies that the Surrendree was then present and in such Case he ought to agree or refuse Besides those Actions to which an Agreement is thus pleaded were generally brought in disaffirmance of Surrenders and to support the Leases upon which the Plaintiffs declared and then the proper and most effectual Bar was to shew a Surrender and express Agreement before the Action brought It might have been insufficient pleading not to shew an Acceptance of the Surrendree but 't is not substance for if Issue should be taken whether a Surrender or not Cro. Eliz. 249. and a Verdict for the Plaintiff that defect of setting forth an Acceptance is aided by the Statute of Ieofails In this Case there is not only the Word Surrender but * Grant and Release which may be pleaded without any consent to it and a Grant by operation of Law turns to a Surrender because a Man cannot have two Estates of equal dignity in the Law at the same time Neither can it be said that there remained any Estate in Simon Leach after this Surrender executed for 't is an absurd thing to imagine that when he had done what was in his power to compleat a Conveyance and to divest himself of an Estate yet it should continue in him Therefore the Remainder in Contingency to the Lessor of the Plaintiff was destroyed by this Surrender of the Estate to him in reversion for by that means when it did afterwards happen there was no particular Estate to support it But notwithstanding the Iudgment was affirmed and afterwards Anno quarto Gulielmi Mariae upon a Writ of Error brought in the House of Lords it was reversed Idem versus Eundem THIS Point having received a legal determination the same Plaintiff brought another Action of Trespass and Ejectment against the same Defendant Surrender by a person Non compos is void and at a Trial at the Barr in Easter Term nono Gulielmi Regis another special Verdict was found upon which the Case more at large was viz. That Nicholas Leach being seised in Fee of the Lands in question made his Will in these Words viz. In the Name of God Amen c. I devise my Mannors of Bulkworth Whitebear and Vadacot in Devonshire and Cresby Goat and Cresby Grange in Northallerton in Yorkshire unto the Heirs Males of my Body begotten and for want of such Issue Male I devise the same unto my Brother Simon Leach for Life and after his decease to the
they are not properly sua 278 Exposition of Words and Sentences See Number Subsequent words may explain a former Sentence in a Deed but in Wills the first words guide all which follow 82 2. Action was brought by Original for that the Defendant prosecut ' fuit adhuc prosequitur in the Admiralty those words adhuc prosequitur shall not be construed to make it subsequent to the Original but must refer to the time of suing it forth 103 157 3. Doubtful Words must be Expounded always against the Lessor 230 4. To make an Assurance to the Obligee and his Heirs the Conjuction and shall be taken in the disjunctive 235 F. Fair See Trade IF the place where it should be kept is not limited by the Grant it may be kept where the Grantee will 108 False Imprisonment It will not lye against a Sheriff for taking the Body by vertue of a Casa upon an Erronious Judgment for the Execution is good till avoided by Writ of Error 325 Fees Of the Clerks of the Crown-Office the Court will not regulate upon a Motion but if oppressive they must be indicted for Extortion 297 Fines levied See Tenant at Will 6. One of the Cognisors died before the return of the Writ of Covenant 't is Error but not in the case of a Purchaser for a valuable consideratino for the Court will interpose 99 2. If the Cognisor doth dye after the Entry of the Kings-Silver the Fine is good 140 3. Writ of Covenant Teste 15th of January returnable in Crastino Purificationis taken by Dedimus 18th of Januarii The Cognizor died in Easter-Week following but four days before her Death the Kings-Silver was entred as of Hillary-Term precedent this was held a good Fine 141 4. Where a person is in possession by vertue of a particular Estate for Life and accepteth a greater Estate it shall not divest the Estate of those in Remainder for Life so as the same may be barred by Fine and Non-claim 195 5. Lease for one hundred years in Trust to attend the Inheritance cestuy que Trust being in possession Demises to another for fifty years and levied a Fine and the five years passed the Term for a hundred years is divested by this Fine and turned to a right and so barred 196 6. In what Cases a Fine is a Bar and what not 198 Fines upon Admittance See Admittance Copihold Debt 2. Infant 9. The Judges are to determine whether it be reasonable or not 134 2. Lord cannot enter for non-payment of an unreasonable Fine 134 Forfeiture If Tenant for years make a Feoffment 't is a Forfeiture but if he make a Lease and Release ' tho 't is of the same Operation yet 't is no forfeiture 151 Fraud See Evidence G. Grants Grantor and Grantee WHere an Interest is coupled with a Trust in a Grant it shall go to the Executor of the Grantee 43 2. Grants must be certain otherwise they are void 134 Grants of the King Not good for the sole Printing of Blank Bonds exclusive of all other Printers 75 2. A Grant to restrain trading to particular places is good 77 3. But of sole making Cards not good because it restrains a whole Trade ibid. 4. A Grant cannot divest the Subject of a Right enjoyed long before it was made ibid. 5. Cannot discharge a person of a Duty to which he is made lyable by a subsequent Act of Parliament 96 6. Difference between his Grants and Prohibitions 7. Where his Grants ought to be taken very strictly 168 8. In a Quo Warranto the Defendant pleaded that the King was seised in Fee of a Franchise who granted it to another Habendum the Hundred whether good or not 199 Gun See Iustice of Peace 3. Conviction before a Justice of Peace upon the Statute of H. 8. for keeping a Gun not having 100 l. per Annum quashed because it was said non habuisset instead of nunquam Habuit 100 l. per Annum 280 H. Habendum WHere it shall be said to explain the general Words preceding 81 2. Nothing passes in the Habendum but what was mentioned in the Premisses 199 Heir Error by the Plaintiff ut Consanguineus Haeres viz. Filius c. 't is sufficient without shewing the descent from more Ancestors 152 2. Where he shall take by Descent and where by Purchase 205 3. In a Bond where the word Heir is a word of Limitation and not a designation of the person 233 4. Reversion in Fee descended to an Heir after the Estate Tail spent and an Action was brought against him upon a Bond of his Ancestor 't is not necessary that the Plaintiff name all the intermediate Remainders but him who was last actually seized of the Fee 255 Heriot Lease for 99 years if A. B. C. so long live paying an Heriot upon the death of either A. assigns the term no Heriot shall be taken of the Assignee 231 2 May seize or distrain for Heriot Service if distrain it may be the Beast of any man upon the Land but if he seise it must be the very Beast of the Tenant ibid. 3. Where an Heriot is reserved upon a Demise it differs from those which are due by Tenure 231 4. Lease for 99 years if M. and D. so long live reserving an Heriot after death of either provided if D. survive no Heriot to be paid but M. survived the Court was divided whether a Heriot should be paid 230 Highways A Man cannot be exempted from repairing by the Grant of the King if made before the Statute of Ph. Mar. which charges him to repair 96 Homine Replegiando Brought for a Monster and upon the Return of the Sheriff that he had replevyed the Body he was bailed 121 2. Brought for a young Woman taken out of her Parents Custody and married against her Consent 169 Hue and Cry See Robbery Hundred Court This Court was first derived from the County Court 200 2 Hundreds were usually granted to Abbots and their Possessions coming to the Crown by dissolution of their Abbies are merged and cannot be regranted 200 I. Ideot HOW it differs from a Lunatick 43 2. The King hath power to grant his Estate to any person without Accompt to be given ibid. 3. Grant of an Ideot by the King the Grantee dieth his Executor hath an Interest in him ibid. Ieoffails See Indictment 8. Travers 4. Variance 2. None of the Statutes help an insufficient Indictment 79 2. Variance between original and declaration not aided by the Statute of Ieofails 136 3. Want of concluding without a Travers is but matter of form and aided 319 Indictment For using of Alias Preces than enjoined by the Book of Common Prayer it may be upon an extraordinary occasion and so no Offence 79 2. For scandalous words whether it lieth as it doth for Libels the one being a private the other a publick Offence 139 3. For Baretry in soliciting of a Suit against another who was not indebted to the person 97
Release or Confirmation and then his Council should advise what sort of Conveyance is proper But here it is to make an Assignment and such as the Parties had agreed on If a Man should be bound to give another such a Release as the Iudge of the Prerogative Court shall think fit 5 Co. 23. Lambs Case 1 Rol. Abr. 424. pl. 8. the person who is so bound must procure the Iudge to direct what Release shall be given because the Condition is for his benefit and he hath taken upon him to perform it at his Peril 'T is usual for Men to have Council on both sides to put their Agreements into method but in this Case it being left generally as Council shall direct what reason can be given why the Defendants Council shall not be intended especially when it seems by the penning of the Covenant he shall For an Assignment is to be made as Council shall direct and here being a Verdict for the Plaintiff it must now be presumed that the Defendants Council was first to give the advice and then he was to make the Assignment E contra E contra It was argued that first as to the Verdict 't is not materially objected in this Case because the Plea is non est factum so that nothing of the special matter could come in Evidence Now admitting this Covenant to be general yet one of the Parties must make his choice of Council before he can entitle himself to an Action All Deeds are taken according to the general intendment and therefore by this Covenant his Council is to advise to whom the Assignment is to be made 3 Bulstr 168. for if the Council of the Defendant should advise an insufficient Deed that would not have saved his Covenant Befides the Plaintiff hath not averred that Council did not advise and therefore the Defendant could not plead any thing but non est factum Adjornatur Anonymus A Pleint was removed out of the Lord Mayors Court by Habeas Corpus the Return whereof was Exceptions to a By-Law that the City of London was an ancient City Incorporate and that time out of mind there was a Custom that the Portage and unlading of all Coals and Grain coming thither should belong to the Mayor and Aldermen c. That there was a Custom for them to regulate any Custom within the City c. Then they set forth an Act of Common-Council by which the Porters of Billingsgate were made a Fellowship and that the Meeters of Corn should from time to time give notice to the Porters to unlade such Corn as should arrive there and that no Bargeman not being Free of the said Fellowship shall unlade any Corn upon the Forfeiture of 20 s. to be recovered in an Action brought in the Name of the Chamberlain and that the Party offending shall have no Essoign or Wager of Law Then they set forth the Iudgment in the Quo Warranto and the re-grant and that the Defendant not being of the said Fellowship did unlade one hundred Quarters of Malt c. Serjeant Thompson took many Exceptions to this By Law but the most material were 1. It appears upon the Return that the City of London hath assumed an Authority to create a Fellowship by Act of Common Council which they cannot for 't is a Prerogative of the Crown so to do and they have not averred or shewed any special Custom to warrant such an Authority 2. They have made this By-Law too general for if a Man should carry and unlade his own Goods there he is lyable to the Forfeiture in which Case he ought to be excepted 3. This Act of Common Council prohibits Bargemen not being Free of the Fellowship of Porters to unlade any Coals or Grain arriving there and they have not averred that the Malt unladed did arrive c. so they have not pursued the words of the By-Law 4. They say in this Law Godb. 107. that the person offending shall have no Essoign or Wager of Law which is a Parliamentary Power and such as an inferiour Iurisdiction ought not to assume Adjornatur Beak versus Thyrwhit THere was a Sentence in the Court of Admiralty Whether Trover will lie for a Ship after Sentence in Admiralty for the same Ship concerning the Taking of a Ship and afterwards an Executrix brought an Action of Trover and Conversion for the same The Defendant after an Imparlance pleads that at the time of the Conversion he was a Servant to King Charles the Second and a Captain of a Man of War called the Phoenix and that he did seize the said Ship for the Governour of the East-India Company she going in a trading Voiage to the Indies contrary to the King's Prohibition c. And upon a Demurrer these Exceptions were taken to this Plea 1. The Defendant sets forth that he was a Servant to the King but hath not shewed his Commission to be a Captain of a Man of War 2. That he seized the Ship going to the Indies contrary to the King's Prohibition and hath not set forth the Prohibition it self It was Argued by the Council contra That it may be a Question whether this was the Conversion for which this Action is brought for it was upon the Sea and the Defendant might plead to the Iuisdiction of this Court the Matter being then under the Cognizance of the Admiralty But as to the Substance of this Plea 't is not material for the Defendant either to set forth his Commission or the King's Prohibition he hath shewed enough to entitle the Court of Admiralty to a Iurisdiction of this Cause and therefore this Court cannot meddle with it for he expresly affirmeth that he was a Captain of a Man of War and did seize this Ship c. which must be intended upon the Sea so that the Conversion might afterwards be upon the Land Cro. Eliz. 685. yet the original cause arising upon the Sea shall and must be tried in the Admiralty and it having already received a determination there shall not again be controverted in an Action of Trover The Case of Mr. 3 Keb. 785. Hutchinson was cited to this purpose who killed Mr. Colson in Portugal and was acquitted there of the Murder the Exemplification of which Acquittal he woduced under the great Seal of that Kingdom being brought from Newgate by an Habeas Corpus to this Court notwithstanding the King was very willing to have him tried here for that Fact the consideration whereof he referred to the Iudges who all agreed that he being already acquitted by their Law could not be tryed again here Adjornatur Smith versus Pierce A Special Verdict was found in Ejectment A Term for years was devised for payment of Debts the Remainder over in Tail he in Remainder enters and levies a Fine and settles the Land upon his Wife for life and dies the Wife surviving and the Debts not paid whether this Term is barred by
the Fine and Non-claim the Substance of which was That Robert Basket was seized in Fee of the Lands in Question who by Will devised it to Philip Basket and others for 99 years with power to grant Estates for the payment hf the Debts and Legacies of the Testator the Remainder in Tail to John Basket his Brother but that if he gave Security to pay the said Debts and Legacies or should pay the same within a time limited that then the Trustees should assign the Term to him c. John Basket entred after the death of his Brother with the assent of the said Trustees and received the Profits and paid all the Legacies and all the Debts but 18 l. The Iury find that John had Issue a Daughter only by his first Wife after whose death he married another Woman and levied a Fine and made a Settlement in consideration of that Marriage upon himself for Life and upon his Wife for Life with divers Remainders over that he died without Issue by his second Wife who entred and five years were past without any claim c. And now the Heir at Law in the name of the Trustees brought this Action The Questions were 1. Whether the Term for 99 years thus devised to the Trustees was bound by this Fine and Nonclaim or not 2. Whether it was divested and turned to a Right at the time of the Fine levied For if it was not then the Fine could not operate upon it It was agreed that as a Disseisin is to a Freehold so is a divesting to a Term and that a Fine and Non-claim is no Barr but where the Party at the time of the levying thereof had a Will to enter and when the Estate of which 't is levyed is turned to a Right That in the Case at the Barr the Entry of John Basket was tortious because the legal Estate was still in the Trustees But if he had gained any Right by his Entry 't is only a Tenancy at Will to them for they took notice of the Devise and he entred by their consent and such a Right is not assignable and then a Fine levyed is no Barr. To prove this 9 Co. 106. Margaret Prodger's Case was cited where the the Lord granted a Copyhold to John Elizabeth and Mary for their Lives and afterwards by Deed enrolled sold the Land to John in Fee and levyed a Fine to him and his Heirs c. and five years passed without any Claim John dyed his Son entred and levyed another Fine to Trustees to the use of himself and Margaret his Wife for Life the Remainder to his own right Heirs the Son died and his Wife survived who having a Freehold for Life distrained and the Husband of Elizabeth brought a Replevin It was adjudged that this Fine and Nonclaim did not barr those in Remainder becase the Bargain and Sale to John did not divest their Estate and turn it to a Right for the Lord did what he might do and John accepted what he might lawfully take who being in possession by virtue of a particular Estate for Life could not by this acceptance divest the Estate of her who had the Freehold and the Fine and Nonclaim could not do it for to what purpose should he make any Claim when he was in actual possession of the thing to be demanded And he who is so in possession need not make any Claim either to avoid a Fine or a collateral Warranty Now though at the Common Law there must be Livery and Seisin to create an Estate of Freehold 3 Co. Fermer 's Case yet any thing is sufficient to make an Estate at Will in which neither the Inheritance or the Title of the Land is concerned and therefore a Fine levyed by such a Tenant is no Barr. 'T is true Sid. 458. Freeman versus Barns if a Lease be made for an hundred years in Trust to attend the Inheritance and Cestuy que Trust continues in possession and devises to another for fifty years and levies a Fine and the five years pass without Claim he being still in possession after the first Lease made is thereby become Tenant at Will and by making the second Lease the other is divested and turned to a Right though he was not a Disseisor and so 't is barred by the Fine because the Cestuy que Trust of the term of one hundred years was also Owner of the Inheritance But in the Case at the Barr John shall not be a Disseisor but at the Election of the Trustees of the Term of 99 years to prove which there are many Authorities in the Books As if Tenant at Will make a Lease for years and the Lessee enters Latch 53. 1 Leon. 121. Lit. Sect. 588. 't is not a Disseisin but at the Election of him who hath the Freehold and even in such Case if the Tenant of the Freehold should make a Grant of the Land 't is good though not made upon the Land it self for he shall not be taken to be out of possession but at his own Election 'T is like the common Case of a Mortgagee for years where the Mortgagor continues in possession twenty years afterwards and pays the Interest and in that time hath made Leases and levyed a Fine this shall not barr the Mortgagee for the Mortgagor is but Tenant at Will to him The Trustees need not make any claim in this Case because there was no transmutation of the possession so they could take no notice of the Fine 'T is true John Basket entred by their consent but still as Tenant at Will to them and the Acts done by him after his Entry will not didest this Term for though he made a Bargain and Sale of the Lands yet nothing will pass thereby but what of right ought to pass He likewise demised the Lands to Vndertenants for years but 't is not found that they entred but admitting they did enter yet that could not displace this Term for these Tenants claimed no more than for one or two years and made no pretence to the whole Term. But if by either of these Acts the Term should be divested yet still it must be at the election of those who have the Interest in it Dyer 61 62 173. The Case of * Cro. Car. 302. 1 Rol. Abr. 661. Blunden and Baugh which is grounded upon Littleton's Text Sect. 588. is an Authority to this purpose which was The Father was Tenant in Tail and his Son was Tenant at Will who made a Lease for years then both Father and Son join in a Fine to the use of the Son for Life and to Elizabeth his Wife for Life the Remainder to the Heirs Males of the Body of the Son who died without Issue Male the Lessee being in possession made a Conveyance of the Estate by Bargain and Sale to Charles Lord Effingham who was Son and Heir of the Tenant in Tail who made a Lease to the Plaintiff who was ousted by the