here to forbear to Sue generally but to stay a Suit against the Defendant whom he could not Sue To which it was answered That after a Verdict it shall be intended there was cause of Suit as Hob. 216. Bidwell and Cattons Case And Attorney brought an Assumpsit upon a Promise made to him in Consideration that he would stay the Prosecution of an Attachment of Priviledge and there held that it need not appear that there was cause of Suit for the Promise argues it and it will be presumed And here 't is a strong intendment that the Bond was made in Common Form which binds the Heirs But Iudgment was given against the Plaintiff for the Court said it might be intended that there was cause of Action if the contrary did not appear which it doth in this Case for the Bond cannot be intended otherwise than the Plaintiff himself hath expressed it which shews only that the Ancestor was bound And whereas it was said by the Plaintiff's Counsel that this would attaint the Jury they finding Assumpsit upon a void Promise Hale said there was no colour for that conceit The Plaintiff having proved his Promise and Consideration as 't was laid in the Declaration which is the only thing within their charge upon Non Assumpsit modo forma Bulmer versus Charles Pawlet Lord Saint John IN an Ejectment upon a Tryal at Bar this question arose upon the Evidence Tenant for Life Remainder in Tail to J. S. joyn in a Fine J.S. dies without Issue whether the Conusee should hold the Land for the Life of the Tenant for Life Serjeant Ellis pressed to have it found Specialy tho' it is resolved in Bredons Case that the Estate of the Conusee shall have Continuance but he said it was a strange Estate that should be both a Determinable Fee and an Estate pur auter vie and he cited 3 Cro. 285. Major and Talbots Case where in Covenant the Plaintiff sets forth that a Feme Tenant for Life Remainder in Fee to her Husband made a Lease to the Defendant for years wherein the Defendant covenanted with the Lessors their Heirs and Assigns to repair and they conveyed the Reversion to the Plaintiff and for default of Reparations the Plaintiff brought his Action as Assignee to the Husband And resolved to be well brought because the Wives Estate passed as drowned in the Fee The Court said Bredons Case was full in the point but the Reason there given Hale said made against the Resolution for 't is said that the Remainder in Tail passes first which if it does the Freehold must go by way of Surrender and so down but they shall rather be construed to pass insimul uno flatu Hob. 277 In Englishes Case it was resolved it Tenant for Life Remainder in Tail to an Infant joyn in a Fine if the Infant after Reverse the Fine yet the Conusee shall hold it for the Life of the Conusor 1 Co. in Bredons Case and he resembled it to the Case in 1 Inst a Man seized in the right of his Wife and entituled to be Tenant by the curtesie joyns in a Feoffment with his Wife the Heir of his Wife shall not avoid this during the Husbands Life Nevertheless he told Ellis That he would never deny a Special Verdict at the request of a Learned Man but it appearing that he Plaintiff had a good Title after the Life should fall the Defendant bought it of him and the Jury were discharged Sacheverel versus Frogate PAs 23 Car. 2. Rot. 590. In Covenant the Plaintiff declared That Jacinth Sacheverel seized in Fee demised to the Defendant certain Land for years reserving 120 l Rent And therein was a Covenant that the Defendant should yearly and every year during the said Term pay unto the Lessor his Executors Administrators and Assigns the said Rent and sets forth how that the Lessor devised the Reversion to the Plaintiff an for 120 l Rent since his decease he brought the Action The Defendant demanded Oyer of the Indenture wherein the Reservation of the Rent was yearly during the Term to the Lessor his Executors Administrators and Assigns and after a Covenant prout the Plaintiff declared and to this the Defendant demurred It was twice argued at the Bar and was now set down for the Resolution of the Court which Hale delivered with the Reasons He said they were all of Opinion for the Plaintiff For what interest a Man hath he hath it in a double capacity either as a Chattel and so transmissible to the Executors and Administrators or as an Inheritance and so in capacity of transmitting it to his Heir Then if Tenant in Fee makes a Lease and reserves the Rent to him and his Executors the Rent cannot go to them for there is no Testamentary Estate On the other side if Lessee for a 100 years should make a Lease for 40 years reserving Rent to him and his Heirs that would be void to the Heir Now a Reservation is but a Return of somewhat back in Retribution of what passes and therefore must be carried over to the Party which should have succeeded in the Estate if no Lease had béen made and that has béen always held where the Reservation is general So tho' it doth not properly create a Fee yet 't is a descendible Estate because it comes in lieu of what would have descended therefore Constructions of Reservations have been ever according to the Reason and Equity of the thing If two Joynt-teants make a Lease and reserve the Rent to one of them this is a good to both unless the Lease be by Indenture because of the Estoppel which is not in our Case for the Executors are Strangers to the Deed. 'T is true if A. and B. joyn in a Lease of Land wherein A. hath nothing reserving the Rent to A. by Indenture this is good by Estoppel to A. But in the Earl of Clare's Case it was resolved That where he and his Wife made a Lease reserving a Rent to himself and his Wife and his Heirs that he might bring Debt for the Rent and declare as of a Lease made by himself alone and the Reservation to himself for being in the Case of a Feme Covert there could be no Estoppel altho' she signed and sealed the Lease There was an Indenture of Demise from two Joynt tenants reserving 20 l Rent to them both one only sealed and delivered the Deed and he brought Debt for the Rent and declared of a Demise of the Moiety and a Reservation of 10 l Rent to him And resolved that he might Between Bond and Cartwright which see before and in the Common Pleas Pas 40. Eliz. Tenant in Tail made a Lease reserving a Rent to him and his Heirs It was resolved a good Lease to bind the Entail for the Rent shall go to the Heir in Tail along with the Reversion tho' the Reservation were to the Heirs generally For the Law uses all industry imaginable to conform
there be not an Entry immediately a Livery within the View is not good and in this case by the Marriage he becomes seised in the Right of his Wife and cannot by his own Act divest himself of that Estate or work a prejudice to his Wife by putting the Estate out of her Which makes it differ from the Case of the 38 E. 3. 11. b. Where a man made Livery of the within View to a Woman and before she Entred married her and claimed the Estate in Right of his Wife there held to be a good Feoffment For in that case there is no Alteration of the Estate consequent upon the Intermarriage Neither is it like the Case of 2. R. 2. quoted in Forse and Hemling's Case in the 4 Co. Where a Woman grants a Reversion to a Man and they Intermarry before Attornment For there the Grant is to be perfected by the Act of a Stranger which in reason should be more available to a man than his own Act. But it was Resolved by all the Court that this Livery was well Executed after the Marriage For an Interest passeth by the Livery in View which cannot be countermanded The effectual part of it viz. Go Enter and take possession was before the Marriage tho' the Estate is not in the Feme while Entry She hath done all on her part to be done and hath put it meerly in the Foffor's power and when he Enters it hath a strong retrospect to the Livery and shall be pleaded as a Feoffment when she was sole If two Women Exchange Lands and one marries before Entry this shall not defeat the Exchange The Cases of 2 R. 2. and 38 Ed. 3. are as strong Emerson versus Emerson TRin. ult Rot. 1389. Error of a Judgment in the Common Pleas in an Action of Trespass by the Plaintiff as Executor upon the Statute of 4 E. 3. De bonis asportatis in vita Testatoris The Plaintiff declared that the Defendant blada crescentia upon the Freehold of the Testator messuit defalcavit cepit asportavit Vpon Not Guilty pleaded a Verdict and Judgment was for the Plaintiff and assigned for Error That no Action lay for Cutting of the Corn for that is a Trespass done to the Freehold of the Testator for which the Statute gives the Executor no Action and while the Corn stands 't is to many purposes parcel of the Freehold So that if a man cuts Corn and carries it away presently tho' with a Felonious intent 't is no Felony Otherwise if he let it lye after 't is Cut and at another time comes and steals it So that it appears for parcel of the Trespass no Action lyes then entire Damages being given as well for the Cutting as Carrying away the Corn the Judgment is Erroneous But all the Court were of another Opinion 9 Co. 78. for 't is but one entire Trespass the Declaration only describes the manner of Taking it away Indeed if it had been quare clausum fregit blada asportavit it had been naught or if he had Cut the Corn and let it lye no Action would have lain for the Executor So if the Grass of the Testator be Cut and carryed away at the same time because the Grass is part of the Freehold but Corn growing is a Chattel The Statute of 4 Ed. 3. hath been always Expounded largely Mr. Amhurst's Case of Grays-Inn SErjeant Maynard moved for a Mandatory Writ to the Mayor and Court of Aldermen of London upon the Statute of 13 Car. 2. c. 11. to give Judgment according to the late Act of 22 nunc Regis The Case was That the Act appoints a Market to be on certain Ground set out in Newgate-Market and in all such cases for the satisfaction of the Owners of the Ground if the City cannot agree with them for it it Impowers the Mayor and Aldermen to Empannel a Jury who shall Assess and Adjudge what satisfaction and recompence shall be given to the Owners and says That the Verdict of such Jury on that behalf to be taken and the Judgment of the said Mayor and Court of Aldermen thereupon and the Payment of the Money so awarded or adjudged c. shall be binding and conclusive to and against the Owners c. Now there was Fifteen thousand Foot of Amhurst's Ground taken away for this purpose and a Jury had been Empannelled and had assessed and awarded him Two shillings a Foot but the Mayor and Court of Aldermen refused to give Sentence or Judgment thereupon This says he is a Ministerial thing and this Court will interpose when any Officers will not do Iustice or will out-go their Authority For there is the same Reason to command to do Justice as to prohibit Injustice A Bishop of Exon had Fallen-out with a Town in Cornwal and denyed them Chrisme and a Mandamus went hence to command him to give it them Mr. Noy brought in a Copy of it Sir William Jones This somewhat resembles a Procedendo ad Judicium this is stronger than the Case of commanding a Bishop to grant Administration there this Court commands them to observe a Statute tho' it be in a Matter this Court has no Cognizance of We can't have an Action on the Case Hale If they don't make you Satisfaction your Interest is not bound Maynard But that is taken away by the same Act Pag. 143. 4. We are Lessee to â—he Dean and Chapter of St. Pauls Hale 'T is not Enacted That they shall give Judgment but that is implyed I never knew a Writ commanding to grant Administration tho' the Opinion has been so Sir William Jones That was done in Sir G. Sandy's Case after great Debate Then a Rule was made to shew Cause why a Writ should not go Afterwards the Court granted a Writ but willed them to consider well of the Form and to whom to direct it Loyd versus Brooking TRin. ult 1046. The Case was Tenant for Life Remainder to his first Son in Tail Remainder to J. S. for Life Remainder to his first Son in Tail c. Tenant for Life after the Birth of his first Son accepts a Fine from J. S. to certain uses and then makes a Feoffment after which the Son of J. S. is Born and whether his Contingent Remainder were destroyed or should vest in him was the Question And it was Resolved by the whole Court upon the first Opening that the Contingent Remainder was not destroyed the acceptance of the Fine displaced nothing the Feoffment divested all the Estates but the Right left in the first Son in Remainder supported the Contingent Remainders My Lord Coke's Case 2 Rolls 796 797 is stronger He Covenanted to stand seised to the use of himself for Life Remainder to his Wife for life Remainder to his Daughter for Life when born Remainder to her first Son in Tail And minding to disturb the arising of the Contingent Estates attempted it by these two Means First He grants the Reversion and in the
the Earl of Warwick and the Earl of Manchester or the major part of them And in case she Marries without such Consent or happen to dye without Issue then I give and bequeath it to George Porter viz. the Lessor of the Plaintiff The Earl of Newport dies and the Lady Anne Knolles being of the Age of 14 years marries with Fry without the Consent of her Grandmother or either of the Earls and it was found that she had no Notice of the Will until after the Marriage and that George Porter at that time was of the Age of 8 years and that after the Death of the Countess she Entred and George Porter Entred upon her and made the Lease to the Plaintiff This Case having been twice Argued at the Bar viz. in Michaelmas Term by Sir William Jones for the Plaintiff and Winnington for the Defendant And in Hillary Term last by Finch Attorney General for the Plaintiff and Sir Francis North Solicitor General for the Defendant It was this Term Resolved by the Court viz. Hale Twisden and Rainsford Moreton being absent for the Plaintiff upon these Reasons Rainsford Here have been three Questions made First Whether the words in the Will whereby the marriage of the Defendant is restrained make a Condition or Limitation If a Condition then none but the Heir can Enter for the Breach But 't is clear that they must be taken as a Limitation to support the intent of the Devisor and to let in the Remainder which he limits over 1 Rolls 411. Secondly Whether the Infancy of the Defendant shall excuse her in this Breach and clearly it cannot For a Condition in Deed obliges Infants as much as others 8 Co. 42. Whittingham's Case the difference between Conditions in Fact and Conditions in Law Especially in this Case the nature of the Condition shewing it to be therefore imposed upon her because she was an Infant Thirdly and the main Point of the Case Whether the want of Notice shall save the Forfeiture of the Estate As to that Let the Rules of Law concerning Notice be considered First I take a difference where the Devisee who is to perform the Condition is Heir at Law and where a Stranger The Heir must have Notice because he having a Title by Discent need not take notice of any Will unless it be signified to him And so is Fraunce's Case 8 Co. Where the Heir was Devisee for 60 years upon Condition not to disturb the Executor in removing the Goods and Resolved that he should not lose his Estate upon a Disturbance before he had Notice of the Will But where the Devisee is not Heir as in this Case he must inform himself of the Estate devised to him and upon what terms Another Rule is When one of the Parties is more privy than the other Notice must be given but where the Privity is equal Notice must be taken by the party concerned A Bargainee shall not Enter for a Condition broken before Notice for the Bargain and Sale lies in his Cognizance and not the Lessees So if a Lease be made to commence after the end of the former if the first be surrendred the Lessor shall not Enter for a Condition broken for Non payment of Rent until Notice given of the Surrender 3 Leon. 95. And therefore there shall be no Lapse to the Ordinary upon a Resignation without Notice If a man makes a Feoffment upon Condition to Enter upon payment of such a Sum at a place certain he must give Notice to the Feoffee when he will tender the Money Co. Lir. 211. a. Dyer 354. And upon this Reason is Molineux's Case 2 Cro. 144. where a Devise was that his Heir should pay such Rents and if he made default then his Executors should have the Lands paying the said Rents and if they failed of Payment then he devised the Land to his younger Children to whom the Rents were to be paid It was Resolved Non-payment by the Executors should be no Breach until they had Notice that the Heir had failed which was a thing that the younger Children must be privy to But in 22 E. 4. 27 28. Tenant for Life Lets for years and dies the Lessee must remove in convenient time to be reckoned from the death of the Tenant whether he had Notice of it or no For he in Reversion is presumed to be no more privy to it than himself So Gymlett and Sands's Case 3 Cro. 391. and 1 Rolls 856. where Baron and Feme were Tenants for Life Remainder to the Son in tail Remainder to the right Heirs of the Baron the Baron makes a Feoffment with Warranty and dies then the Feme and Son joyn in a Feoffment this is a Forfeiture of the Estate of F. tho' she had no Notice of the Feoffment or Warranty whereby the Right of the Son was bound So Spring and Caesar's Case 1 Rolls 469. A. and B. joyn in a Fine to the use of A. in Fee if B. doth not pay 10 l to A. before Michaelmas and if he doth then to the use of A. for Life Remainder to B. B. dies before Michaelmas the Heir of B. is bound to pay the 10 l without any Notice given by A. The Reason given which comes home to our Case is For that none is bound to give Notice and then it must be taken tho' indeed a second be added For that B. from whom his Heir derives had Notice The Mayor and Comminalty of London aganst Atford 1 Cro. where a Devise was to six Persons to pay certain Sums for the Maintenance of an Almshouse c. and if through Obliviousness or other Cause the Trusts were not performed then to J. S. upon the same Condition and if he failed by two Months then to the Mayor and Comminalty of London upon the same Trusts The six did not perform the Trusts J.S. enters J. N. enters upon him and a Fine with Proclamations was levied and Five years passed and the better Opinion was that the Mayor and Comminalty of London were bound to pay the Money appointed by the Will altho' they had no Notice that the six persons or J. S. had failed tho' indeed the Case is adjudged against them as being barred by the Fine and Non-claim Sir Andrew Corbet's Case 4 Co. is very strong to this purpose where a Devise is to J. S. until he shall or may raise such a Sum out of the Profits of the Land If a Stranger Enters after the death of the Devisor tho' the Devisee had no Notice of the Will yet the time shall run on as much as if he had the Land in his own possession These Rules being applied to the present Case it will appear no Notice is to be given First The Defendant is as privy to the Will as any one else viz. as George Porter who is found also to be an Infant It is not found whether there were any Executors if it had they were not concerned to give Notice nor did it
import the Heir For he could have neither benefit or loss by the Condition The Two Cases which have been chiefly relyed upon for the Defendant were first France's Case which differs because it was in case of an Heir Secondly the Case of Sanders and Carwell 8 Jac. in a private Report of Sir Geoffrey Palmer the Attorney General in which there is no clear account of the Case and we cannot find the Roll It was a Devise to his Wife for life Remainder to his Daughter in tail upon Condition to pay Money and it was held that the Non-payment would be no breach unless she had Notice First It was an Opinion only upon Evidence and Lea and Chamberlain only in Court Secondly For ought appears the Daughter might be Heir and then 't is good Law Thirdly It appears there was a foul Concealment of the Will for Four years time within which time for ought appears the Condition was to have been performed Twisden was of the same Opinion but I omit his Argument because I could not hear him perfectly Hale was of the same Opinion As to the first Point I shall discharge the Case of it as not fit to be called in question For without peradventure tho' the word Condition be used yet limiting a Remainder over makes it a Limitation for so 't is plain the Testator meant and 't is as much as if he had said And if she Marries c. then to remain without the word Condition And this hath received as many Resolutions as ever any Point did viz. Wiseman and Baldwin's Case 2 Leon. 51. Owen 412. 1 Leon. 383. 18 Eliz. 1 Rolls 412. Hains worth and Pretty 3 Cro 833. and 2 Cro. Pells and Browne's Case with a great many more and nothing but the Opinion in Mary Portington's Case 10 Co. against it When Fynch Attorney General Argued this Case he observed that Coke himself was of another Opinion in the 3d Report in Wellock and Hammond's Case cited in Boraston's Case For tho' there 't is the word Paying only which is adjudged a Limitation yet Coke saith the Quaere in Dyer 317. is upon that well Resolved and the Case in Dyer is upon the word Condition expresly Then to proceed to the other Matters Here is an Estate Tail devised to the Defendant subject to Two Limitations the one of Law viz. Dying without Issue the other express and in Fact viz Marrying without the consent c. and both are coupled together so that whenever she Marries without Consent c. her Estate determines and is transferred to him in Remainder without either Entry or Claim 'T is all one as if the Estate had been devised to her for Life and if she Marries then to remain which had been but an Estate quamdiu sola vixerit And it is to be observed that if her Marriage here be no breach of the Conditional Limitation for so 't is properly called because she had no Notice then it can never be broken So that the Question must be Whether such a Marriage shall discharge the Estate of it and make it become absolute 'T is true where the Condition requires such an Act to be done as may be done after Notice in hath been questioned whether the Law shall not protract the Time limited for performance until Notice be had 1 Cro. Alford's Case which was a Condition for Payment of Money But this is a thing of that nature that being done no subsequent Notice can ever retrieve Then 't is to Enquire How far the want of Notice will excuse It must be considered that 't is a Will made by a person now dead who can give no Notice neither can any come to the knowledge of it without Enquiry and one hath the same means to obtain it with another and the person who would take advantage of it must make the best Enquiry he can If a Devise were made to the Defendant it was her Concern to Enquire upon what terms until then how can it be ascertained whether she will take it And so it was Porter's Business to Enquire no difference between them in this respect So that upon these Five Accounts it will appear that no Notice is requisite to be given in this Case First Because the Testator hath not appointed any Notice to be given than he which was the Disposer might give upon what terms he pleased and this Matter of Notice shall not be added unless it were in a Case wherein the Law would very strongly require it Secondly Because there is no Person who can reasonably be engaged to give Notice viz. not the Heir for he is Disinherited not the Executors for they are not concerned in the Freehold nor the Trustees for they have but their labour for their pains nor Porter for he is no more bound to give than she to take Notice Thirdly Because each Party have the same means of Informing themselves of the Will i.e. by Enquiry Fourthly It more imported the Defendant to know it as relating to her own Interest the Will which gives the Estate gives it upon this Conditional Limitation Corbet's Case 4 Co. comes very close where if the Devisee stays while the time wherein the Money might be raised is elapsed he shall never raise it after Suppose a man dies possessed of a Term upon which a great Rent is reserved shall the Executor after that he hath proved the Will throw up the Term as pretending not to have known of it An Estate is devised to one durante Viduitate shall she Marry and because she had do Notice of the Will hold the Estate absolutely for her Life There is the same Reason in this Case for this Proviso is a part of the Limitation of the Estate it self No man is presumed to be ignorant of his own Interest and as he must take Notice to acquire so of the manner of the Estate he gains He that gave it thus was not obliged to do so much Fifthly It was not impossible for the Defendant to have made Enquiry and she must not take advantage of her Latches A Bond with Condition to pay 50 l when the Obligee shall marry the Obligor's Kinswoman in Debt upon this it was Resolved that the Obligee was not bound to give Notice of the Marriage tho' it lay in his own privity because the Obligor might have known it by other means Hill 1650. Between Try and .... Rot. 1081. B. R. It was proper for the Defendant to have Enquired whether her Grandfather gave her any thing And so it was for him that should marry her Ante. Harwood's Case Adjudged here Hill ult was upon this Reason He married a City Orphan in Kent and was fined by the Court of Orphans because he had not first applied himself to them for their Licence c. according to the Custom of the City And the Fine was Resolved here to be well imposed tho' he had no Notice that she whom he married was an Orphan because it was his
Respondeas Ouster But because the Plaintiff said he would be content with the latter that was not Resolved Anonymus IN Trespass Quare clausum fregit 't is a Plea in Abatement to say That the Plaintiff is Tenant in Common with another But cannot be given in Evidence upon Not Guilty as it may where one Tenant in Common brings Trespass against the other Peters versus Opie THe Case was moved again and Hale held clearly that the Promise being pro labore tho' there was also a Counter-Promise did carry in it a Condition precedent viz. That the work should be done first And he said that in Cases tried before him where the Declaration was upon Reciprocal Promises if it appeared upon the Evidence that the Intention was that the Plaintiffs part was to be performed before the Defendants he directed against the Plaintiff and would not have the Defendant driven to his Cross Action Twisden strongly to the contrary Pro labore says he is no more than would have been implied if those Words had been omitted then 't is within the Case of Reciprocal Promises The Case cited in Ughtred's Case 7 Co. A. Covenants to B. to serve him in the Wars B. Covenants to pay him so much for it an Action lies for the Money without averment of the Service done because of the mutual Remedy Hale was now of Opinion that the Plaintiffs saying parat ' fuit obtulit to do the Work tho' he did not say and the other refused yet it was a sufficeint Averment after a Verdict The Case of Vivian and Shipping 3 Cro. 384. in an Assumpsit upon a Promise to perform an Award the Plaintiff said licet He had performed all on his part c. which tho' no good Averment in Form yet held it aided by the Verdict Wherefore tho' they could not agree in the other matter yet Judgment was given for the Plaintiff Ante. King versus Melling IN an Ejectment the Case was thus found in a Special Verdict John Melling was seised in Fee and had Issue Barnard and John and by his Will in Writing devised to Barnard for and during his Natural life and after his decease to such Issue as he should have of the Body of his second Wife his first then being alive and if no such Issue hapned then to John Melling provided that Barnard might make a Joynture to his Wife which she should enjoy for her Life The Devisor dies Barnard suffers a Recovery to the use of himself in Fee and after Covenanted to stand seised to the use of his Wife for her Joynture for Life and died without Issue by any second Wife The Question was Whether the Wife had a good Estate or that J. Melling in Remainder had the Right It was Argued for John Melling First That Barnard Melling had only an Estate for Life by this Devise Indeed if it had been to him and his Issue which he should have by the second Wife that would have been an Entail but here 't is expresly given to him for his Life The Case of Wiat Wield 8 Co. 78. b. is full to this A Devise to a man and his Children is an Estate Tail if he hath none at the time But if the Devise were to a man for his Life and after his Decease to his Children there whether he had Children or no at the time they take by way of Remainder either contingent or vested So Archer's Case 1 Co. 1 Rolls 837. A Devise to his Son for Life the Remainder to the Sons of his Body lawfully begotten the Son takes only an Estate for Life because so expresly limited Then the Recovery destroys this Contingent Remainder and so also the power of appointing a Joynture to his Wife For 't is not a bare Collateral Power but annexed to his Estate and therefore extinguishes in the Conveyance of it But admitting it were still in him yet he did not well execute it which should have been in such manner as it might have taken effect by the Will and not to arise upon a Covenant to stand seised On the other side it was Argued that it was an Estate Tail in Barnard Melling and no Remainder contingent to the Issue For there a Remainder is said to be contingent where the first Estate may fail before 't is ascertained whether the Contingent will happen or no here if it be an Entail Barnard Melling hath it for his Life and the Issue had nothing until after his decease So 't is but an Expressio eorum quae tacite insunt Again The Power remains notwithstanding the Recovery for 't is collateral to the Estate If Executors have Authority to make a Feoffment for the payment of the Testator's Debts if they should first make a Feoffment to another purpose this would not determine their Power but they might afterwards execute it in performance of the Will 1 Co. in Albany's Case Hale It seems very strong upon Weild's Case that Barnard Melling hath but an Estate for Life if it were devised to him and after his decease to his Issue I should think that to be an Estate Tail but here the express Words are for his Life A Devise to one for his Life and after his decease to his Heir that hath been held a Fee for Heir is nomen Collectivum But Archer's Case 1 Co. is a Devise to A. for his Life and after to his Heir and the Heirs of that Heir there because the words of limitation were put to the Heir therefore Heirs was taken to be but designatio personae and Resolved he should take by Purchase Vid. Anderson 110. Construction must be according to the express words of the Will A Devise to Two equally to be divided between them and to the Survivor of them makes a Joyntenancy upon the express import of the last Words Twisden A Devise to one for Life in perpetuity makes but an Estate for Life only 15 H. 7. Hale 'T is considerable also that he adds a Power to make a Joynture which would have been useless if he had intended him in an Estate Tail And this Power is in the nature of an Emolument annexed to his Estate which seems to be destroyed by the Recovery neither hath he well executed his Power for after the Recovery he became seised in Fee so the Covenant to stand seised may work upon that Estate and so shall not be taken in pursuance of his Authority which possibly it might have been if he had but an Estate for Life for without reference to that it would have been ineffectual quando non valet quod ago ut ago valeat quantum valere potest And this is agreeable to the Learning in Sir Edward Clere's Case in the 6 Co. The Court seemed pretty clear in these Points but because it was upon the first Argument they gave leave to the parties to speak to it again if they thought fit Et Adjornatur Post Goffe's Case A Trial at Bar was had upon an Indictment
that time this made an Estate Tail But if it had béen and after their decease to their Children then the Children should take by Purchase tho' born after 'T is true that case is variously reported in the Books but I adhere to my Lord Coke presuming that being brought before all the Judges in the Argument of VVilds Case it was a true Report As for the second Point 't is plain that the power is extinguished for by the Recovery the Estate for Life to which it was annexed in privity is gone and forfeited so that 't is not necessary to dispute the third Point whether well executed or no But upon the whole I agree with my Brother Rainsford that the Plaintiff ought to have Judgment Hale I differ from my two Brothers and tho' I was of their Opinion at the finding of the Special Verdict yet upon very great Consideration of the Case I am of Opinion for the Defendant I shall proceed in a different method from my Brothers and begin with that Point which they made last and I agree with them admitting that Bernard had but an Estate for Life that the power was destroyed also here the Recovery does not only bar the Estate but all powers annexed to it for the recompence in value is of such strong Consideration that it serves as well for Rents Possibilities c. going out of and depending upon the Land as for the Land it self So Fines and Feoffments do ransack the whole Estate and pass or extinguish c. all Rights Conditions Powers c. belonging to the Land as well as the Land it self Secondly I agree with my Brother Rainsford that if Bernard had but an Estate for Life by the Devise the power was not well executed Where Tenant for Life has a power to make Leases 't is not always necessary to recite his power when he makes a Lease but if he makes a Lease which will not have an effectual continuance if it be directed out of his interest there it shall be as made by virtue of his power and so it was resolved in one Roger's Case in which I was Counsel Again Tho' it be here by Covenant to stand seized an improper way to execute his power yet it might be construed an Execution of it Mich. 51. In this Court Stapleton's Case where a Devise was to A. for Life Remainder to B. for Life Remainder to C. in Fee with power to B. to make his Wife a Joynture B. covenanted to stand seized for the Joynture of his Wife reciting his power tho' this could not make a legal Joynture yet it was resolved to enure by virtue of his power quando non valet quod ago ut ago valeat quantum valere potest But in this Case Bernard has got a new Fee which tho' it be defeasible by him in Remainder yet the Covenant to stand seized shall enure thereupon and the use shall arise out of the Fee Thirdly I was at the first opening of the Case of Opinion that Bernard had but an Estate for Life but upon deep Examination of the Will and of the Authority and Considerations of the Consequences of the Case I hold it to be an Estate Tail And first to ease that Point of all difficulties if cannot be denied but a Devise to a Man and the Heirs of his Body by a second Wife makes an Estate Tail executed tho' the Devisee had a Wife at the time As the Case often cited Land given to a Married Man and a Married Woman and the Heirs of their Bodies We are here in case of the Creation of an Estate-Tail where intention has some influence voluntas Donatoris c. and may help words which are not exactly according to legal form 39 Ass 20. Land given to a Man and his Wife haeredi de corpore uni haeredi tantum this judged an Entail Again we are in case of an Estate Tail to be created by a Will and the intention of the Testator is the Law to expound the Testament therefore a Devise to a Man and his Heirs Males or a Devise to a Man and if he dies without Issue c. are always construed to make an Entail It must be admitted that if the Devise were to B. and the Issue of his Body having no Issue at that time it would be an Estate Tail for the Law will carry over the word Issue not only to his immediate Issue but to all that shall descend from him I agree it would be otherwise if there were Issue at the time Tayler and Sayer 41 Eliz. rot 541. a Devise to his Wife for Life 1 Cro. 742. Remainder to his Issue having two Children it was held the Remainder was void being to the Issue in the singular number for incertainy which should take But that was a little too rank for Issue is nomen collectivum Again I agree if a Devise be made to a man and after his death to his Issue or Children having Issue at that time they take by way of Remainder And that was the only Point adjudged in Wild's Case and there also against the Opinion of Popham and Gawdy This way being made I come to the Case it self and shall briefly give my Reasons why I hold Bernard has an Estate Tail First Because the word Issue is nomen collectivum and takes in the whole Generation ex vi termini and so the Case is stronger than if it were Children And where 't is said to the Issue that he shall have of the Body of the second Wife that is all that shall come of the second Wife For so 't is understood in common Parlance Secondly In all Acts of Parliament Exitus is as comprehensive as Heirs of the Body In Westm 2. de donis Issue is made a term of equivalence to Heirs of the Body for where it speaks of the Alienation of the Donee 't is said quo minus ad exitum discenderet So in 34 H. 8. of Entails setled by the Crown 'T is true in Conveyances c. the wisdom of the Law has appropriated the word Heirs as a Term of Art In Clerke's Case A Lease was made to commence after the death of his Son without Issue the Son had a Son and died and then that Son died without Issue It was Resolved both in the Kings Bench and the Exchequer that the Lease should commence for Issue being nomen collectivum whenever the Issue of the Son failed the term of Commencement did happen But now to see the difference Tyler's Case Mich. 34 Eliz. B.R. He had Issue A. B. C. and D. and Devised to his Wife for Life and after her death to B. his Son in Tail and if he dies without Issue then to his Children A. had Issue a Son and died and B. died without Issue Resolved that the Son of A. should not take as one of the Children of the Testator Which Case I cite to shew the odds between the word Issue and the
word Children My second Reason is from the manner of the Limitation which is to his Issue and of his Body lawfully begotten upon the second Wife Phrases agreeable to an Estate Tail and the meaning of a Testator is to be spelled out by little Hints It is admitted in Wild's Case in the 6 Co. 17. that if the Devise had been to the Children of their Bodies it would have been an Entail Thirdly It appears by the Devise that the Testator knew there could be no Children at that time and shall not be supposed to intend a contingent Remainder Fourthly It appears that the Testator did not intend to prefer the Children of the first Wife of Bernard but did the Children of the second and therefore cannot be thought to mean that John the younger Brother of Bernard should take before failure of the Issue which Bernard should have by his second Wife And to this purpose is Spalding's Case 3 Cro. 185. A Devise to his eldest Son and the Heirs of his Body after the death of his Wife and if he died living the Wife then to his Son N. And devised other Lands to another Son and the Heirs of his Body and if he died without Issue then to remain c. The first Son died living the Wife It was strongly urged that his Estate should cease for being said If he died living the Wife this was a Corrective of what went before But 't was Ruled by all the Court that it was an absolute Estate Tail in the first Son as if the words had been If he died without Issue living the Wife for he could not be thought to intend to prefer a younger Son before the Issue of his eldest Fifthly The words are further and for want of such Issue then to John which words in a Will do often make an Estate Tail by Implication As 4 Jac. Robinson's Case A Devise to A. for Life and if he died without Issue then to remain A. took an Entail So Burley's Case 43 Eliz. A Devise to A. for Life Remainder to the next Heir Male and for default of such Heir Male then to remain Adjudged an Estate Tail 'T is true Dyer 171. is where Lands were Devised to a man and the Heirs Males of his Body and if he died without Issue c. these last words did not make a Tail General to the Devisee For an Implication of an Estate of Inheritance shall never ride over an express limitation of an Inheritance before being 't is said here for want of such Issue the Land should remain 't is plainly meant that it should not before the Issue failed and then the Issue must have it so long for none else can and so 't is an Estate Tail I come now to Authorities 6 Eliz. Anderson num 86. Moor pl. 397. A Devise to his Son for Life and after his decease to the Men Children of his Body said to be an Estate Tail and so cited by Coke in that Book and so contrary to his Report of it in Wild's Case Bendloes num 124. But that Case is not so strong as this for Children is not so operative a word as Issue Rolls 839. A Devise to his eldest Son for Life non aliter for so were the words tho' not printed in the Book and after his decease to the Sons of his Body it was but an Estate for Life by reason of the words Non aliter Hill 13 Car. 2. Rot. 121. Wedgward's Case A Devise to his Son Thomas for Life and after his decease if he died without Issue living at his death then to the Daughter c. it was held to be an Estate for Life But were it an Estate Tail or no it was not necessary to be Resolved the Case depending upon the destruction or continuance of a Contingent Remainder which would have been gone had the Devise made an Estate Tail again there being an express Devise for Life they would not raise a larger Estate by Implication Again Wild's Case where Lands were Devised to A. for Life Remainder to B. and the Heirs of his Body Remainder to Wild and his Wife and after their decease to their Children And the Court of Kings-Bench were at first divided Indeed it was afterwards adjudged an Estate for Life to Wild and his Wife First Because having limited a Remainder in Tail to B. by express and the usual words if he had meant the same Estate in the second Remainder 't is like he would have used the same words Secondly It was not after their decease to the Children of their Bodies for then there would be an Eye of an Estate Tail Thirdly The main Reason was because there were Children at the time of the Devise and that was the only Reason the Resolution went upon in the Exchequer Chamber And tho' it be said in the latter end of the Case That if there were no Children at that time every Child born after might take by Remainder 't is not said positively that they should take And it seems to be in opposition to their taking presently but however that be it comes not to this Case For tho' the word Children may be made nomen collectivum the word Issue is nomen collectivum of it self Hill 42. and 43 Eliz. Bifield's Case A Devise to A. and if he dies not having a Son then to remain to the Heirs of the Testator Son was there taken to be used as nomen collectivum and held an Entail I come now to answer Objections First 'T is objected that in this Case the Limitation is expresly for Life and in that respect stronger than Wild's Case And this is the great difficulty But I Answer That tho' these words do weigh the Intention that way yet they are ballanced by an apparent Intention that weighs as much on the other side which is That as long as Bernard should have Children that the Land should never go over to John for there was as much reason to provide for the Issue of the Issue as the first Issue Again A Tenant in Tail has to many purposes but an Estate for Life Again 'T is possible that he did intend him but an Estate for Life and 't is by consequence and operation of Law only that it becomes an Estate Tail 1651. Hansy and Lowther The Case was A Copyholder surrendred to the use of his Will and Devised to his first Son for Life and after his decease to the Heir Male of his Body c. This was Ruled to be an Estate Tail and this differs from Archer's Case in the 1st of Co. for that the Devise there was for Life and after to the Heir Male and the Heirs of the Body of that Heir Male There the words of Limitation being grafted upon the word Heir it shews that the word Heir was used as Designatio personae and not for Limitation of the Estate So is the Case of Clerk and Day 1 Cro. 313. Another Objection was That there being a Power appointed
Trover inter al' de uno Instrumento ferreo Anglicè an Iron Range After Verdict for the Plaintiff it was moved in Arrest of Judgment that Instrumentum ferreum was too uncertain and that a Range was the same with a Grate for which Crates was a proper Latin word Sed non allocatur For Crates is such a Grate as is before a Prison But a Fire Range was not in use in the Romans time and therefore Instrumentum ferreum is well enough with the Anglicè Twisden said Trover de septem libris has been held good without saying what they were Blackman's Case IT was assigned for Error that the Venire was to Summon probos legales homines instead of liberos and so a material Variance and alledged that many Judgments had been Reversed for it But the Court here being informed that the Presidents were generally probos instead of liberos would not allow the Exception The King versus Armstrong Harrison al' c. THey and others were Indicted for Conspiring to Charge one with the Keeping of a Bastard Child and thereby also to bring him to Disgrace After Verdict for the King it was moved in Arrest of Judgment that the bare Conspiring without Executing of it by some Overt act was not subject to Indictment according to the Poulterers Case in the 9 Co. And it doth not appear that he was actually Charged with the Keeping of a Child nay 't is alledged 't was but a pretended Child neither was he by Warrant brought before a Justice of Peace upon such an account but only that they went and affirmed it to the party himself intending to obtain Money from him that it might be no further disclosed Sed non allocatur For there was as much Overt act as the nature and design of this Conspiracy did admit in regard there was no Child really but only a Contrivance to Defame the Person and Cheat him of his Money which was a Crime of a very heinous nature Then it was alledged That this was tryed at the Old-Baily commonly called Justice-Hall in London and the Jury came de Warda de Faringdon extra London which appeared to be out of the Iurisdiction Sed non allocatur For the Name of the Ward is Faringdon extra to distinguish it from Faringdon infra but both are known to be in London Whereupon Judgment was Entred up against them and Armstrong which appeared to be the principal Offender was Fined 50 l and the other 30 l Burrough's Case HE and others were Indicted for that they being Church-wardens Overseers of the Poor and a Constable did contemptuously and voluntarily neglect to Execute diversa Praecepta Watranta directed to them by the Bayliffs of Ipswich being Justices of the Peace under their Hands and Seals c. It was moved to quash it for that the nature and tenour of the Warrants were not expressed in the Indictment For unless the parties know particularly what they are charged with they cannot tell how to make their Defence And for that Reason it was quashed by the Court. Note The Court never gives Costs for not Executing of a Writ of Enquiry of Damages tho' Notice be given Anonymus AN Indictment of Forcible Entry into certain Lands in the possession of J.S. was quashed for not shewing what Estate J.S. had and tho' the word Disseisivit were in the Court held that tho' that might be taken to imply a Freehold yet it was not sufficient Vid. Mo. 481. And another was quashed because it was said possessed pro termino But the Court held that if it had been pro termino annorum tho' not said for how many years it had been well Note A Bayliff caught one by the Hand whom he had a Warrant to Arrest as he held it out of a Window And the Court said that this was such a Taking of him that the Bayliff might justifie the breaking open of the House to Carry him away Kent versus Harpool AN Ejectment The Case came hither by a Writ of Error out of the Kings-Bench in Ireland and divers Points were in it which concerned the Act for Settlement of Lands in Ireland But the Case was as to the great Point at Common Law to this effect Father Tenant for Life Remainder to the Son for Life Remainder to first Son of that Son who was not born Remainder to the Heirs of the Body of the Father the Father died before the first Son was born and Whether the Descent of the Entail to the Son did prevent the Contingent Remainder was the Question It was Argued that it did not because the Inheritance came to the Son by Act in Law And the Opinion in Cordal's Case in the 1 Cro. 315. was cited the great Reason in Chudley's Case and other Cases wherein Contingent Remainders have been held to be destroyed was for the preventing of Perpetuities which would have been let in if Contingent Remainders had been preserved whatever Act had been done by those which had the Actual Estate But there is no such necessity of making the life Construction upon Acts in Law If Lessee for years makes the Lessor Executor the Term is not drowned But if the Executor that hath a Lease purchases the Inheritance the Term is gone because it is his own act but in the other Case the Law shall not work that which must be construed a Devastavit In Lewis Bowles's Case in the 11 Co. and Co. Litt. where there is an Estate for Life Remainder to the first Son Remainder in Fee to the Tenant for Life the Estates at first close and open again upon the Birth of the first Son which should take the Remainder And so it may be here But the Court seemed to be of Opinion that the Contingent Remainder was destroyed by the Descent of the Estate Tail And Rainsford Chief Justice relyed upon Wood and Ingersol's Case in the 2 Cro. 260. where a Devise was to the first Son for Life Remainder to the Son which should survive and there three Judges against one held that the descent of the Fee upon the first Son prevented the Contingent Remainder to the Survivor Et Adjornatur Note In Lewis Bowle's Case the Estates were united at the first upon making of the Conveyance Smith versus Tracy IN a Prohibition the Case was One died Intestate and whether his Brother of the Half-blood should come in for Distribution upon the new Statute of 22 23 Car. 2. cap. 10. was the Question It was Argued that the Half blood should have no share for the Words are The next of Kindred to the Dead person in equal Degree which the Half-blood is not The Words likewise are Those which legally represent their Stocks and that must be intended in an Act of Parliament such as the Common Law makes to be Representatives and not the Civil Law For then it would be that the Bastard eigne should come in for Distribution For their Rule is that subsequens matrimonium facit
meant by the name of Son As to Beckford's Case the Words are full to carry all and therefore it had been impertinent to have wrote over the Will again So where a man has two Sons named John it may be well averred that he meant the younger Son for nothing in the Will is inconsistent with such meaning The Court took time to deliver their Opinions And afterwards the Chief Justice delivered the Opinion of the Court That neither the Republication nor Parol Declaration could operate as a Devise to R. c. the Grandson Pepis's Case A Mandamus to restore him to his Place of Recorder of the Town of Cambridge The Return was That they were Incorporated by the Name of Mayor Aldermen c. with a Power to chuse a Recorder Habend ' pro termino vitae aut ad voluntat ' eligentium That Mr. Pepis was Chosen Recorder ad voluntat ' eligentium and that afterwards by the Votes of the greater number of the Electors he was removed and the Lord Allington constituted a Recorder under their Common Seal c. Vpon this Return it was moved for Mr. Pepis that altho' they had alledged a Power to Chuse a Recorder at Will yet they should have shewn Cause for his Removal being a Judicial Office which the Court takes notice of and that none had such a Power but the King to remove Judges ad libitum Again A Corporation aggregate cannot determine their Will but under their Common Seal and that is not shewn here Curia Where a Recorder is at Will they may remove him at pleasure as it is in Blagrave's Case and several other Cases As to the other Point it does not appear that he was Constituted under their Common Seal perhaps then they must have determined their Will under their Common Seal but now 't is well enough my Lord Allington is Constituted under their Common Seal which Act removes the other so it was adjudged against Mr. Pepis Termino Sancti Michaelis Anno 31 Car. II. In Banco Regis A Prohibition was prayed to the Court of Admiralty upon a Suggestion that the Suit was there upon a Contract made upon the Land The Case was thus A Bargain was made upon the Land with severl Seamen to bring up a Ship from a Port in England to London for a certain Sum to them to be paid And for the Prohibiton 't was alledged that this being upon the Land and a Contract with divers joyntly for a Sum in Gross it could not be within the ordinary Rule of Mariners Wages which is permitted to be Sued for in the Court of Admiralty in favour of the Mariners because they may all joyn in that Court and not be put to the inconvenience of Suing severally as they must at Law but as this Contract is they are to sue joyntly at Common Law But the Prohibition was denied for this must be taken as Mariners Wages And therefore tho' the Contract were upon the Land yet they have Jurisdiction Besides the Party comes after Sentence and therefore in the Courts discretion whether they will then grant a Prohibition Note A Rump Act was made to enable Mariners to Sue for Wages in the Admiralty but yet the Law was taken to be so before Vid. 3 Cro. Anonymus A Prohibition was prayed to the Ecclesiastical Court where the Libel was for these words You are a Whore and Ply in Moorfields And the Suggestion was that the words were spoken in London where an Action lies for such words and for that Cause a Prohibition was granted otherwise Suits might have been in the Court Christian for such words tho' not singly for the word Whore being a common word of brabling otherwise where joyned with words which shew the intent to Defame in that kind Anonymus AN Indebitat ' Assumpsit was brought for Goods sold and delivered The Action was laid in London and a Motion was made to change the Venue upon an Affidavit that the Sale was in Kent But on the other side it was said the delivery was in London and that were the Matter consists of two parts in several Counties the Plaintiff shall have his Election to which the Court agreed Anonymus A Man Covenants with his intended Wife to give her leave to dispose of so much by her Will and then they Intermarry the Husband having given Bond to a third person for the performance of these Covenants after the death of the Wife the Husband is Sued upon the Bond for not permitting her Will to be performed And upon Oyer of the Condition it was insisted on for the Defendant that these Covenants were discharged by the Marriage and so the Bond likewise loseth its force Vid. Hob. 216. Et Adjornatur Anonymus A Motion was made to quash an Inquisition of forcible Entry it was Inquisitio capta per Juratores super Sacramentum suum coram T. S. J. N. Justiciariis c. qui dicunt super Sacramentum praed ' And it was objected That qui dicunt c. referring to the last antecedent it was that the Justices say Sed non allocatur for super Sacramentum praedict ' makes it certain Note The Caption of an Indictment may be amended the same Term it comes into Court Anonymus AN Indictment for not taking upon him and executing the Office of a Constable to which he was chosen by the Leer The question was Whether a Tenant in antient Demesne were obliged to that Office And the Court held that he was Termino Sancti Hillarij Anno 31 32 Car. II. In Banco Regis Anonymus IN Ejectment upon a Special Verdict the case was thus A Lease was made A. and B. for their Lives Remainder to the first Son of A. c. Remainder to the Heirs of A. B. conveys his part to A. The question was Whether the Contingent Remainder to the first Son were destroyed Holt argued that it was For a Contingent Remainder must have some particular Estate of Freehold to support it and by the Release of B. his Estate was gone and there became an intire Fee in A. For by whotsoever means a Joynt tenant for Life conveys his Moiety to his Companion it does not enure by Grant of the Estate but by Release as Eustace and Scawens Case 2 Cro. 696. A. and B. Joynt tenants for Life A. Levy's a Fine to B. B. dies there shall be no Occupancy of the Moiety of A. during the Life of A. Jones 55. and the Case of Lewis Bowels 11 Co. is not to be objected where an Estate for Life was made to B. and F. the Remainder to their first Son that they should have in Tail Remainder to B. and F. in Tail here tho' an Estate in Tail is executed in B. and F. until a Son Born yet after upon the Birth of the Son the Contingent Remainder shall vest and split and divide the former Estate 2 Co. 60.61 but here the Fee becomes executed by several Conveyances but there the Estate
makes a Lease for the Life of the Lessee not warranted by the Statute and dies leaving B. in Remainder his Heir B. let ts for 99 years to commence after the death of the Tenant for Life reserving Rent and then the Tenant for Life surrenders to B. upon Condition and dies B. suffers a Recovery with single Voucher and dies the Lessee for years enters the Heir of B. distrains for the Rent and the Lessee brings a Replevin and upon an Avowry and Pleadings thereupon this Case was disclosed to the Court of Common Bench and Judgment given there for the Avowant and Error thereupon brought in this Court For the Plaintiff in the Error it was Argued That the Lease being derived out of a Reversion in Fee which was Created in A. upon the Discontinuance for Life and the New Fee vanishing by the Surrender of the Tenant for Life for it was urged he was in his Remitter altho' the taking of the Surrender was his own Act that the Lease for years by consequence was become void Again It was Objected against the Common Recovery that the Tenant in Tail and a Stranger which had nothing in the Estate were made Tenants to the Praecipe and therefore no good Recovery Again In case B. were not remitted after acceptance of the Surrender then he was Seised by force of the Tail and so no good Recovery being with single Voucher On the other side it was Argued to be no Remitter because the acceptance of the Surrender was his own Act and the Entry was taken away But admitting it were a Remitter because by the Surrender the Estate for Life which was the Discontinuance was gone and it was no more than a Discontinuance for Life For if Tenant in Tail letts for Life and after grants the Reversion in Fee if the Lessee for Life dies after the Death of the Tenant in Tail so that the Estate was not executed in the Grantee during the Life of the Tenant in Tail the Heir shall immediately Enter upon the Grantee of the Reversion Co. Litt. It seems also to be stronger against the Remitter in this case because 't is not Absolute but only Conditional However the Lease may be good by Estoppel for it appears to have been by Indenture and if the Lessor cannot avoid the Lease the Lessee shall without question be subject to the Rent But it was Objected against the Estoppel that here an Interest passes and the Lease was good for a time As if the Lessee for Ten years makes a Lease for Twenty years and afterwards purchaseth the Reversion it shall bind him for no more than Ten. To which Pemberton Chief Justice said The difference is where the party that makes the Estate has a legal Estate and where a Defeasible Estate only for in the latter a Lease may work by Estoppel tho' an Interest passed so long as the Estate out of which the Lease was derived remained undefeated As to the Recovery it was held clearly good altho' a Stranger that had nothing in the Land was made Tenant to the Praecipe with the Tenant in Tail for the Recompence in Value shall go to him that lost the Estate and being a Common Assurance 't is to be favourably Expounded Et Adjornatur Termino Sancti Hillarij Anno 33 34 Car. II. In Banco Regis Anonymus IN Error upon a Judgment in Ejectione Firmae in the Common Pleas where the Case was That the Bishop of London was seized injure Episcopatus of a Mannor of which the Lands in question were held and time out of mind were demised and demisable by Copy of Court Roll for Life in Possession and Reversion and J.S. being Copyholder for Life in Reversion after an Estate for Life in Ann Pitt and J.N. being seized of the Mannor by Disseisin J.S. at a Court holden for the Mannor in the name of J. N. surrendred into the Hands of the said J.N. the Disseisor Lord to the used of the said Lord. Afterwards the Bishop of London entred and avoided the Disseisin Ann Pitt died and an Ejectment was brought by J. S. And it was adjudged in the Common Bench that he had a good Title and now upon a Writ of Error in this Court the Matter in Law was insisted upon by Pollexfen for the Plaintiff in the Writ of Error That this Surrender to the Disseisor Lord to the Lords own use was good for all the Books agree a Copyholder may Surrender to a Disseisor of the Mannor to the use of a Stranger and why not to the Lords own use As if Lessee for years be ousted and he in Reversion disseised and the Lessee Releases to the Disseisor this extinguishes his Term. Here is a compleat Disseisin of the Mannor by Attornment of the Freeholders without which the Services cannot be gained and the Copyholders comeing to the Disseisors Court and by making Surrenders c. owning him for their Lords tantamounts Serjeant Maynard contra And he insisted that this Surrender was not good for the Disseisor had no Estate in this Land capable of a Surrender for the Copyholder for Life continuing in Possession and never having been ousted there could be no Disssesin of that And he endeavoured to distinguish it from a Surrender to a Disseisor Lord to the use of another for in such Surrenders the Lord is only an Instrument and does but as it were assent and until admittance the Estate is in the Surrenderer And he resembled it to the Attornment of a Tenant when è converso a Seigniory is granted and he put Cases upon Surrenders of Leases that they must be to one that hath the immediate Reversion as an under Lessee for part of the Term cannot Surrender to the first Lessor and he cited a Case of Lessee for years Remainder for Life Remainder in Fee to a Stranger he that had the Fee enfeoffed the Tenant for years by Deed and made Livery and the Conveyance held void for it could not work by Livery to the Tenant for years who was in Possession before and a Surrender it could not be because of the intermediate Estate for Life and it could not work as a Grant for want of Attornment He said it had been commonly received that a Common Recovery cannot be suffered where the Tail is expectant upon an Estate for Life not made Tenant to the Praecipe which he said was true in a Writ of Entry in the Post which are commonly used And the true reason is because such Writ supposes a Disseisin which cannot be when there is a Tenant for Life in Possession But as he said a Common Recovery in such case in a Writ of Right would be good Pemberton Chief Justice said his reason of Desseisin would overthrow Surrenders to the use of a Stranger for if the Possession of the Copyholder would preserve it from a Disseisin then was it pro tempore lopped off or severed from the Mannor and then no Surrender could be at all Et Adjornatur Berry
upon the Warranty as well as the other tho' the Declaration saith knowing them to be naught yet the knowledge need not to be proved in Evidence Debt upon a Bond and a mutuatus may be joyned in one Action yet there must be several Pleas for Nil debet which is proper to the one will not serve in the Action upon the Bond. Sed Adjornatur Termino Sancti Hillarij Anno 34 35 Car. II. In Banco Regis Anonymus A Quo Warranto was brought against divers persons of the City of Worcester why they claimed to be Aldermen c. of the said Corporation The Cause came to be tried at the Bar and a Challenge was made to the Jury in behalf of the Defendants for that the Jury men were not Freeholders The Court said that for Juries within Corporate Towns it hath hath been held that the Statutes that have been made requiring that Jurymen should have so much Freehold do not extend to such places for if so there might be a failer of Justice for want of such Jurymen so qualified but then to maintain the Challenge it was said by the Common Law Jurymen were to be Freeholders But the Court overruled the Challenge but at the importunity of the Counsel they allowed a Bill of Exceptions and so a Verdict passed against the Defendants and afterwards it was moved in Arrest of Judgment upon the Point But the Court would not admit the Matter to be Debated before them tho' divers Presidents of like nature were offered because they said they had declared their Opinions before and the Redress might be upon a Writ of Error Termino Sanctae Trinitatis Anno 35 Car. II. In Banco Regis Anonymus A Motion for a Prohibition to a Suit in the Ecclesiastical Court for a Churchwarden's Rate suggesting that they had pleaded That it was not made with the Consent of the Parishioners and that the Plea was refused The Court said That the Churchwardens if the Parish were Summoned and refused to meet or make a Rate might make one alone for the Repairs of the Church if needful because that if the Repairs were neglected the Churchwardens were to be Cited and not the Parishioners and a Day was given to shew Cause why there should not go to a Prohibition Termino Sancti Michaelis Anno 35 Car. II. In Banco Regis Gamage's Case ERror out of the Court of the Grand Sessions where in an Ejectment the Case was upon Special Verdict upon the Will of one Gamage who devised his Lands in A. to his Wife for Life Item his Lands in B. to his Wife for Life and also his Lands which he purchased of C. to his Wife for Life and after the decease of his Wife he gave the said Lands to one of his Sons and his Heirs And the Question was Whether the Son should have all the Lands devised to the Wife or only those last mentioned And it was Adjudged in the Grand Sessions that all should pass And upon Error brought it was Argued that they were Devises to the Wife in distinct and separate Sentences and therefore his said Lands should be referred only to the last On the other side it was said that the word Said should not be referred to the last Antecedent but to all If a man conveys Land to A. for Life Remainder to B. in Tail Remainder to C. in forma praedict ' the Gift to C. is void 1 Inst 20. b. It is agreed if he said All the said Lands to his Son and his heirs it would have extended to the whole This is the same because Indefinitum equipollet universali Et Adjornatur Herring versus Brown IN an Ejectment upon a Special Verdict the Case was Tenant for Life with several Remainders over with a Power of Revocation Levied a Fine and then by a Deed found to be Sealed ten Days after declared the Vses of the Fine which Deed had the Circumstances required by the Power The Question in the Case was Whether the Fine had extinguished the Power It was Argued that it had not because the Deed and Fine shall be but one Conveyance and the use of a Fine or Recovery may be declared by a subsequent Deed in the 9 Co. Downam's Case And a Case was Cited which was in this Court in my Lord Hale's time between Garrett and Wilson where Tenant for Life with Remainders over had a Power of Revocation and by a Deed under his Hand and Seal Covenanted to levy a Fine and declared it should be to certain Vses and afterwards the Fine was Levied accordingly This was held to be a good execution of the Power and limitation of the new Vses and the Deed and Fine taken as one On the other side it was Argued That the Deed was but an Evidence to what Vses the Fine was intended and the Power was absolutely revoked by the Fine Suppose he in Remainder had Entred for the Forfeiture before this Deed should the Defendant have defeated his Right Et Adjornatur Postea Hodson versus Cooke IN an Action upon the Case for commencing of an Action against him in an Inferiour Court where the Cause of Action did arise out of the Jurisdiction After a Verdict for the Plaintiff upon Not Guilty it was moved in Arrest of Judgment That it was not set forth that the Defendant did know that the Place where the Action arose was out of the Jurisdiction which it would be hard to put the Plaintiff to take notice of On the other side it was said that the party ought to have a Recompence for the Inconvenience he is put to by being put to Bail perhaps in a Case where Bail is not required above and such like Disadvantages which are not in a Suit brought here and the Plaintiff ought at his peril to take notice However to help by the Verdict And of that Opinion were Jeffreys Lord Chief Justice Holloway and Walcot but Withens contra The Court said that it could not be assigned for Error in Fact that the Cause arose out of the Jurisdiction because that is contrary to the Allegation of the Record neither is the Officer punishable that executes Process in such Action but an Action lies against the party And so it was said to be resolved in a Case between Cowper and Cowper Pasch 18 Car. 2. in Scac. when my Lord Chief Baron Hale sate there Anonymus AN Indictment of Perjury for Swearing before a Justice of the Peace that J. S. was present at a Conventicle or Meeting for Religious Worship c. It was moved to quash it because it did not appear to be a Conventicle viz. That there was above the number of Five and so the Justice of the Peace had no power to take an Oath concerning it and then it could be no Perjury To which the Lord Chief Justice said That Conventicles were unlawful by the Common Law and the Justices may punish Unlawful Assemblies And he seemed to be of Opinion that a man might be
because the Intent of the parties appears that it should be so There 's no great difference between the Construction of a Deed of Uses and a Will 13 H. 7. The Wife takes an Estate for Life by Implication where the Land is devised to the eldest Son after her decease Manning and Andrew's Case in 1 Leon. 259. The Reason of these Cases is the fulfilling of the Intention of the Parties and here this Limitation cannot be made good by way of a Future Use nor by any other way but only by creating of an Estate for Life in Michael the Father by Implication and this is according to the nature of a Covenant to stand seiz'd For the Use is not to pass out of the Covenantor till the proper time for the subsequent Estate to commence As to my Lord Paget's Case 't was his Intention to have the Use during his Life And my Lord Coke was certainly very well satisfied with the Resolution in Fenwick and Mitford's Case when he wrote his Institutes for he Argued before to the contrary as appears by the Report of that Case in Moor. Rainsford Justice to the same Intent If no Use rises immediately to Ralph yet if a Use rises by the Deed so that he has the Land any way be it by discent from his Father 't is within the Conclusion of the Verdict By the scope of the Conveyance it appears that it was intended that Robert should never have his Land till Twelve hundred Pound was paid for the provision of younger Children so that if Robert should have it it would be against the Intention of Michael There are two Reasons and Grounds in Law by which we may make this Deed agree with the Intention of the Parties First Because it is in the Case of an Estate Tail ubi voluntas donatoris observari debet Secondly It is in a Conveyance setled by way of Use and in Cases of Uses the Intention of the parties ought to be pursued And this is in Case of a Use that rises by Covenant to stand seiz'd which makes the Case the stronger And I conceive this is not a void Limitation but such an one as gives an Estate to Ralph In speaking to which I shall observe what my Lord Coke in the 1 Inst 23. says viz. That so much of the Use as the Owner of the Land does not dispose of remains in him c. and so in Cownden and Clark's Case in Hob. 30. And this is the Reason of Bingham's Case 1 Co. 91. Now here when Michael Covenanted to stand seiz'd to the Vse of his Heirs Male on the Body of his second Wife begotten I conceive he shall retain the Land as parcel of his ancient Vse during his Life for non est Haeres viventis according to Archer's Case 1 Co. And that Michael shall retain an Estate for Life is prov'd by my Lord Paget's Case 1 Co. 154. Dyer 310. N. 79. 1 Co. Chudleigh's Case 129. 2 Rolls 788. 21 H. 7. 18. From my Lord Paget's Case upon which I shall rely and the other Cases it appears that were there 's a Limitation to one after the death of another the Covenantor shall retain the Land during the Life of the other and here in our Case this Estate not taking effect till after the Death of Michael he shall retain the Estate and shall be Tenant for Life of the old Vse Now the Question is Whether Ralph shall take by Discent or Purchase And I conceive this Estate for Life with the Remainder in Tail makes but one Estate Tail in Michael and that he becomes Tenant in Tail and so Ralph shall take as Heir in Tail I shall not trouble my self whether Ralph may take here as a Purchaser because in Cownden and Clark's Case in Hob. it is Resolved that he cannot take as Heir Male of the Body by Purchase because all the words are not verified in him for he is not Heir I shall rely upon the First Point That here is an Estate Tail executed in Michael For when an Estate for Life is in the Auncestor by way of Retainer and an Estate is afterwards limited to his Heirs this is within the Rule put in Shelley's Case in 1 Co. where the Auncestor takes an Estate of Freehold and by the same Conveyance an Estate is limited to his Heirs Mediately or Immediately they are Words of Limitation and not of Purchase because the Heir is part of his Father Our Case is stronger that Fenwick and Mitfords Case It s true the same Reason for that Case is not given by Anderson and More which is given by my Lord Coke More 437. There the Reason is because the Limitation to the right Heirs is merely void here Michael hath an Estate in Tail of the ancient Use therefore 't is not necessary for the Law to create an Estate for Life Obj. That this cannot be an Estate Tail executed in Michael because the Estate for Life is not by the same Limitation but by Construction of Law But my Lord Coke says in Fenwick and Mitfords Case 1 Inst 22. b. that there is no difference where the Estate is created by Law and where by the Deed. 1 Anderson 259. and the Law retaining an Estate in Michael for Life our Case is the same as if the Estate had been limited to him with the Remainder to his Heirs Male begotten on his second Wife which would be an Estate Tail executed in Michael and would have discended to Ralph Twisden Justice for the Plaintiff I hold there 's no Use raised to Ralph by this Deed. We are here in the construction of a Deed and not of a Will It may be an Estate should be raised in such a case by a Will altho' my Lord Hobart is of a contrary Opinion I agree the Case of Hodgkinson and Wood Cro. Car. 23. but it cannot be argued from thence that it shall be so in a Deed for a Devise is not to take effect till after the Death of the Devisor and then 't is apparent that he is Heir Male of his Body It hath been agreed that Heirs Male of the Body are words of purchase It is plain that Ralph cannot take as Special Heir unless by Purchase and that he cannot do because he who shall take by virtue of such a Limitation ought to be Heir as well as Issue Male and Ralph here cannot take by vertue of the Statute de Donis Conditionalibis because none can take as Special Heir but where his Ancestor took before and therefore this Limitation is utterly void To make this Limitation good divers ways have been urged First That this Deed has an operation by way of returning of the Use and it has been compared to my Lord Pagets Case which differs from it here cannot be any part of the old Use in Michael for if he hath an Estate for Life it ought to be a new Use It cannot be a returning Use for the Limitation to the Heirs Male of the Body
of Jane the second Wife is void and it cannot be returning where the Use is not setled in any Person I agree my Lord Pagets Case because there the Estate was vested in William Paget and the other Use returned by operation of Law and the Estate setled could not be divested but here the Limitation to the Heirs Males being void the ancient Use remained yet in Michael for nothing was out of him he having limited a thing which cannot be And as to a returning Use tho' all be done in an instant yet there is a priority of time in the Eye of the Law for it ought to vest first in him in Remainder and then Return but here nothing vests in the Remainder Secondly It hath béen urged That it shall be made good by Implication of Law and so shall amount to a Covenant to stand seized to the Used of the Covenantor for Life c. and the rather as it has béen said by Wild because Uses are guided by Equity But I answer we are here in case of a Deed where an Estate shall not be raised by Implication as it shall by a Will Cro. Car. Seagood ad Hone 366. A Deed differs greatly from a Will for if a Man Surrenders Copyhold Land to two equally to be divided they are Joynt-tenants but such a Devise would have made them Tenants in Common Admit in some Case an Estate shall be raised by Implication in a Deed yet it shall not be so here for it would be to the disinheriting the Heir As to the case of 13 H. 7. I agree that a Devise to the Eldest Son after the Death of the Wife gives an Estate for Life to the Wife but otherwise it would be upon such a Devise to the Younger Son for there the Eldest Son and not the Wife should have the Estate in the mean time Cro. Jac. Horton and Horton 57. We are not herein Favorabili materiâ and therefore no construction shall be made which does not appear by the words It hath béen strongly urged that this being by way of Use which is a matter of Equity shall be favoured Admit it yet it shall be guided by the Common Law for aequitas sequitur legem There never shall be a Settlement by way of Use to make one capable who is not capable by the Common Law I do not see any difference between a Feoffment to Uses and a Covenant to stand seized for if a Feoffment be made to the use of one for Life the Use shall return which is not disposed of as well as upon a Covenant to stand seized Thirdly It has been urged if these severally cannot support this Limitation yet the intention operating with the Deed will both together make an Estate for Life in Michael But I do not see his intent here to have it for Life the intention even in a Will which is much stronger ought to be collected out of the words of the Will. Cro. Car. Spirt and Bence 368. agreed by the whole Court that words in a Will ought to have an apparent intent to disinherit an Heir and here there is not any apparent intent but rather to the contrary for of some Lands Michael Covenants to stand seised to the Use of himself for Life Remainder c. but of the Lands in question he makes a difference in the Limitation And the words of the Deed are to be considered He Covenants to stand seized to the Uses mentioned declared and limited in the Deed and if Michael shall have an Estate for Life he must have it by operation of Law There was a like case between Flavil and Ventroise in the Common Pleas in which the Court was divided but the same Point came afterwards in question in the Case of Mr. Tape of Norfolk and it was adjudged to be the ancient Use And no Case can be shewn that the Law will create an Estate in the Covenantor where the Use is not vested in any Person but the ancient Use remains in him As to the Cases cited on the other side I have answered my Lord Pagets's Case already And as to my Lord Cokes Case 1 Inst 22. b. I agree the Use returns and the Son is in by discent and so it was adjudged in Fenwick and Mitfords Case there cited But the Paraphrase he makes there I do not understand It is said there when the Limitation is made to his right Heirs and right Heirs he cannot have during his Life the Law doth create an Use in him during his Life Wherefore is this said to make the Heir in by discent No doubt without this he is in by discent and so was the Iudgment in that Case for what Reason then should there be an Estate for Life raised by the Law to be merg'd by the Fee as soon as raised And there 't is said Till the future use come in Esse I do not conceive then where it is so long as the Father lives and what he means by the Future Use I do not know for it always was in Esse and never was out of the Feoffor and this was so adjudg'd in that Case of Fenwick and Mitford and not the construction of my Lord Coke And t is strange that no other Reports should mention his construction Hale Chief Justice for the Defendant If Ralph takes either by Discent from Michael or by Purchase the one way or the other answers the Verdict and the Issue is for the Defendant I shall divide the Case into two Points 1. If he takes by Discent 2. Admitting he does not If he may take by Purchase as this Case is I shall Premise two or three things First It has been agreed if an Estate for Life be raised to Michael the Remainder being to his Heirs Male of the Body of Jane his second Wife the Estate Tail is executed in him be the Estate for Life raised by Implication or express Limitation Secondly It is plain quacunque via It be rais'd that the Estate was long'd in Michael till Ralph the Son be in a capacity to take it either by Discent or Purchase for be it part of the ancient Use or a new Use it ought to be in Michael during his Life for there is nothing to bring it out of him Thirdly In all Cases touching Uses there is a great difference between a Feoffment to Uses a Covenant to stand seized and a conveyance at the Common Law If a Man by Feoffment to uses conveys Land to the use of J.S. for Life he may remit the Use to himself and the Heirs Male of his Body by the same Deed and so alter that wich was before a Fee simple and turn it into another Estate but if A. gives Land to B. for Life Remainder to A. and the Heirs Male of his Body because a Man cannot give to himself the Remainder is void for a Man cannot convey to himself by a Conveyance at the Common Law These things being premised I conceive here is an Estate Tail in Michael First Because in this Case the
Use returns by operation of Law and executes an Estate in Michael for Life which being conjoined to the Estate limited to the Heirs Male of his Body makes an Estate Tail This Estate for Life rising by operation of Law is as strong as if it had been limitted to him for his Life and after his decease to the Heirs Male of his Body Secondly Because that a Limitation to the Heirs Male of his Body is in Construction of Law a Limitation to himself and the Heirs Male of his Body There is a great difference when he who has the Use limits it to A. for Life the Remainder to the Heirs of the Body of B. here no Estate can rise to B. because nothing moved from him but where he who has the Estate limits it to the Heirs Male of his own Body ut res valeat he shall have it for his Life Thirdly It is plainly according to the intent of the Parties the intent perfectly appears that the Issue by the second Wife should take and that Robert the eldest Son should not take till so much Money be paid therefore if we can by any means serve the intent of the parties we ought to do it as good Expositors For as my Lord Hobart says Judges in Construction of Deeds do no harm if they are astuti in serving the intent of the Parties without violating any Law Obj. Here the Use being never out of Michael he hath the ancient Use which is the Fee simple and consequently being the ancient Use and this being a new Limitation to the Heirs Male of his Body the ancient use and the new one cannot be piec'd to make an Estate Tail executed in Michael but it shall be a Contingent Use if any which ought to rise to the Heir Male of his Body and so remains the ancient Fee simple And it hath been compared to these Cases If a Man Covenants to stand seized to the Use of J.S. or of his Son after his Marriage or after the Death of J. D. these are Contingent Limitations and there is a Fee simple determinable in the Covenantor to serve the future Uses Resp 'T is true if a Man Covenants to stand seized to such Uses as that he leaves a discendible Estate in himself As if a Man Covenants to stand seized to the Use of his Son from and after his Marriage this is purely a Contingent Use because t is possible the Marriage may never take effect and nothing is fetch'd out of the Covenantor so if he Covenants to stand seized to the Use of J. S. after 40 years there is a Fee simple determinable in the Covenantor and therefore those Cases are not to be resembled to our Case where the Estate of Michael cannot continue longer than his Life And this without any wrong done to any Rule of Law may be turned to a Use for Life and therefore such construction shall be Object 2. Here is an Estate to rise by way of Use by a Deed and not by a Will which shall not be by Implication by a Deed. Resp It s a certain truth But we are not here upon raising an Estate by Implication but qualifying an Estate that is now in the Father which by this new Deed is to be qualified to be an Estate for Life to preserve the Estate Tail so that the Cases of Implication are not to the purpose Object 3. In this Case Michael shall be in of his ancient Estate in Fee simple which is in him and not of a new Estate created by Implication of Law and it hath been compared to the Devise of Land to a Mans Heir he shall not be in by the Devise but of his ancient Estate that would have descended to him Resp True But in this Case a Man may qualifie his Estate as in Gilpins Case Cro. Ca. 161. Devise to his Heir upon Condition that he shall pay his Debts in a year the Heir is a Purchasor so here is a qualification to turn the Estate of Michael into an Estate for Life ut res valeat Object 4. Michael had not an Intention to have an Estate for Life for in the Limitation of the other Lands he has limited them expressly to himself for Life and if he had intended to have had an Estate for Life in the Lands in question he would also have so expressed it Resp The intention will not controul the operation of Law his main intent was to settle the Lands upon his younger Children this the Law serves but not his secondary intentions If a Man Covenants to stand seized to the Use of himself for Life without impeachment of Wast and afterwards to the Use of the Heirs Male of his Body the Law supervenes his intention and makes him to be Tenant in Tail And in our Case there was a necessity to limit the other Lands to himself for Life because there was another Estate to intervene the Estate for Life and the Estate Tail The Reason given by my Lord Coke in Fenwick and Mitfords Case is plain enough and it appears that he was of that Opinion afterwards by the Report of Pannel and Lanes Case 13 Jac. in Rolls Rep. 1 part 238. The Case upon which I shall rely which has not been answered is my Lord Pagets Case adjudged by all the Judges of England Tho. Lord Paget Covenants in consideration of the discharge of his Funerals Payment of his Debts and Legacies out of the profits of his Land and for the advancement of his Son Brother and others of his Blood that he and his Heirs would stand seized of divers Mannors to the Use of T.F. one of the Covenantees for the Life of my Lord Paget and after his Death to the Use of C. Paget for the term of 24 years and then to the Use of W. Paget his Son in Tail with Remainders in over and afterwards the Lord Paget was aâ—â—â—nted of Treason And it was adjudged that the Lord Paget himself had an Estate for his Life for the Remainder being limited after his Death the Estate cannot pass out of him during his Life and there in Case of a Covenant to stand seized he himself hath an Estate for Life And this is not because the Estate returns as my Brother Twisden has said but because the Estate was never out of him and cannot return either from the Heir or the Covenantee otherwise where should it be during the Life of the Lord Paget who was attainted the Book is that it was never out of him but was turn'd into an Estate for Life So that now it is all one as if he had Covenanted to stand seized to the Use of his eldest Son after his Death And the question is What Estate he has during his Life It is adjudged that he has an Estate for Life for if there had been a Contingent Fee simple in the Lord Paget his Heir could never have had an Amoveas manus
Mesuages Lands and Premisses And to the intent that the Contingent Remainder by the said Will limited to the Heirs Males and Females of the Body of the said Robert Durdant might be extinguished and destroyed he the said John Higden by the appointment of the said Robert Durdant did surrender his Estate in the Premisses to the said Gideon Durdant and by the said Deed it was Covenanted That the said Robert Durdant John Higden and Gideon Durdant should levy a Fine of the Premisses which should be to the use of the said John Higden and his Heirs They find that a Fine was levied accordingly in Easter Term 15 Car. 2. They find That Robert Durdant died on the 19th of August 20 Car. 2. and that John Higden after in 20 Car. 2. upon a valuable Consideration in money enfeoffed John Burchet of the Premisses and that the said Burchet died the 1st day of October in the same year and that the Premisses from him came to the Defendant Burchet who entred into the Premisses and became seised prout lex postulat And they find That Robert Durdant as well at the time of the said Will making as at the death of the said Henry Wicks had an only Son called George Durdant who was also Godson to the Testator and that the said George Durdant died and that William Durdant Lessor of the Plaintiff was his Son and Heir and entred and made the Demise prout c. si super totam materiam c. Vpon his Special Verdict Iudgment was given in the Kings-Bench for the Plaintiff And the Court here afterwards having heard the Case thrice Argued did affirm the Iudgment And the first Point spoken to was Whether the Estate did not execute in Robert Durdant by the Statute of 27 H. 8. of Uses For if so he would be seised of an Estate tail and then Burchet would have a good Title It is clear Lands may be Devised to the use of another as in Popham 4. 'T is true a Devise implies a Consideration and will lodge the Estate in the Devisee if no Vse be limited upon it Here it is Devised to John Higden and his Heirs upon trust and confidence that he should permit and suffer c. The word Trust is proper for the Limitation of an Use and the Estate shall Execute unless it be first limited to the use of a man and his Heirs in Trust for another there the Intention is that it should be only a Trust and here Robert Durdant is restrained only from doing waste which shews that he intended he should take an Estate or else he could not commit waste But Lands may be Devised to an Use tho' the Statute of Wills is since the Statute of Uses Mo. 107. 1 Cro. 343. The Court over-ruled this Point and Resolved it to be only a Trust in Robert Durdant for the words are That Higden should permit him to take the profits which shews that the Estate was to remain in Higden And for the restraint of waste it was proper for Higden was to permit Robert Durdant to have the possession but the Testator would not have him to commit waste or spoil The second and principal Point was Whether the Remainder to the Heirs of Robert Durdant now living did vest in George Durdant or was a Contingent Remainder It was much urged That one could not take in the Life of his Ancestor by the name of Heir for nemo est haeres viventis in the 1 Co. Archer's Case A Devise to Robert Remainder to the next heir Male of Robert and to the heirs Males of the Body of that heir Male this is Resolved to be a Contingent Remainder during the Life of Robert and it was said in that Case that the next heir Male is as much a designation of a person as an Heir now living He that will take by purchase by the name of Heir must be a compleat Heir to all intents Co. Littl. 24. b. 2 Leon 70. Chaloner and Bowyer 's Case upon a Devise But it was Resolved that this was a Remainder vested in George Durdant for the Remainder being limited to the Heirs of the Body of Robert Durdant now living and George being found to be then the only Son it was a sufficient designation of the person and as much as if it had been said to his Heir apparent and such an one is called Heir sometimes in proceedings in Law where the greatest strictness of phrase is used as in Writs of Ravishment of Ward Quare filium haeredem rapuit 2 Inst 439. Westm 2. cap. 35. 25 Ed. 3. the Statute of Treasons Treason to kill the Heir of the King The third Point was Whether George Durdant took an Estate Tail or only an Estate for Life for it was Objected that if the words Heirs of the Body were taken for the description only of the person who should take then he must take only for Life But the Court held that they would make an Estate Tail for Heirs is nomen collectivum and is sometimes so taken when 't is only Heir in the Singular Number A Devise to one for life Remainder to the heir Males of his Body for ever this is an Estate Tail in the Devisee Pawsey and Lowther in Rol. Abr. 2. Part 253. But in case the first words viz. Heirs of the Body now living would carry but an Estate for Life to George Durdant yet the subsequent words would make an Entail in him viz. and to such other Heirs Male and Female as he should hereafter happen to have of his Body this would clearly vest an Entail in George he being Heir of the Body of Robert and surviving Robert So the Judgment was affirmed Sed Nota as to the second Point the Lord Chief Baron Atkyns and Justice Powell seemed to be an Opinion that the Remainder was Contingent But in regard the Point had been upon a Writ of Error brought in the House of Lords upon a Judgment given in the Kings-Bench in another Case upon the same Will adjudged to be a Remainder vested they conceived themselves bound by that Judgment in the House of Lords Paschae Anno 2 Willielmi Mariae Memorandum BY an Order of the King and Council 1 Willielmi Mariae the Judges were Ordered to meet and all of them except Gregory Eyre and Turton were assembled at the Lord Chief Justice's Chamber to give their Opinion concerning Colonel Lundy who was appointed Governour of London Derry in Ireland by the King and Queen and had endeavoured to betray it and afterwards he escaped into Scotland where he was taken and brought Prisoner into England and Committed to the Tower Whether admitting he were guilty of a Capital Crime by Martial Law committed in Ireland he might be sent thither from hence to be Tryed there in regard of the Act of Habeas Corpus made Anno 31 Car. 2. which Enacts That no Subject of this Realm shall be sent over Prisoner to any Foreign parts But
of the Crown so 11. and so it was held in the Case of the Earl of Essex in Queen Elizabeths Time and in the Lord Cobham's Case in the Reign of King James the First And the Chief Justice cited the Statute made 29 H. 6. cap. 1. upon the Rebellion of Jack Cade which Act sets forth that John Cade naming himself John Mortimer falsly and traiterously imagined the Death of the King and the destruction and subversion of this Realm in gathering together and levying of a great Number of the King's People and exciting them to Rise against the King c. against the Royal Crown and Dignity of the King was an Overt act of imagining the Death of the King and made and levied War falsly and trayterously against the King and his Highness c. So that it appears by that Act that it was the Iudgment of the Parliament That gathering Men together and exciting them to Rise against the King was an Overt Act of Imagining the Death of the King Vide Stamford's Pleas of the Crown fo 180. And according to this Opinion Judgment was given against Harding in the following Sessions and he was Executed thereupon NOta At an Adjourned Sessions held the 19th of May 2 Willielmi Mariae it appeared that one of the Kings Witnesses which was to be produced in an Indictment for Treason had been the day before Challenged to Fight by a Gentleman that it was said was a Member of the House of Commons he was by the Court bound in a Recognizance of 500 l to keep the Peace And because it appeared the Witness had accepted the Challenge he was bound in the like Sum. NOta Vpon an Appeal to the House of Lords Anno 2 Willielmi Mariae the sole Question was Whether upon the Statute of Distributions 22 23 Car. 2. the half Blood should have an equal share with the whole Blood of the Personal Estate And by the Advice of the two Chief Justices and some other of the Judges the Decree of the Lords was That the Half Blood should have an Equal share Samon versus Jones IN an Ejectment brought in the Court of Exchequer in the year of the Reign of the late King James the Second The Case upon a Special Verdict was to this effect William Lewis seised of a Reversion in Fee expectant upon an Estate for Life did by Deed Poll in Consideration of Natural love and affection which he had to his Wife and Robert Lewis his Son and Heir apparent begotten on the Body of his said Wife and to Ellen his Daughter give grant and confirm unto the said Robert Lewis the Son all those Lands c. the Reversion and Reversions Remainder and Remainders thereof To have and to hold to his Son and his Heirs to the Vses following viz. to the use of himself for Life and then mentioned several other Vses not necessary to be here mentioned as not material to the Point in question and then to the use of the Wife for Life and after to the use of Robert and the Heirs of his Body and for want of such Issue to the use of Ellen the Daughter and the Heirs of her Body c. William Lewis and his Wife died Robert the Son devised the Estate to the Lessor of the Plaintiff and died without Issue Ellen was in possession and claimed the Lands by this Deed in which thâ—re was a Warranty but no Execution of the said Deed further than the Sealing and Delivery was had either by Enrolment Attornment or otherwise So that the sole Question was Whether this Deed should operate as a Covenant to stand seised or be void And it was Adjudged to amount to a Covenant to stand seised in the Court of the Exchequer And upon a Writ of Error brought upon the Statute of Ed. 3. before the Commissioners of the Great Seal and others empowered by that Act to sit upon Writs of Error of Judgments given in the Court of Exchequer the said Judgment was Reversed by the Opinion of Holt Chief Justice of the Kings Bench and Pollexfen Chief Justice of the Common-Pleas And upon a Writ of Error before the Lords in Parliament brought upon the said last Judgment it was Argued for the Plaintiff in the VVrit of Error That this should enure as a Covenant to stand seised to the use of the Wife Son c. It appears by Bedell's Case in the 7 Co. and Foxe's Case in the 8 Co. that the words proper to a Conveyance are not necessary but ut res magis valeat a Conveyance may work as a Bargain and Sale tho' the words be not used so as a Covenant to stand seised tho' the word Covenant is not in the Deed and and Poplewell's Case were cited in 2 Roll. Abr. 786 787. A Feme in Consideration of a Marriage intended to be had between her and J. S. did give grant and confirm Lands to J.S. and his Heirs with a Clause of VVarranty in the Deed which was also Enrolled but no Livery was made It was Resolved to operate as a Covenant to stand seised Vide Osborn and Churchman's Case in the 2 Cro. 127. which seems contrary to that Case but the chiefest Case relied upon was that of Crossing and Scudamore Mod. Rep. 175. where a man by Indenture bargained sold enfeoffed and confirmed certain Lands to his Daughter and her Heirs and no Consideration of Natural Love or Money exprest This was Resolved 22 Car. 2. in B.R. to operate as a Covenant to stand seised and upon a Writ of Error in the Exchequer Chamber the Judgment was affirmed It was said on the other side for the Defendant That the Case at Bar differed from the Cases cited for here the Intention of the Deed is to transfer the Estate to the Son and that the Vses should arise out of such Estate so transferred In the Cases cited no Vses are limited upon the Estate purported or intended to be Conveyed but only an Intention appearing to convey an Estate to the Daughter in Crossing's Case and to the intended Husband in Poplewell's Case and seeing for want of due Execution in those Cases the Estate could not pass at Law it shall pass by raising of an Vse But the Case at Bar is much the same with the Case of Hore and Dix in Siderfin the 1st Part. 25. where one by Indenture between him and his Son of the one part and two Strangers of the other part in Consideration of Natural love did give grant and enfeoff the two Strangers to the use of himself for Life Remainder to the Son in Tail c. and no other Execution was three than the Sealing and Delivery of the Deed this was Resolved not to raise an Vse for the Vse was limited to rise out of the Seisin of the Strangers who took no Estate Vide Pitfield and Pierce's Case 15 Car. 1. Marche's Rep. 50. One gave granted and confirmed Lands to his Son after his Death this Deed had been
to be done where there has been only a right of Action as in Sawle and Clerke's Case in Jones 211. and Cro. Car. where the Case as to this Point is to this effect A Remainder upon an Estate Tail was divested by the Fine of Tenant in Tail who had made an Estate for Life warranted by the Statute and died without Issue He in the Remainder was barred from bringing a Formedon in the life of the Tenant for Life within Five years after the Fine and had not a new Five years after the death of Tenant for Life tho' he could not Enter in the life of the Tenant for Life And the Reason given in Crook's Reports is because he had no other Right after the Death of the Tenant for Life than he had before and this plainly distinguisheth that and the Case at the Bar from the Cases that have been cited of June and Smye's Case in the 1 Cro. 219. and Laund and Tucker 254. for there the Fine was Levied by the particular Tenant which was a Forfeiture which he in Reversion might choose whether he would take advantage of and as the case might be it would be to his prejudice to take advantage of it where the particular Tenant has charged the Land and therefore if he would he should have Five years after the Estate determined to claim as of his Reversion which is another distinct Right from that of the Forfeiture And this was the standing difference that made the distinction where there should be a new Five years given to him in Reversion after the particular Estate determined and where not as we see in Margaret Podgers Case in the 9 Co. 106. If the Tenant for years were ousted and a Fine levied by the Disseisor he in the Reversion was bound by the first Five years Non-claim because tho' he could not enter as if the Estate for years had been determined or as in the Cases before of the Forfeiture yet he might have immediately brought an Assize with which Sawl and Clarke's Case exactly agrees and goes upon the same Reason As for Freeman's Case the Resolution goes wholly upon the Circumstances of Fraud appearing in the Case the principal of which was That the Lessee continued in possession and paid the Rent I confess they have gone a little further of late and now it is taken That he in Reversion shall have Five years after the Term is ended by effluction of Time tho' there were no Forfeiture incurred at the Levying of the Fine Nor no such plain Circumstances of Fraud as appears in Fermer's Case and the Case put before and cited out of Margaret Podgers Case is not held to be Law The contrary whereof is taken to have been Resolved in Folley and Tancred's Case in the 24 Car. 2. and I do not intend to shake the Authority of that Case but admit it to be good in Law yet I crave leave to observe That it is a Resolution carried beyond the words of the Statute for the Right is not pursued within Five years next after it first came For it is agreed in Fermer's Case fo 79. that there the Construction was against the Letter of the Statute and I must say it is a Construction by Equity which is a little extraordinary to weaken the force of a Statute which was made for the quieting of mens Possessions and to add force to Fines which were of so great regard in Law and especially to make a Construction by Equity contrary to the Reason of the Common Law which took no care of a future Right at all for he in the Reversion in case of a Fine Levied at the Common Law depended wholly upon the Entry or Claim of the particular Tenant and in default of that lost his Estate as in the 1 Inst 262. b. and in Plowden's Commentaries in Stowell's Case I say again I do not design by this to oppose any Case that hath been setled But I confess I should not have gone so far if I had not been led by Authority and am not willing to go a step further And now I shall endeavor to shew that this Case goes a great deal further and would be a greater strain upon the Statute than yet has been And First I Observe that upon all or most of the Cases of a Fine where there has been an Estate for Life or Years in being at the time of the Fine that the Possession has held still in the particular Tenant so that he in Reversion had no reason to suspect any Fine or other thing done upon the Estate there being no alteration of the Possession And this agrees somewhat with the Reason of the Common Law in case of a Fine Executory he that had Right was not bound to claim till there were an Execution of the Fine and Transmutation of the Possession thereupon as in Plowden's Commentaries 257. b. in Stowell's Case But here it is found that the Conusor and not the Conusees or the Tenants by Extent or either of them were in possession so that the Land being in the possession of a Wrong-doer they which had Right ought to have watched and might well suspect that Fines should be Levied to the prejudice of their respective Rights It is said in Fermer's Case If a meer Wrong-doer having got the Possession levieth a Fine on purpose to bind the Right this shall bind notwithstanding his unjust Design But the Differences that I chiefly rely upon to distinguish the Case before us from the Cases of Reversions upon Estates for Life and Years or the like particular Estates are these 1. That in those Estates there is either by an express Limitation of the Parties or an operation of Law a certain and particular Term or End of the Estate which until it happens it has not its proper determination which an Estate by Extent has not I know it is has been much insisted on that the natural and proper determination of an Extent is satisfaction by a perception of Profits according to the extended Value whereas I cannot see but a release of the Debt or satisfaction by a sudden Accident is as properly a determination of the Extent as if it were run out by perception of Profits according to the extended Value For when the first Extent is out of the way the second is immediately to take place or why this acknowledging Satisfactoin on Record should be the natural and proper determination of the Extent more than a Release of the Debt by the Conusee or destroying of it by a Fine which is an higher Record than the Statute or the Entry of Satisfaction acknowledged thereupon 2. To let him that has the Reversion upon an Estate by Extent have Five years to claim after the first Extent run out by perception of Profits or Satisfaction acknowledged is to let in a Claim after an Estate that no man can see to the end of For when it shall be satisfied by the Profits no man can tell and can
Perkins IN Debt upon a Bond entred into Eliz. Perkins who was the Plaintiffs Wife and he as her Administrator brings this Action The Defendant pleads That he delivered the Bond to one Eliz. Perkins his Sister quae obiit sola innupta absque hoe that he delivered it to Elizabeth Perkins the Plaintiffs Wife And to that the Plaintiff Demurres Specially For if it be taken that there are two of the name the Defendant should have pleaded non est factum for it amounts to no more Or at least he ought to have induced his Plea that there were two Elizabeth Perkins But this Traverse is designed to bring the Marriage in question which is not to be tried now Wherefore the Court gave Iudgment for the Plaintiff Twisden said If the Issue be Whether the Wife of such a Man or no This is to be tried per Pais For if she be a Wife de facto it serves upon the Issue But Loyalty of Matrimony is to be tried by the Certificate of the Bishop only 2 Cro. 102. Dightons Case A Mandamus was prayed to the Corporation of Stratford super Avon to restore Dighton the Town Clerk They returned their Letters Patents of Incorporation whereby they had Authority to Grant the Office of Town Clerk Durante bene placito and that he was amoved from his Office by the Mayor and Burgesses It was said that here appeared no Cause of amoval upon the Return which was manifestly needless having Authority to turn them out at their Pleasure But Twisden said It hath béen held that where any such like Power is to chuse one into a Iudicial Office as an Alderman whose place concerns Judicature that they cannot amove him without Cause But this was in a Misterial Office It was further moved That it did not appear that they had discharged him by any matter in Writing under Seal and it could not be by Parol Sed non allocatur for it is returned to be done by the Mayor and Burgesses and a Corporation cannot do any thing by Parol Post An Executor obtained Judgment in Debt in this Court and was afterwards upon an Information here convicted of Forging the Will It was also made void by Sentence in the Ecclesiastical Court Whereupon the Court was moved to vacate the Judgment which they ordered accordingly and the Cause of Vacuteing thereof to be entred upon the Record Vide Ante in Paris's Case King versus Atkins IN Debt upon a Bond the Condition recited That whereas the Plaintiff was bound with the Defendant being an Excise-Man that he should render a true Account in the Exchequer that the Defendant should save him harmless at all times c. The Defendant pleaded non fuit damnificatus The Plaintiff replied That a Scire facias issued out against him c. To which the Defendant demurred because he did not alledge that he gave notice This being spoken to divers times the Court thought notice not requisite in this Case no more than upon a Promise to pay so much at the others Marriage or return into England vid. Hob. 112 113. 1 Bulst 12 and 13. Where it is held upon a Promise notice is not necessary otherwise upon a Bond because of the penalty Ante Chester versus Wilson TRin. 21 Car. 2. Rot. 498. The Case was two Ioyn-tenants the one Grants Bargains and Sells all his Estate and Interest to the other It was held clearly by all the Court That this amounted to a Release but it must be pleaded quod relaxavit for one Ioyn-tenant cannot grant to another Wilson versus Armorer IN Debt against the Heir upon the Bond of his Ancestor who pleaded riens per discent the Jury find a Special Verdict to this effect That the Father was seised of a Mannor in Fee and made a Feoffment of it excepting two Closes for the life of the Feoffor only and refered it to the Iudgment of the Court whether these Closes descended to the Defendant or not So that the Question was Whether the Closes were well excepted or passed by the Feoffment And it was argued by Levins for the Plaintiff That by these words the two Closes were Totally excepted and that the Law should reject the latter words because they cannot take effect according to the Parties intention to reserve to the Feoffor a particular Estate If one surrendred a Copyhold to the use of J. S. and his Heirs which Estate to begin after his death adjudged in 2 Rolls 261. a present Fee simple passed 3 Cro. 344. A Man said to his Son being upon his Land Stand forth Eustace my Son reserving and Estate for mine and my Wifes Life I do give you this Land to you and your Heirs Resolved there that this is a good Feofment Moor 950. Popham 49. A Man possessed of a Term in an House in the right of his Wife granted it excepting the Cellar pro usu suo proprio and held that by these words it was altogether excepted out of the grant 1 Anderson 129. Serjeant Turner è contra For that it is but one Sentence and cited 38 H. 6. 38. An Addowson was granted saving the Presentation to the Grantor during his life and held void and Pl. Com. 156. where it is said if a Termour granted his Term after his Death it is void But if in two Sentences as to grant his Term Habendum after his Death there the Habendum is only void Er Adjurnatur Postea Love versus Wyndham AN Action upon the Case upon an Issue directed out of Chancery upon a Special Verdict the Case was George Searl being seised of the Mannor of N. Demised the same to Nich. Love for 99 years if 3 Lives should so long live N. Love devised it to Dulcibell his Wife the remainder to Nich. his Son for life and if he the said N. the Son should dye without Issue then to Barnaby Love the Plaintiff The Executor assented and whether the Devise to Barnaby were good was the Question Jones for the Plaintiff this is a good possibility I shall make two points First If a Termor Devise first to one and then to another whether he may Devise it over Secondly Whether the Limitation here after the Death without Issue be a good Limitation over First He may make a third Limitation which is a Possibility upon a Possibility at least he may make 2 or 3 such Limitations over I can't certainly say where it will end It can't be denied but that a Termour may Devise first to one for life and after to another 8 Co. 95. But I say he may go further and that will appear by Reason and Authority First By Reason The Reason given why the Executory Devise in the first case is good is because 't is in Construction of Law as much as if he had Devised it to the last first if the first Man should dye within the Term and then had Devised that the first should hold during life and without such a transposition it cannot
the Reservation to the Estate Whitlocks Case 8 Co. is very full to this where Tenant for Life the Remainder over so setled by Limitation of uses with power to the Tenant for Life to make Leases who made a Lease reserving Rent to him his Heirs and Assigns Resolved That he in the Remainder might have the Rent upon this Reservation So put the Case That Lessee for a 100 years should let for 50 reserving a Rent to him and his Heirs during the Term I conceive this would go to the Executor 'T is true if the Lessor reserves the Rent to himself 't is held it will neither go to the Heir or Executor But in 27 H. 8. 19. where the Reservation is to him and his Assigns It is said that it will go to the Heir And in the Case at Bar the words Executors and Administrators are void then t is as much as if reserved to him and his Assigns during the Term which are express words declaring the intent and must govern any implied construction which is the true and particular Reason in this Case The Old Books that have been cited have not the words during the Term. Vid. Lane 256. Richmond and Butchers Case indeed is judged contrary in point 3 Cro. 217. but that went upon a mistaken ground which was the Manuscript Report 12 E. 2. Whereas I suppose the Book intended was 12 E. 3. Fitz. Assize 86. for I have appointed the Manuscript of E. 2. which is in Lincolns Inn Library to be searched 6 Co. 62. and there is no such Case in that year of E. 2. The Case in the 12 E. 3. is A Man seized of two Acres let one reserving Rent to him and let the other reserving Rent to him and his Heirs and resolved that the first Reservation should determin with his Life for the Antithesis in the Reservation makes a strong Implication that he intended so In Wotton and Edwins Case 5 Jac. the words of Reservation were Yeilding and Paying to the Lessor and his Assigns And resolved that the Rent determined upon his Death In that case there wanted the effectual and operative Clause during the Term. The Case of Sury and Brown is the same with ours in the words of Reservation and the Assignee of the Reversion brought Debt Lane 255. and did not aver the Life of the Lessor And the Opinion of Jones Croke and Doderidge was for the Plaintiff Latches Rep. 99. The Law will not suffer and Construction to take away the energy of these words during the Term. If a Man reserves a Rent to him or his Heirs 't is void to the Heir 1 Inst 214. a. But in Mallorys Case 5 Co. where an Abbot reserved a Rent during the Term to him or his Successors it was resolved good to the Successor It is said in Brudnels Case 5 Co. that if a Lease be made for years if A. and B. so long live if one of them dies the Lease Determines because not said if either of them so long lives So it is in point of Grant But it is not so in point of Reservation for Pas 4 Jac. in the Common Pleas between Hill and Hill The Case was a Copyholder in Fee where the Custom was for a Widows Estate made a Lease by Licence reserving Rent to him and his Wife during their lives and did not say or either of them and to his Heirs It was resolved First That the Wife might have this Rent tho' not party to the Lease Secondly That tho' the Rent were reserved during their lives yet it should continue for the life of either of them for the Reversion if possible will attract the Rent to it as it were by a kind of Magnetism Hoskins versus Robbins A Replevin for six Sheep The Defendant makes Conusance c. for Damage Fesant The Plaintiff replied That the place where was a great Wast parcel of such a Mannor within which there were time out of mind Copyhold Tenants and that there was a Custom in the Mannor that the said Tenants should have the sole and several Pasture of the Wast as belonging to their Tenements and shews that the Tenants licenced him to put in his Beasts The Defendant Traverses the Custom and found for the Plaintiff The exceptions moved in Arrest of Judgment were now spoken to again First That the Custom to have the sole Pasture and thereby to exclude the Lord is not allowable It hath béen ever held That such a Prescription for Common is not good and why should the same thing in effect be gained by the change of the name That Prescription for Pasture and Prescription for Common is the same thing Vid. 3 Cro. Daniel v. Count de Hertford 542. and Rolls tit Prescription 267. It is held a Man may claim Common for half a year excluding the Lord and that one cannot prescribe to have it always so is not because of the Contradiction of the Term for if the sole Feeding be but for half a year 't is as improper to call it Common but the true reason seems to be because it should in a manner take away the whole profit of the Soil from the Lord and he should by such usage lose his greatest Evidence to prove his Title for it would appear that the Land was always fed by the Beasts of others and it would be very mischievous to Lords who live remote from their Wasts or that seldom put their Beasts there as many times they do not so that by the Tenants solely using to feed it they should lose their Improvements provided for the Lords by the Statute and so come at last for want of Evidence to lose the Soil it self Secondly This Custom is laid To have the sole Feeding belonging to their Tenements and 't is not said for Beasts levant and couchant or averred that the Beasts taken were so 15 E. 4. 32. and Rolls tit Common 398. Fitz. tit Prescription 51. A Man cannot prescribe to take Estovers as belonging to his House unless he Avers them to be spent in his House Noy 145. So 2 Cro. 256. tho' the Prescription was there to take omnes Spinas for it is necessary to apply it to something which agrees in nature to the thing Brownlow 35. Thirdly Here the Plaintiff justifies the putting in his Beasts by a Licence and doth not say it was by Deed whereas it could not be without Deed and so is the 2 Cro. 575. Fourthly Those defects are not aided by the Verdict for they are in the right and of substance But the Court were all of Opinion for the Plaintiff First They held the Prescription to be good and being laid as a Custom in the Mannor it was not needful to express the Copy-hold Estates it doth not take away all the profit of the Land from the Lord for his interest in the Trees Mines Bushes c. continues Co. Inst 122. a. is express that a Prescription may be for sola separalis pastura ' and if
Grant recites the former Settlement which Grant was without Consideration And Secondly makes a Feoffment And it was Resolved that the Grant should not hinder the arising of the Contingent Use because the Grantee had Notice and was therefore subject to the Covenant to stand seized by the Grantor and that the Feoffment should not destroy the Contingent Estate because the right of Remainder for Life in the Daughter upon which she might have entred for the Forfeiture did support it tho' indeed the Remainder for Life in the Wife would not for the Feoffment by the Husband tolls her Right during the Coverture cui contradicere non potest upon which reason is Biggot and Smiths Case adjudged 3 Cro. Now this is stronger than the Case at Bar because the Settlement was by way of use but here Act executed The Case of my Lord Cooke was adjudged by Roll in Banco Regis and after by Glyn. It hath béen the most common way of Conveyancing to prevent the disappointing Contingent Estates to make Feoffments c. to the use of the Husband c. for Life Remainder to the use of the Feoffees for the Life of the Husband and so on to Contingent Remainders and the more modern ways have béen to make the first Estate but for years but in both Cases he which hath the first Estate cannot destroy the Remainders It hath been a question Whether a right of Action would support a Contingent Estate but never doubted but that a right of Entry would Vid. Archers Case 1 Co. Katherin Austins Case AN Indictment was found against her that she vi armis a certain part of the Kings High-way leading from Shorditch Church to Stoke Newington thorough Hogsdon postibus repagulis inclusit c. Vpon a Tryal at Bar the principal question was Whether the place where the obstruction was were an High way Hale said If a way lead to a Market and were a way for all Travellers and did communicate with a great Road c. it is an High-way but if it lead only to a Church to a Private House or Village or to Fields there 't is a Private way But 't is a matter of Fact and much depends upon Common Reputation If it be a publick way of Common right the Parish is to repair it unless a particular person be obliged by Prescription or Custom Private ways are to be repaired by the Village or Hamlet or sometimes by a particular person In the Case at Bar it was found no High-way Ante. Castilian versus Platt ERror of Judgment in Communi Banco in Scire facias against three Executors the Error assigned was that one was an Infant Hale No doubt a Scire facias lies against him and seeing this case is that he did not appear Iudgment was well given against him Symon Morse versus Willam Sluce MIchael ' ult Rot. 421. An Action upon the Case was brought by the Plaintiff against the Defendant and he declared that whereas according to the Law and Custom of England Masters and Governours of Ships which go from London beyond Sea and take upon them to carry Goods beyond Sea are bound to keep safely day and night the same Goods without loss or substraction ita quod pro defectu of them they may not come to any damage and whereas the 15 of May last the Defendant was Master of a certain Ship called the William and John then riding at the Port of London and the Plaintiff had caused to be laden on Board her three Trunks and therein 400 pair of Silk Stockings and 174 pound of Silk by him to be transported for a reasonable reward of Fraight to be paid and he then and there did receive them and ought to have transported them c. but he did so negligently keep them that in default of sufficient care and custody of him and his Servants 17 May the same were totally lost out of the said Ship Vpon Not guilty pleaded a Special Verdict was found viz. That the Ship lay in the River of Thames in the Port of London in the Parish of Stepney in the County of Middlesex prout c. That the Goods were delivered by the Plaintiff on Board the Ship prout c. to be transported to Cadiz in Spain That the Goods being on Board there were a sufficient number of Men for to look after and attend her left in her That in the night came 11 persons on pretence of pressing of Seamen for the Kings service and by force seized on these Men which were 4 or 5 found to be sufficient as before and took the Goods That the Master was to have Wages from the Owners and the Mariners from the Master The She was of the Burden of 150 Tunn c. So the question was upon a Tryal at Bar whether the Master were chargeable upon this matter It was insisted on for the Plaintiff that he who took Goods to carry them for profit ought to keep them at his peril To which it was answered That there was no negligence appeared in the Master By the Civil Law if Goods were taken by Pirates the Master shall not answer for them and this is not the Case of a Carrier for tho' here the Goods are received at Land yet they are to be transported and being one intire Contract they shall not be under one Law in the Port and another at Sea the Master is not liable in case of Fire or Sinking the Ship Owen 57. every one knows the Ship is liable to inevitable accidents and there is no Case of this nature in experience And Serjeant Maynard added that this differed from the case of a Carrier for that he is paid by the Owner of the Goods but here the Master is Servant to the Owner of the Ship and he pays him and not the Merchant The Court inclined strongly for the Defendant there being not the least negligence in him but it was appointed to be Argued but since I 've heard it was compounded It was agreed on all hands that the Master should have answered in case there had been any default in him or his Mariners Anonymus UPon a motion for Restitution after the Reversal of an Outlawry Hale said that he must plead the Reversal to the seisure in Scaccario Puckle versus Moor. MIchael ult Rot. 461. A Promise was made seven years since to pay Money within three Months after The Defendant pleaded Non Assumpsit infra sex annos ante exhibitionem Bille whereas it should have béen causa Actonis non accrevit infra sex annos tho' in this case it appears within the Declaration that the time of payment was not within six years before yet because the Defendant had not pleaded it he cannot have advantage of it Goff versus Loyd MIchael ult Rot. 268. Trespass quare domum fregit and took away so many Nails c. The Defendant pleads Specially and sets forth the two Acts for Hearth-Money 14 Car. nunc cap. 10. and 16
But since H. 8. time it had béen for the most part administred by the Dean and Chapter and the Verdict was here for the Dean and Chapter King versus Melling IN an Ejectment upon a Special Verdict the case was this R. Melling seized in Fee having Issue four Sons William Robert Bernard and John devised the Land in question in this manner I give my Land to my Son Bernard for his natural Life and after his decease I give the same to the Issue of his Body lawfully begotten on a second Wife and for want of such Issue to John Melling and his Heirs for ever Provided that Bernard may make a Joynture of all the Premisses to such second Wife which she may enjoy during her Life R.M. dies Bernard in the life of his first Wife suffered a Recovery to the use of himself in Fee and after her decease Marries a second Wife and then by Indenture covenants to stand seized to the use of himself for Life and after to the use of his Wife for her Life for her Joynture and dies J.M. Enters and makes a Lease to the Plaintiff And this Term after Arguments at the Bar the Court gave their Opinions Rainsford for the Plaintiff First I hold in this Case that B. M. takes but an Estate for Life with a Contingent Remainder to the Issue by his second Wife for the Devise is by express words for Life as in Archers Case 1 Co. a Devise to R. A. for Life and after to the next Heir Male of R. and the Heirs Males of that Heir Male Resolved to create but an Estate for Life to R. A. I rely mainly upon Wilds Case 6 Co. which was brought before all the Judges of England where the Devise was to a Man and his Wife and after their decease to the Children and resolved to be but an Estate for Life 't is true there were Children at the time of the Devise but in the end of the Case 't is said that in such Case if there were no Children the Children born after might take by remainder and the first Estate to be but for Life Clerk v. Day 1 Cro. 313. the Devise was to Rose his Daughter for Life and that if she married after his Death and had Heir of her Body then that the Heir after his Daughter's Death should have the Land and to the Heirs of their Body begotten and if his Daughter died without Issue then to a Stranger It was held by Gawdy and Fenner that Rose had but an Estate for Life in this Case 1 Rolls 837. Devise to his eldest Son for Life and after his decease to the Sons of his Body lawfully begotten the Son resolved to have but an Estate for Life The Second point Whether the power to make a Joynture be destroyed by the Common Recovery these powers to make Estates are of two sorts either Collateral as when Executors have power by a Will to sell Land and such a power cannot be destroyed as appears in Diggs's Case 1 Co. or powers appendant to Estates as to make Leases which shall continue after the Estates to which the power is annexed determins and the power in the Case at Bar to make a Joynture are of this second sort and are destroyed by the alteration of the Estate to which it is annexed in privity as 1 Co. Albany's Case is so that the Common Recovery being a Forfeiture of the Estate for Life by consequence 't is an extinguishment of the power Thirdly But admitting the power continues whether it be well executed and I hold that it is not for being seized in Fee at the time of the Covenant to stand seized to the use of his Wife for her Joynture and this without any reference to his power the use shall arise out of his Interest and not be executed by vertue of his power according to the resolution in Sir Ed. Cleeres Case 6 Co. Twisden of the same Opinion As to the first Point it must be agreed that these words Issue of the Body ex vi termini make not an Entail if they were in a Conveyance by Act executed no more than Children as the words were in Wilds Case 'T is true in a VVill a Devise of Land to a Man and his Issue creates an Entail if the Devisee had no Issue at that time for otherwise those words would be void for in regard they are limited to take presently the Issue born after cannot take as by Remainder there being none to take in praesenti they must be intended to be words of Limitation as a Devise to a Man and his Heirs Males makes an Entail or otherwise the word Males must be rejected then seeing the words in themselves are not proper to make an Entail the next thing to be considered is the intention which is to be known by the expressions in the VVill and not any averment dehors the words are J will give my Land to my Son for Life and after his decease I will give the same to the Issue c. so that the Land is given to him expresly for Life Devise of Land in perpetuum makes Fee but if Land be given by Deèd in perpetuum there an Estate only for Life will pass 15 H. 7. A Devise to one paying 10 l this is a Fee 6 Co. Coliers Case But a Devise to one for Life paying 10 l makes but an Estate for Life the Case of Furse and VVinter was Mich. or Trin. 13 Regis Caroli Rot. 1339. A Devise to his two Daughters equally to be divided between them and to the Survivor of them and to the Heirs of the Body of the Survivor This was so expresly to the Surviror that it was resolved to be a Joynt Estate and not in Common The words here are after the decease of Bernard I give the same to the Issue of the Body c. implying that the Issue should take by Purchase as a Gift and not by Descent Again The power given to Bernard to make a Joynture shews that he could not do it by Virtue of his Estate and therefore needed a power to be annexed And tho' such powers are usually affixed to Estates Tail yet when the construction is doubtful what Estate shall pass the giving such a power is an argument that 't is such an Estate that cannot make a Joynture or the like by any other means The words go further and for want of such Issue then to J.M. 'T is true if Land be devised to a Man and if he dies without Issue then to remain over the Devisee shall have an Entail Owen 29. But it shall not be so in this Case because that Clause is crowded in with other Clauses directly to the contrary I rely mainly upon VVilds Case 6 Co. and the Case quoted out of Bendlowes in the end of that Case A Devise to Baron and Feme and to the Men Children of their Bodies begotten because it did not appear that there were any more Children at
excused yet 't is merely void as to the Party Et Ad jornatur Norton versus Harvey THe Case was an Executor being possessed of a Term let part of it reserving a Rent and died And the Question was whether his Executor should have the Rent or the Administrator de bonis non It was argued for the Executor that this Rent is meerly due by the Contract and not incident to the Reversion and the Administrator is in Paramount it being now as if the Testator had died Intestate and therefore before the Statute of this King such Administrators could not have had a Scire facias upon a Judgment obtained by the Executor tho' in the Case of Cleve and Vere 3 Cro. 450 457. 't is held that he may have a Liberate where the Executor had proceeded in the Execution of a Statute so far as an Extent for there the thing is executed and not meerly Executory as a Judgment If a Man that hath a Term in the right of his Wife le ts part of it reserving a Rent the Wife surviving shall not not have the Rent On the other side it was said that this case differed from that because the Reservation here is by him that had the whole Right executed in him Another objection against the Action was that here in the Declaration being in Covenant for Non payment of Rent there is not any demand alledged But that was answered because the Covenant was to pay such a Sum for the Rent expresly but if the Condition of a Bond be for performance of Covenants expressed in such a Lease one of which is for payment of Rent in that case the Bond will not be forfeit without a demand and of that Opinion were the Court and that the Executor should have the Rent but when recovered Hale said it should be Assets in his Hands And accordingly Iudgment was given for the Plaintiff Termino Sanctae Trinitatis Anno 26 Car. II. In Banco Regis Silly versus Silly DOwer of 300 Acres of Land 200 Acres of Pasture 100 Acres Meadow The Tenant pleaded Non Tenure The Jury found him Tenant as to 320 Acres of Land and as to the rest that he was not Tenant And the Iudgment was that the Demandant should recover the 320 Acres Error was assigned in this Court that the Verdict and Judgment were for more Acres of Land than were demanded But on the other side it was said Land was a general word and might include Meadow and Pasture Curia In a Grant Land will extend to Meadow Pasture c. but in Pleading it signifies Arable only and here in regard they are distinguished in the Count the Verdict and Judgment must be reversed for the whole Tho' Hale said antiently such Iudgment would have been reversed but for the surplusage Vid Post Batmore Vxor versus Graves TRover for a 100 Loads of Wood upon a Special Verdict the Case was this Copyhold Land was surrendred to the use of J. S. for years Remainder to the Brother of the Plaintiff's Wife who died before the Term expired and so was not admitted any otherwise than by the admission of the Tenant for years And it was resolved First That the admittance of him that had the Estate for years was an admittance for him in the Remainder 4 Co. 23. a. 3 Cro. 504. Fine sur Grant and render to A. for Life Remainder to B. Execution sued by A. serves for B. So an Attornment to Tenant for Life serves for him in Remainder and this brings no prejuduce to the Lord for a Fine is not due until after admittance and the Lord may Assess one Fine for the particular Estate and another Fine for the Remainder But Wild said he need not pay it until his Estate comes in Possession after a Surrender the Estate remains in the Surrender before admittance of the Cestuy que use yet where Borough English Land was Surrendred to the use of J. S. and his Heirs and he died before admittance It was held that the younger Son should have it Secondly It was resolved that the Possession of the Tenant for years was so the Possession of him in Remainder as to make a Possessio Fratris But then it was moved that the Conversion was laid after the Marriage and so the Feme ought not to have joyned with her Husband in the Action But the Court held that in regard the Trover was laid to be before the Marriage which was the inception of the cause of Action the Wife might be joyned as if one has the Custody of a Womans Goods and afterward Marries her she may joyn in Detinue with her Husband for in case of Bailment the Proprietor is to some purposes in Possession and to some out of Possession Hale said in this case the Husband might bring the Action alone or joyntly with his Wife And so Iudgment was given for the Plaintiff Anonymus IN Debt upon a Bond the Condition was to save the Obligee harmless from another Bond. The Defendant pleaded Non damnificatus The Plaintiff replies that the Money was not paid at the day and he devenit onerabilis and could not attend his business for fear of an Arrest The Defendant rejoyns that he tendred the Money at the day absque hoc that the Plaintiff devenit onerabilis to which it was Demurred and the Iudgment was given for the Plaintiff for the Money not being paid at the day the Counter Bond is forfeited Vid. 1 Cro. 672. 5 Co. and the Traverse in this case is naught The Mayor and Commonalty of London versus Dupester IN Debt for a Duty accruing to the City for Timber imported called Scavage The Declaration was that they were and had been a Corporation time out of mind and their Customs were confirmed by Act of Parliament Temps R. 2. c. The Defendant tendred his Law and Co. Entries 118. was cited where in Debt for an Amerciament in a Court Baron tho' the imposing of it was grounded upon a Prescription yet Wager of Law was admitted But notwithstanding in this case the Court overruled the Wager of Law for here the Duty it self is by Prescription and that confirmed by Act of Parlimant Debt for a Duty growing by a By-Law if the By-Law be Authorised by Letters Patents no Wager of Law lies So in Debt for Toll granted by Letters Patents 20 H. 7. Termino Sancti Michaelis Anno 26 Car. II. In Banco Regis Silly versus Silly THe Case was moved again And the Court said that the Demandant might have taken Judgment for the 300 Acres only habito nullo respectu to the rest and released all the Damages But this was not proper for an Amendment the Mistake being in the Verdict but if it could have been amended in the Common Bench the Court might here have made such Amendment Ante. Burfoot versus Peal A Scire facias was brought against the Bail who pleaded that the Principal paid the Debt ante diem impetrationis Brevis
Ejectment the Case upon a Special Verdict was to this effect Sir John Danvers being seized of the Lands c. in Tail with the Fee expectant Anno 1646 and in 1647 levied a Fine to the same uses as he was before seized save that a power was reserved to make Leases for any number of years and without reserving any Rent Sir John Danvers did after become Guilty of Treason in Murdring of King Charles the first in 1648 and died in 1655. In 13 Car. 2. cap. 15. the Statute commonly called the Statute of Pains and Penalties Enacts That sundry of the Offenders in that execrable Treason of which Sir J. D. was one should amongst other Penalties there inflicted forfeit all their Lands Tenements and Hereditaments Leases for years Chattels real and interest of what nature or quality soever See the Act of 14 of this King The Lands were by Patent granted to the Duke of York who let them to the Defendant And John Danvers Heir of Sir John Danvers entred and made the Lease to the Plaintiff It had been several times argued at the Bar and this Term Iudgment was given by the Court for the Defendant And Rainsford Chief Justice delivered the Opinion of the Court and the Reasons for himself Twisden Wild and Jones as followeth The question being Whether an Estate Tail were forfeited by the words of the Act of 13 Car. 2. It was observed that all Estates were Fee simple at the Common Law and forfeitable W. the 2. de donis was the first Statute that protected Estates Tail from Alienations and from all Forfeitures of all kinds and so continued until the 12 E. 4. Taltarums Case from which time common Recoveries have been held not to be restrained by the Statute de donis and by the way it must be considered that Perpetuities were never favoured Then came the Statute of 4. H. 7. of Fines which with the explanation of the 32 H. 8. have been always resolved to bar the Issues in Tail so as to Alienations Estates Tail were set free but were not forfeitable no not for Treason until the 26 H. 8. by which they became subjected to Forfeitures in case of Treason and so by 5 E. 6. But 't is true these Statutes extend only to Attainders and 33 H. 8. Vests the Lands c. in the Kings possession without Office Thus having considered the History and Progress of Estates Tail the reasons why such an Estate should be construed to be forfeited upon this Act of 13 Car. 2. are these First The Crime mentioned is of the same nature and with the same aggravations as in 12 Car. 2. by which the Offenders are attainted of Treason c. for they are called Perpetrators of that execrable Treason with many Expressions to the like effect which was looked upon as an offence of that hainous nature that the same Parliament Enacted An Anniversary Humiliation throughout the whole Kingdom to be perpetually observed upon the account of it as if not only they that acted it but the whole Kingdom and their Posterity like to another Original sin were involved in the Guilt of it Nati natorum qui nascuntur ab illis And therefore the Punishment shall not be mitigated in any other manner than is expresly provided by that Act. Secondly It is proved by the generally and comprehensions of the words which are made use of viz. Possessions Rights Hereditaments of what nature soever Interests which does as well signifie the Estate in the ting as that wherein the Estate is which can have no effect if not extended to Estates Tail We must observe also that at the making of this Act entailed Lands were not protected from Forfeitures and tho' 26 H. 8. extends only to Cases where the Offender is attainted yet 't is of good direction to the Judges in Cases of like nature and 't is plain that by this Act of 13 Car. 2. the Offenders were looked upon in pari gradu with these attainted for when the Proviso comes to save the Estates of Strangers c. in trust for whom the Offenders were seized It is said notwithstanding any of the Convictions or Attainders aforesaid Thirdly It is to be observed that the Act takes notice that divers of the Offenders included in this Act were dead now in regard most Lands are known to be entailed if the Act had not intended such Estates to be forfeited it would signifie nothing indeed if the Offenders had been alive it might have been somewhat satisfied with the Forfeiture during their Lives But as the case was it should be of no effect at all after making a great noise of Forfeitures and Confiscations the Act would have been but a Gun charged only with Powder or as in the Fable Parturiunt Montes c. Fourthly It is manifest that the Parliament did not intend that the Children or Heirs of the Persons within the Penalties of the Act should have any benefit of their Estates for in the saving which is made for Purchasers upon valuable Considerations the Wives Children and Heirs of the Offenders are excepted then surely if they would bar them of the benefit of their Purchases à fortiori from inheriting to an Estate Tail especially of a voluntary Entail that seems to be made with a prospect of this Treason which was perpetrated a year after and such an Entail as scarce the like was ever seen before that a power should be reserved to make Leases for any number of years and without Reservation of any Rent By which it is manifest that Sir John Danvers that committed the Treason was fully Master of the Estate Again all Conveyances are avoided by the Act unless such as were upon valuable Consideration which this Fine was not The great case which has been insisted upon by way of objection is Trudgeons Case Co. Litt. 130. Estates Tail were not forfeited upon the Statute of Praemunire but during the Offenders Life For answer to that it must be observed that that Forfeiture is upon the Statute of 16 R. 2. at which times Estates Tail were under thè protection of the Statute de donis but since that time the Judges have not been so strict in expounding Statutes concerning Estates Tail as appears by Adams and Lamberts Case 4 Co. That an Estate Tail given for a superstitious use was within the Statute of 1 E. 6. cap. 4. where the words are generally and not so large as in our case nor so much to demonstrate the intent as is in our Act to extend to Estates Tail wherefore Iudgment was given for the Defendant Note They that argued for the Defendant endeavoured to maintain that if it should be admitted that Entails were not forfeited by the Act yet the Estate of Sir John Danvers in those Lands would be forfeited in regard he levied a Fine in 1647 and the Act of 13 Car. 2. extends to all Lands c. whereof the Persons therein mentioned were seized c. since 1646 and he being
could not be digged up there might be an Indictment Exhibited to the Grand Jury who might Enquire thereupon Termino Sancti Hillarij Anno 32 33 Car. II. In Banco Regis Anonymus A Motion was made against a Judge of an Inferiour Court of Record for increasing upon a View the Damages in an Action of Trespass and Battery to so much more than was given by the Jury Curia The proper way is to Reform it by a Writ of Error for none but the Courts at Westminster can increase Damages upon View Anonymus IF a Writ of Error in Ejectment c. abates by the Act of God a second Writ will be a Supersedeas Otherwise where it abates by the Act of the Party Anonymus IN a Writ of Error to Reverse a Fine the Proclamations were pleaded in the same Fine and Five â—ears quiet possession and this in barr of a Writ of Error The Court Inclined that the Error being in the Fine Five years possession could not be pleaded Sed Adjornatur Mo. Rep. 8. Termino Paschae Anno 33 Car. II. In Banco Regis NOte This Term Sir Francis Pemberton was made Lord Chief Justice of the Kings-Bench in the room of Sir William Scroggs who was displaced Page versus Denton HIll 32 33. Car. 2. Rot. 45. In Debt upon a Bond against an Executor who pleads that the Testator was Indebted to him by an Obligation the Condition whereof was to pay Rent and that at the time of his Decease there was 300 l due for Rent and that he had not more than 60 l Assets to pay it c. The Plaintiff Replied That there was but 30 l due for Rent at the time of the Testator's death Which the Court held to be a good Replication altho' the Penalty of the Bond was forfeited at the time of the Testator's death For if a Bond due to a Stranger be forfeited and this be pleaded by an Executor and that he hath not Assets ultra 't is a good Replication to say That the Obligee would have taken part of his Money in full and it shall be a Bar for no more and here the Defendant ought to take but his due Debt And the Court said that if men would plead their Case Specially it would save many a Suit in Chancery Fitzharris's Case EDward Fitzharris was Indicted of High Treason upon which being Arâ—aigned and demanded to plead he delivered in a Paper containing a Plea to the Jurisdiction of the Court which could not be received as the Court said not being under Counsel's Hand Whereupon he prayed to have Counsel assigned and Named divers whereof the Court assigned Four And he was taken from the Bar three of four days being given him to advise with his Counsel to prepare his Plea as they would stand by him The Counsel prayed that they might have a Copy of the Indictment But the Court denied it and said that it was not permitted in Treason or any other Capital Crimes But Justice Dolben said that sometimes it had been allowed to take Notes out of the Indictment Vid. Mirror 304. Abusion est que Justices ne monstre l'Indictment à les Indictes s'ils demandront Sect. 115. Termino Sanctae Trinitatis Anno 33 Car. II. In Banco Regis Anonymus IN an Action of Debt against an Executor in the Debet and Detinet upon a Surmize of a Devastavit the Defendant was held to Special Bail And so Ruled upon Motion Anonymus IT was said by the Court That if a Corporation that hath been by Prescription accept a New Charter wherein some alteration is of their Name and likewise of the Method in the Governing part yet their Power to remove and other Franchises which they had de temps d'ont c. do continue And if the Power to Remove be at their Will and Pleasure this Will must be expressed under their Common Seal but in Return to a Mandamus debito modo amotus may suffice Note No Writ of Error lies upon an Indictment of Recusancy and Conviction by Proclamation Note In an Ejectment where there are divers Defendants which are to Confess Lease Entry and Ouster if one does not appear at the Trial the Plaintiff cannot proceed against the rest but must be Nonsuit Termino Sancti Michaelis Anno 33 Car. II. In Banco Regis Anonymus IN Covenant the Plaintiff Declared upon several Breaches one whereof was for not paying of 7 l according to the Covenant It was moved for the Defendant that he might be admitted to bring 7 l into Court to pay to the Plaintiff together with his Costs hitherto c. as is usual in Cases of Debt or Assumpsit for Money and that the Plaintiff might proceed for the rest if he thought fit But the Motion was denied because the Plaintiff had Declared of other Breaches and the Matter lay in Damages Anonymus ERror upon a Judgment in the Common Pleas where the Plaintiff Declared in an Action upon the Case that he had Common in the Defendants Lands habere debuit c. The Defendant Demurred because not set out how the Plaintiff was Intituled to the Common whether by Prescription or otherwise Notwithstanding which Judgment in the Common Bench was for the Plaintiff and now the same Matter insisted on for Error here and the Court doubted To make the Declaration good there was quoted the Case of Sands and Trefuses in the 3 Cro. in an Action for Stopping of a Watercourse to his Mill which was held good without saying an Ancient Mill or that he was Intituled to the Watercourse by Prescription or otherwise 2 Cro. 43.122 Dent and Oliver an Action for disturbing of him to take Toll and no Title set forth Sed Adjornatur Vid. Co. Entr. 9. 11. Day versus Copleston IN an Assumpsit for Money the Defendant pleaded the Statute for the Discharge of poor Prisoners and that he had been Discharged by that Act which provides that there shall be no after Prosecution by a Creditor in such case so as to subject the Body to Execution and says that he can say nothing further in Bar of the Action Vpon which the Plaintiff Demurred and the Defendant joyned in the Demurrer and Judgment was Entred up for the Plaintiff but with a Cesset executio quoad Corpus c. And the Court approved of this way of pleading the Statute for otherwise they said if the Matter had not been disclosed in pleading they doubted whether the could have given the Defendant the benefit of the Act but he would be driven to his Audita Querela Anonymus ERror of a Judgment in the King's Bench in Ireland it was suggested that the Plaintiff was in Execution upon the Judgment in Ireland And the Court seemed to be of Opinion that a Habeas Corpus might be sent thither to remove him as Writs Mandatory had been awarded to Calais and now to Jersey Guernsey c. Anonymus THe Case was A. Tenant in Tail Remainder to B. in Tail c. A.
Body of such first Son and in like manner to the second third Son c. and for want of Issue of the said Simon Leach the remainder to Sir Simon Leach and the Heirs Males of his Body and for default of such Issue to the right Heirs of Nicholas the Testator for ever and that the said Nicholas died seised of the Premisses and after his decease the said Simon Leach entred and became seised for Life with Remainders over as aforesaid and being so seised made a Deed hearing date the 23th of August in the 25th year of the Reign of the said King Charles sealed and delivered to the use of the said Sir Simon Leach but he was not present which Deed the Verdict sets forth in haec verba and by if he granted and surrendred to the said Sir Simon Leach his Heirs and Assigns the said Mannor and Premisses the Reversion and Reversions Remainder and Remainders of the same To have and to hold the same to the said Sir Simon Leach and his Heirs to the use of him and his Heirs and they find that the said Charles Leach Lessor of the Plaintiff the first Son of the said Sir Simon Leach was born the first of November in the 25th year of the Reign of the said King Charles and not before and that Simon Leach from the time of his Sealing the Deed to the 25th of May in the 30th year of the said King Charles continued possessed of the Premisses and that then and not before Sir Simon Leach accepted and agreed to the said Surrender and entred into the Premisses and that afterwards the said Simon Leach Brother of the said Nicholas the Testator died and the said Charles Leach his Son after his decease entred into the Premisses and demised them to the Plaintiff who by virtue thereof entred and became possessed and so continued till the said Simon Leach and the other Defendants by his Command ejected him But whether upon the whole Matter the said Simon Leach did surrender the said Mannor and Premisses to the said Sir Simon Leach before the said Charles Leach was born and if he did not surrender before the birth of the said Charles Leach then they find the Defendants Guilty and if he did surrender them before the birth then they find for the Defendants And Pollexfen Chief Justice Powell and Rokeby were of Opinion that here was no Surrender till such time as Sir Simon Leach had notice of the Deed of Surrender and agreed to it and so the Remainder was vested in Charles the Son and it was not defeated by the Agreement of Sir Simon after his birth to the Surrender But Ventris differed and his Argument was as followeth Whom this Record the Case is no more than this Simon Leach Tenant for Life Remainder to his first Son Remainder in Call to Sir Simon Leach Simon Leach before the birth of that Son by Deed sealed and delivered to the use of Sir Simon but in his Absence and without his Notice surrenders his Estate to Sir Simon and continues the possession until after the birth of his Son and then Sir Simon Leach agrees to the Surrender Whether this Surrender shall be taken as a good and effectual Surrender before the Son born There are two Points which have been spoken to in this Case at the Bar. First Whether by the Sealing of the Deed of Surrender the Estate immediately passed to Sir Simon Leach for then the Contingent Remainder could not best in the after-born Son there being no Estate left in Simon Leach his Father to support it Secondly Whether after the assent of Sir Simon Leach tho' it where given after the birth of the Son doth not so relate as to make it a Surrender from the Sealing of the Deed and thereby defeat the Remainder which before such Assent was vested in the Son I think these Points include all that is material in the Case and I shall speak to the Second Point because I would rid it out of the Case For as to that Point I conceive that if it be admitted that the Estate for Life continued in Simon Leach till the Assent of Sir Simon that the Remainder being vested in Charles the second Son before such Assent there can be no Relation that shall divest it I do not go upon the General Rule That Relations shall not do wrong to Strangers 'T is true Relations are fictions in Law which are always accompanied with Equity But 't is as true that there is sometimes loss and damage to Third Persons consequent upon them but then 't is what the Law calls Damnum absque injuria which is a known and stated difference in the Law as my Brother Pemberton urged it But I think there needs nothing of that to be considerrd in this Point But the Reason which I go upon is That the Relation here let it be never so strong cannot hurt or disturb the Remainder in Charles Leach in this Case for that the Remainder is in him by a Title antecedent and paramount to the Deed of Surrender to which the Assent of Sir Simon Leach relates so that it plainly over-reaches the Relation If an Estate in Remainder or otherwise ariseth to one upon a Contingency or a Power reserved upon a Fine or Feoffment to Vses when the Estate is once raised or vested it relates to the Fine or Feoffment as if it were immediately limited thereupon 1 Co. 133 156. So this Remainder when vested in Charles he is in immediately by the Will and out of danger of his Remainder being divested by any act done since as the Surrender is I will put one Case I think full to this Matter and so dismiss this Point It cannot be denied but that there is as strong a Relation upon a disagreement to an Estate as upon an agreement where the Estate was Conveyed without the Notice of him that afterwards agrees of disagrees if the Husband discontinues the Wives Estate and then the Discontinuee conveys the Estate back to the Wife in the absence of the Husband who as soon as he knows of it disagrees to the Estate this shall not take away the Remitter which the Law wrought upon the first taking the Estate from the Discontinuee And so is Litt. cap. Remitter Jones 78. Co. 11 Inst 356. b. The true Reason is because she is in of a Title paramount to the Conveyance to which the Disagreement relates tho' that indeed was the foundation of the Remitter which by the Disagreement might seem to be avoided This therefore I take to be a stronger Case than that at the Bar So that if there were no Surrender before the birth of Charles the Son there can be none after by any Construction of Law for that would be in avoidance of an Estate settled by a Title antecedent to such Surrender whereas Relations are to avoid Mesn Acts and I believe there can be no Case put upon Relations that go any further and it would be
of Priviledge fitting the Parliament 154 Prohibition A second Prohibition not grantable after a Consultation 47 Q Quantum meruit See Outlawry Que Estate See Corporation R Recovery A Deed Fine and Recovery do all make but one Assurance but each hath its several effect 31 Common Recoveries are Common Assurances and are not to be overthrown by nice Constructions 32 A Common Recovery stopt what shall be good Cause to stop it 90 Relation Of Relation its force and where it shall Operate 200 Remainder What shall be accounted a Contingent Remainder and what a Remainder vested 313 Rent Rent due if the thing let hath been really enjoy'd 68 A Rent cannot be reserved out of a thing Incorporeal 69 Every Quarters Rent is a several Debt and distinct Actions may be brought for each Quarters Rent Not so for part of the Money due upon Bond or Contract unless the Plaintiff shews that the rest is satisfied 129 A Debt for Rent payable by an Executor before Bonds because it savours of the Realty and is maintain'd in regard of the Profits of the Land received 184 Request Request where necessary to be set forth and where not 75 Rescous See Return Return If a Sheriff Return a Rescous it is not now Traversable tho' formerly it was 175 Reversion A Reversion is a present Interest tho' to take effect in possession after another Estate determined 328 Revocation What shall be a good Revocation in Equity 350 S Scire facias WHere one Ter-tenant is Return'd summon'd he may plead That there are other Ter-tenants tho' in another County 104. But he must not plead this by way of Abatement but demand Judgment si ipse ad breve praed in forma praed retorn ' respondere compelli debeat 105 The Record of a Scire facias naught in the Titleing not permitted to be amended 105 Scire facias in Chancery to Repeal a Patent 344 Settlement See Conveyance Marriage Mortgage A Voluntary Settlement avoided by a following Settlement in Joynture 363 Sheriff If a Sheriff of a City be in Contempt the Attachment shall go to the Coroners and not to the Mayor but if he be out of Office then it shall go to the succeeding Sheriff 216 Simony To sell an Advowson ea intentione that J.S. shall be presented Simony 39 In case of Simony the Presentation vests in the King without Office Quaere in other Cases 213 Statutes 13 E. 1. Stat. of Winton In an Action upon this Statute not necessary to set forth more in the Declaration than is pertinent to the Action 215 4. H. 7. cap. 24. Of Fines Of Claims after the coming in of Future Interests in the second Saving in this Act 333 21 Jac. 1. cap. 16. See Limitations 22 23 Car. 2. cap. 9. No more Costs than Damage explain'd 36 What Trespass within this Statute What not 48 29 Car. 2. cap. 3. A Promise by Letter a sufficient Promise in Writing within this Statute 361. This Statute does not extend to Trusts raised by Operation of Law 361 31 Car. 2. cap. 2. Where a Man commits a Capital Crime in Ireland he may be sent thither to be Tried thereupon notwithstanding that by this Act No Subject of this Realm shall be sent Prisoner to any Foreign parts 314 1 W. M. cap. 4. That Statute which saves time of Limitation does not alter the Form of Pleading but that shall be as it was before 185 197 Statute Recognizance See Fine What shall be esteemed a regular Extending of a Statute Merchant 326 Where the Interest of a former Statute shall drown'd in that of a latter being both Extended and assigned to the same person 326 327 328 The Extent of a Statute what it is and the Effect thereof 326 338 An Extent upon a Puisne Statute where Extended after a Prior Statute is in the nature of a Reversional Interest 328 When a former Statute is determin'd whether it be by release of the Debt by purchase of part of the Lands by being barr'd by Non-Claim upon a Fine Satisfaction acknowledged or any other means this lets in the Puisne Statute 332 An Extent begins by Record but it may end without Record for a Release by the Conizee after Extent determines it and he that hath a Puisne Statute may Enter 336 Cannot be assigned before Extent in Law 362 Surrender No Surrender of an Estate without Acceptance by the Surrenderee 199 Yet quaere for the Judgment was reverst in Parliament 208 That a Surrender divesteth the Estate immediately before express Assent of the Surrenderee 203 infr T Tail A Devise to one for Life Remainder to the Heir Males of his Body for ever this is an estate-Estate-Tail in the Devisee 313 A Sum of Money cannot be Entailed 349 Tender Plea of a Tender without setting forth a Refusal not good otherwise if a place of Payment was appointed and the Party to Receive was not there 109 Tythes Whether Notice be necessary to be given to the Parson upon setting forth of Tythes 48 Traverse See Pleading Treason Whether Listing of Men to send beyond Seas to joyn the King's Enemies be Treason within the Clause of Levying War in the Stat. 25 Ed. 3. 316 Whether the indictment should not express in particular who those Enemies are or whether the General Words be not sufficient ibid. To List c. and an Intent to Depose the King is Treason within the Clause of Compassing the Death of the King 317 Trespass See Assent Whether a Suit in an Action of Trespass be a Breach of Covenant to hold and enjoy quietly 46 61 62 Where an Action of Trover will lye for Goods tho' an Action of Trespass would not for taking them 169 170 Trust See Chancery Limitation The force of the Word Trust in the Limitation of a Use 312 Where a Man buys Land in anothers Name and pays Money it will be a Trust for him who pays the Money tho' there be no Deed declaring the Trust 361 Trust executed in Chancery according to the Parties meaning 363 364 Tryal A New Tryal directed by the Lord Chancellor where the former Verdict has been complain'd of in a Bill before him the Complainant paying the Costs of the first Tryal 351 352 V Variance See Pleading Verdict See Baron and Feme A Mistake in an Indebitatus Assumpsit where good after Verdict 36 A Declaration tho' Inartificial is notwithstanding good after Verdict 174 Vill. Vill and Parish the Diversity and where Lands in One shall pass in the Other of the same Name 31 Vmpire Arbitrators and Umpire cannot lawfully have concurrent Authorities at the same time 115 Vse Where Money is paid to A. for the Use of B. in whom the Right and Interest vests 310 Lands may be Devised to the Use of another but if no Use be limited they will lodge in the Devisee for a Devise implies a Consideration 312 Vsury No Unlawful Usury if the Agreement be not Corrupt tho' the Wording of the Condition may be otherwise by Mistake
existens liberum tenementum ipsius Janae manu forti ingressi sunt c. Exception was taken to it because it was not adtunc existens liberum tenementum ipsius Janae To which it was Answered That altho' in an Indictment of Forcible Entry it must appear that the place was the Freehold of the party at the time of the Entry with Force because upon the finding of it a Restitution is to be awarded and where 't is generally existens liberum tenementum it may be referred as well to the time of the Indictment as to the Entry yet here 't is not material because no Restitution is to be awarded but the Malefactors being convicted by the View of the Iustices are to be Fined and Imprisoned And the President in Mr. Dalton's Book of Justice of the Peace fo 356. makes no mention of whose Freehold at all But however here existens liberum tenementum shall be referred to the Complainant tho' there be not adtunc and of that Opinion were the Court But Twisden was of Opinion that it was not necessary to be alledged in this Case at all Postea Sir Andrew Henley versus Dr. Burstall IN an Action upon the Case the Plaintiff declared That he being a Justice of Peace the Defendant had Indicted him for rescuing of a Vagabond out of the Constables hands who brought him before him so that the Law could not be executed against him It was said To Indict a man for such a Crime in the Execution of his Office was Actionable and it has been often Resolved That an Action would lye for Indicting a man of Barretry and in the Book of Assize 13. for Indicting one for Trespass And to this the Court did incline but they would further Advise Postea The King versus Ring ERror to Reverse a Judgment in an Indictment of Forgery against Ring upon the Statute of 5 Eliz. cap. 4. for that he Scienter subdole falsò fabricavit quoddam falsum factum scriptum Indentatum Barganiae venditionis which was said to be Inrolled per quod Harrison Keymer Henry Keymer did sell to J.S. such Lands and then sets forth the Indenture verbatim quod postea praedict ' Ring praedict ' Chartam esse falsam contrafactam vi armis pronunciavit publicavit and this was ea intentione ad perturbandum statum titulum interesse of Harrison and Henry Keymer and their Heirs The first Error assigned was That the Indictment was for Forging of a Deed of Bargain and Sale and the Indentures set forth were a Lease and Release Also it did not appear in what Court it was Inrolled and it must be Inrolled at one of the Four Courts at Westminster or before the Justices of the Peace at the Sessions to be a Bargain and Sale and whereas the Indictment is for Forgery of a Deed per quod Harrison and Henry Keymer did sell only one of them was party to the Deed set forth And it ought to have been in quo continetur that they did sell and not They did sell whereas the Deed was Forged which as was said is oppositum in objecto And where it is that Sciens praedictam Chartam esse falsam vi Armis pronunciavit publicavit it was said it ought to have been Vi armis praedictam Chartam pronunciavit publicavit And for this Vauxes Case in 4 Co. was cited where it is Nich. nesciens praedictum potum cum veneno fore intoxicatum sed fidem adhibens dictae persuasioni dicti W. recepit bibit and because it was not praedictum venenum recepit bibit it was held insufficient for Indictments must have precise certainty fo 44. Another Exception was That this Forgery was said to be ea intentione ad perturbandum statum titulum interesse of them and their Heirs and it did not appear that they had a Freehold and the punishment inflicted by the Statute is more severe when the Forgery is to disturb the Freehold than when it only concerns a Chattel Also it ought to appear in whom the Freehold was at the time of the Forgery as an Indictment of Forcible Entry upon the Statute of 8 H. 6. must express in whom the Freehold was at the time of the Force Et Adjornatur Anonymus UPon Process against one the Sheriff returned a Non est inventus and an Affidavit was made That the Defendant was one of the Sheriffs Bailiffs and the Sheriff was amerced Anonymus IN Trover and Conversion against Baron and Feme the Plaintiff declared Quod ad usum proprium converterunt which was naught because it must only be ad usum of the Husband and yet it may be converterunt if she were present yet whatever she doth is the act of her Husband 1 Cro. Sir Andrew Henley and Dr. Burstall THe Case was move◠again and spoken to in Arrest of Judgment That no Action would lye for proceeding against a man by Indictment and it would discourage all legal Prosecutions of Offences and 4 Co. 14 b. was cited where it is resolved That no Action lies for Exhibiting of Articles to a Justice of the Peace against one tho' the matter he false nor for preferring a Scandalous Bill in the Star Chamber concerning things whereof the Court had Iurisdiction But an Action upon the Case or Conspiracy lies where Life or Member are brought in jeopardy by a malicious Indictment But notwithstanding the Court Resolved That the Plaintiff should have Judgment Tho' 't was further alledged That there was no Issue joyned for in the Pleading and Ioyning of the Issue the Defendants Christian Name was mistaken but the Court would amend that it being rightly named before in the Record Ante. The King and Serjent AN Indictment of Forcible Entry and Detainer was preferred against Serjent and the Iury found as to the Detainer with Force Billa vera but as to the Entry Ignoramus And it was moved to quash this Indictment because they ought to have found all or none and of that Opinion was the Court Ante. Rumsey and Rawson THe Case was moved again by Mr. Solicitor That the Plaintiff having Intituled the Parson to Common for 200 Sheep levant and couchant and that these Beasts were levant and couchant and that he put them in by the Licence of the Parson He ought to have shewn That the Licence was by Deed being to take a Profit in alieno solo and the Statute which gives remedy after Verdict when he doth not say Hic in Curia prolat ' doth not aid this And 't is necessary to plead a thing by Deed whose nature requires it But to this it was Answered by Jones 2 Cro. 424 That a Parol Licence was sufficient in this Case being only to take the Profit unica vice there passing no Estate in it And the Plantiff had Iudgment Pomfret versus Ricroft IN Covenant the Plaintiff declares That the Defendant demised unto him a certain Messuage excepting a piece
the Plaintiff may declare against him by Bill and after that the proceedings upon the Latitat cease Note By the Custom of London Hob. 86. 2 Cro. 667. the Debtor may be Arrested before the Money is due to make him find Sureties It was also moved That the Defendant might have Costs being put to the charge of motions to be discharged but the Court would grant none it being but for taking out of the Process of the Court. Stones Case THe Case being moved again The Court absente Moreton dubitante Rainsford granted a Writ of Priviledge altho ' he were obliged by his Tenure to be the Lords Reeve for the Priviledge is presumed more Antient than the Creation of the Tenure or at least shall be preferred in as much as it concerns the Administration of Iustice And Keeling said An Attorney could not be amerced for not doing Suit to his Lords Court at such time as his attendance is required at Westminster Ante. Sir Robert Cotton versus Daintry IN Trover and Conversion for Goods and Money assigned by Commissioners of Bankrupt upon Not guilty pleaded the Quemon of Fact before the Jury was Whether Sir A. B. whose the Goods were was a Bankrupt The Plaintiff proved That he had Silk and other Merchandise in his Warehouse to a very great value and that upon the Credit of them he took up divers Sums of Money and afterwards sold them but could not prove that they were brought in after the Debts contracted or that he had Exported any thing at any time after or a good while before To this the Court delivered their Opinions That the selling of such Merchandise if they were but the Effects of his former Trading for he had béen a Turkey Merchant which he could not put off immediately upon his ceasing to Trade could not make him a Trader for the Statute only extends to those that Live by Buying and Selling. It was also proved That he had a 16th part in a Coalship which at present Traded to Newcastle but brought no present profit to the Owners she being much in Debt for Repairs It was said to be resolved in one Crashaws Case That the having a part in a Ship did not make a man a Trader but that was a Merchant Ship which the Owners let out to Fraight but the Owners Fraighted this Ship themselves and were to have an account of profit and loss and that if an Owner refused to Fraight he was Compellable But in regard it could not be proved that Sir A. B. had Fraighted or that he had received any account of profit Keeling and Twisden were of Opinion that it did not make him a Trader Rainsford and Moreton doubted Wherefore it was offered the Plaintiffs Councel to have found it Specially but they declined it and the Jury found a general Verdict for the Plaintiff The day after motion was made for a new Tryal Affidavit being made that the Foreman of the Jury was Brother in Law to one of the Creditors of Sir A. B. The Court was also informed that the Plaintiff after the Verdict had paid the Jury 4 l a man whereas the Rule of Court is that they coming but out of Hartfordshire should have but 20 s a man Moreton and Rainsford held neither of these Reasons sufficient For the first it was their own Laches that they did not challenge upon it For the other they thought the breach of the Rules of Court ought to be punished but did not think fit to set aside the Verdict for it Twisden for the last treason held a new Tryal was to be granted and that it was fit to be made an Example to other Juries For if the Parties may give what they will it is to be presumed the ability of one or other will much incline the Jury to find for him from whom they may expect the greatest reward Keeling held both reasons sufficient for a new Tryal which could not be in regard the Court was divided whereupon Iudgment was entred for the Plaintiff and Execution taken out and a Writ of Error was brought which was sealed about an hour before Execution executed Whereupon it was moved That the Sheriff might bring the Money into the Court for that the Writ of Error was a Supersedeas for though the Sheriff shall not be in Contempt if he makes Execution after the Writ if no Supersedeas be Sued out for that he had no notice yet the Writ of Error immediately upon the sealing forecloses the Court so that the Execution made after is to be undone of which Opinion was the Court and Ordered the Money to be brought in and not delivered to the Plaintiff Mr. Justice Moreton's Case HE brought Debt as Executor upon the 2d of Edw. 6. for not setting forth of Tythes due to the Testator Vpon non debet pleaded and a Verdict for him it was moved in Arrest of Judgment That this being a forfeiture given by the Statute for a Tort done to the Testator it could not be brought by the Executor To which it was answered That this Action was maintainable within the equity of the Statute of the 4th of Edw. 3. that gives the Executor Trespass de bonis asportatis in vita testatoris So an Ejectione firmae lies upon an Ejectment done to the Testator and Trover and Conversion where the Conversion was in the time of the Testator 1 Cro. adjudged that an Executor may bring an Action upon the Case against the Sheriff for an Escape upon Mesne Process suffered in his Testators life time And the Court were clear of Opinion for the Plaintiff and said it had béen formerly resolved so in the Exchequer Chamber The Lady Wortley versus Holt. A Writ of Error was brought to Reverse a Judgment given in Dower in the Common-Pleas which being affirmed in this Court a Writ of Error was brought returnable in Parliament which was discontinued by the Prorogation of the Parliament Another Writ of Error was brought Teste the last day of the Session of Parliament viz. 1 March Returnable 19 November the day to which it was Prorogued The Court resolved That though the first Writ of Error was not discontinued by any Act of the Party yet this second should be no Superseas First It was doubted whether this Writ of Error bearing Teste the last day of the Session was not determined by the Prorogation And it was held clearly That A Writ of Error returnable ad proximum Parliamentum could not be good But here the Parliament was Prorogued to a day certain But however all the Court held That in regard of the length of time in the Return it should be no Supersedeas And Twisden cited a Case between Limmerie and Limmerie where a Writ of Error was brought Teste 28 Nov. Returnable 28 Nov. proxime sequent ' in Parliament ' and resolved to be no Supersedeas 2 Cro. 341. by reason of the length of the Return Anonymus AN Information was exhibited against A.
against Bates a Schoolmaster who as it was alledged taught School without the Bishops Licence and it was granted because they endeavoured to turn him out whereas they could only Censure him he coming in by the Presentation of the Founder In a Feoffment of Tythes and Lands where there is no Livery if they do adjudge the Tythes to pass notwithstanding there is no Livery a Prohibition will lye In Debt upon a Lease at Will there must be an Averment that the Lessee occupied the Lands But it is otherwise upon a Lease for Years Anonymus THe Court was moved to grant an Attachment against a Justice of the Peace who upon Complaint refused to come and view a Force But the Court denied it and directed the party to bring an Action of Debt for the 100 l Forfeiture given by the Statute in that case It was said by the Court That in an Execution upon a Statute Merchant there is no need of a Liberate as there is upon a Statute Staple And in the Case of a Statute Staple the Conusee can bring no Ejectment before the Liberate neither can the Sheriff upon the Liberate turn the Terre-Tenant out of possession as he is to do upon an Habere facias possessionem Dier versus East AN Action was brought against the Defendant upon an Indeb ' pro diversis Mercimoniis venditis deliberatis to the Wife to the use of her Husband it being for her wearing Apparel And after Verdict for the Plaintiff it was moved in Arrest of Judgment that this Declaration being laid That the Sale was to the Wife tho' it was to the use of the Husband it was not good as if it had been sold to the Servant of the Plaintiff Nevertheless the Court were of Opinion That it being for her Apparel and that suitable to her Degree the Husband was to pay for it as had been Resolved in this King's time in Scot and Manby's Case in the Exchequer Chamber and that the Declaration was well enough Anonymus THe Defendant in an Action of Debt upon a Bond sued out an Injunction in Chancery where after the Case had depended for two years the Court was moved that the Plaintiff might accept of his Principal Interest and Charges The Court said If the Defendant comes before Plea pleaded and makes such a proffer they are ex debito Justitiae to allow it But now he having delayed the Plaintiff in Chancery two years it was in their discretion And the other three against the Opinion of Keeling thought fit to deny it Clarke versus Phillips al' UPon the Trial in an Ejectment the Title of the Plaintiff's Lessor appeared to be by a Remainder limited to him for Life upon divers other Estates and that there was a Fine levied and Proclamations passed but he within the Five years after his Title accrued sent two persons to deliver Declarations upon the Land as the course is upon Ejectments brought The Court Resolved that this was no Entry or Claim to avoid the Fine he having given no express Authority to that purpose and the Confession of Lease Entry and Ouster by the Defendant should not prejudice him in this respect In this Case Keeling and Twisden were of different Opinions in this Point Viz. If he that hath power of Revocation over Lands c. makes a Lease for Life whether it suspends the Power only as a Lease for years would do or extinguisheth it as a Feoffment The King versus Monk al' IN an Information for a Riot it was concluded contra formam Statuti 13 H. 4. which appoints Justice of the Peace upon complaint of Riots to View and Record them And after Verdict it was moved in Arrest of Judgment that this Information was not good it being grounded upon this Statute which only mentions Riots and appoints them to be punished in the manner there expressed But the Chief Justice Keeling was of Opinion that it being a Crime at the Common Law and mentioned in this Statute the Information was well concluded But the other Justices inclined to the contrary Anonymus DEbt upon a Bond Conditioned to perform Covenants in an Indenture The Defendant pleaded That there were no Covenants contained in the Indenture on his part to be performed The Plaintiff demands Oyer of the Indenture which is Entred verbatim and then Demurs which he could not well do before the Entry of it whereby it becomes part of the Bar so the cause of the Demurrer appears Then it was alledged by Saunders whose Hand was to the Plea That the Plaintiff could not have Judgment because he had set forth no Breach But the Court was much offended with him For they held the Plea in Bar meerly for delay and advised against the Statute of Westm 1. Robinson versus Pulford IN an Assumpsit the Plaintiff declared That the Defendant in Consideration that the Plaintiff would deliver such silver Threads and other Wares into the Shop of J. S. that he should require that he would see him paid Now after an Assumpsit pleaded and Verdict for the Plaintiff it was moved in Arrest of Judgment That the Plaintiff had not averred in his Declaration that J. S. had not paid for the Goods For the promise to see him paid was no more than if he had said If J.S. doth not pay you I will in which Case such Averment must have been But the Court Resolved that a Promise to pay and to see him paid was all one and the Averment unnecessary Rushden versus Collins IN an Assumpsit the Plaintiff declared the Consideration to be pro opere preantea facto After Verdict for the Plaintiff it was moved in Arrest of Judgment that opere was too general and might intend so inconsiderable a matter as would not amount to a Consideration for the Plaintiff But they gave Judgment for they said labore or servitio had been adjudged sufficient Lee versus Edwards IN an Assumpsit the Plaintiff declared That in Consideration that he would employ his skill and pains and provide Medicaments for and Cure a certain person of a Pthysick that he would pay what he deserved and lays another Promise at the same time in Consideration as aforesaid and alledges the Promise somewhat varying from the first and concludes with an Averment That he had bestowed his pains and cured accordingly Vpon Non Assumpsit pleaded and a Verdict for the Plaintiff the Court was moved to stay Judgment because the Plaintiff had made no Averment of the Cure upon the first Promise and entire Damages were given so it was ill in all But the Court were of Opinion That in regard he had Averred it upon the second Promise so as it appeared upon Record that the Cure was done it aided the omission of it in the first especially being after a Verdict Nota There is an Inquisition upon every ones death that dies in the Kings-Bench by the Master of the Crown-Office and Coroner Pomfret versus Rycroft IN a Writ of
Nonsuit him Dyer 76. b. for the Defendant could have no Scire facias into Ireland Leech versus Widsley IN an Action of Trespass for Chasing of his Sheep and Impounding of them and there detaining of them until he gave him 12 d per quod one of the Sheep died The Defendant pleads that J.S. was seised in Fee of the place Where and that the Sheep were there Damage feasant and that he by the Command of J. S. leniter chaceavit eas and Impounded them until he gave him satisfaction quae est eadem Transgressio The Plaintiff in his Replication entitles himself to Common there The Defendant Rejoyns and says that the place Where was parcel of a great Waste wherein the Plaintiff had Common appurtenant and that the Lord Inclosed the place Where and that the Plaintiff had tempore quo c. semper postea sufficient Common for all his Sheep levant and couchant To which the Plaintiff Demurs First For that the Bar was Insufficient for the Plaintiff chargeth him with detaining them until he paid him a Shilling and he pleads that he detained them until he gave him satisfaction sed non allocatur Vid. 3 Cro. 384. Hill and Prideaux's Case but here the Plaintiff hath waived that Advantage by pleading over Again He doth not answer to the killing of the Sheep sed non allocatur for he pleads leniter chaceavit so that if the Sheep did dye he is not answerable neither doth the Plaintiff declare of any extraordinary Chasing but alledges the dying of the Sheep only in aggravation of the Damages coming after the Per quod and that is not traversable As in an Action for Beating of his Servant per quod servitium amisit the loss of the Service cannot be traversed But that which was most insisted on was what he alledges in his Rejoynder viz. That the Plaintiff had Common sufficient left him for his Sheep levant and couchant upon the Tenements Whereas he ought to have said Sufficient ad tenementa praedicta For it may be the Ground was understocked Also 't is not set forth that he had free Egress and Regress the Words of the Statute of Merton are Tantam pasturam habeant quantum sufficit ad tenementa sua quod habeant liberum ingressum sed non allocatur for his Sheep levant and couchant is intended as many as the Land will maintain and if there were no Egress or Regress it ought to come on the other side So Judgment was given for the Defendant nisi causa Anonymus AN Infant Executor brings an Action It was said by Twisden That it had been Adjudged that he ought to sue by Guardian Ely versus Ward IN a Writ of Error to Reverse a Judgment given in the Court at Hull upon an Assumpsit the Plaintiff declared That it was Agreed between them at a place infra Jurisdictionem Curiae That upon Request c. and that he Requested him at a place infra Jurisdictionem Curiae It was assigned for Error That this Action ought not to have been brought in Hull because the Request was not appointed to be made within the Iurisdiction by Agreement Sed non allocatur As long as the Agreement and Request were made there tho' the Request might have been elsewhere Another Error was assigned in that the Precept to the Serjeant at Mace for Returning of the Jury was Probos legales homines qui null affinitat ' c. attingen ' whereas the Form of the Venire is attingunt Sed non allocatur For it was held to be as well Tho' Twisden said The Form of a Writ ought not to be altered into another Expression of the same signification Then the Entry was Ad quem diem venerunt the Plaintiff and Defendant Juratores and it should have been Veniunt sed his non obstantibus the Judgment was affirmed Anonymus IT was held That if the Sheriff Returns a Cepi Corpus upon a Capias altho' he hath not his Body in Court at the day of the Return yet no Action can be brought against him but he is to be amerced for it at the Common Law One so taken could not be Bailed but by a Homine Replegiando and now the Statute of the 23th of H. 6. obliges the Sheriff to take Bail however the Return is as at the Common Law Cepi Corpus Freeman versus Barnes TRin. 20 Car. 2. Rot. 554. Error to Reverse a Judgment given in Communi Banco in an Ejectment where upon Not Guilty pleaded the Jury found a Special Verdict to this effect Tenant in Fee makes a Lease for an hundred years in Trust for himself to wait upon the Inheritance the Lessee enters Cestuy que Trust enters and takes the Profits and makes several Leases all which being expired he makes a Lease for 54 years and for the corroborating of it Levies a Fine with Proclamations the Lessee enters 5 years pass And Tyrrel and Archer they being the only Judges in the Common Plea then gave Iudgment That the Fine should bar the Lessee for an hundred years Vpon which a Writ of Error was brought in this Court and Argued this Term by Levins for the Plaintiff in the Writ of Error and Finch Solicitor for the Defendant And for the Reversing of the Judgment Levins Argued That this Lease by the Cestuy que Trust and the Entry of his Lessee did not dispossess the former Lessee and then the Fine and Non-claim could not prejudice his Interest which was not put to a right For first the Cestuy que Trust was at least Tenant at Will So is Littleton Sect. 464. Cestuy que Use may enter and hold at the Will of his Feoffees then his Lease can be no Disseisin because the Inheritance was in himself 'T is true in some Cases a man may do an Act which shall divest his own Estate As if a Stranger disseises Tenant for Life to the use of him in the Reversion and he assents Co. Lit. 180. b. the Law shall not construe a Disseisin against the parties Intention Rolls 661. He that enters by colour of a void Lease is no Disseisor 1 Cro. 188. nor any one that enters by Consent 15 E. 4. 5. b. Neither shall the Interest of the Lessee be divested but at his Election for this Lease works in point of Contract and not so violently upon other mens Interests as Livery doth In Latche's Rep. 75. Sir Thomas Fisher's Case Tenant for years le ts at Will the Lessee makes a Lease for years this works no dispossession If a Copyholder makes a Lease for years without Licence the Entry of the Lessee is no Disseisin to the Lord and he may chuse whether he will take it as a Forfeiture Rolls 830. Lease for years upon Condition to be void upon Non-payment of Rent a demand is made the Lessor may make a new Lease of the Land the former Lessee being still in possession And Blunden and Baugh's Case was cited in 1 Cro.
TRin. 20 Car. 2. Rot. 719. A Custom that Lands should descend always to the Heirs Males viz To the Males in the Collateral Line excluding Females in the Lineal was held good Which it was said was allowed anciently in the Marches of Scotland in order to the Defence of the Realm which was there most to be looked to tho' it is said in Davis's Reports That the Custom of Gavelkind which was pretended in Ireland and Wales to divide only between Males was naught But the former Custom was adjudged good in this Court Hill 18 Car. 2. Rot. 718. Foot versus Berkly BErkly had Iudgment in an Ejectment in Communi Banco and Execution of his Damages and Costs Foot brings Error and the Judgment is affirmed Whereupon Berkly prays his Costs for his delay and charges but could not have them For no Costs were in such case at the Common Law and the Statute of 3 H. 7. cap. 10. gives them only where Error is brought in delay of Execution so 19 H. 7. cap. 20. And here tho' he had not Execution of the Term yet he had it of his Costs If one hath Iudgment in a Formedon in Remainder and before Execution the Tenant brings Error the Judgment is affirmed yet he shall pay no Costs because none were recoverable at first 1 Cro. Ante. Weyman versus Smith A Prohibition was prayed to the Mayor and Court of Bristol Suggesting that a Plaint was Entred there for 66 l and that the Cause of Action arose in London and not in Bristol and so out of their Iurisdiction Note An Affidavit was also made thereof and this is upon Westm cap. 35. and so is F.N.B. 45. Vnless the party pleading in Bar or Imparling admits the Iurisdiction of the Court 2 Inst Tarlour and Rous versus Parner AN Account brought by the Plaintiffs as Churchwardens against the Defendant the former Churchwarden for a Bell c. The Defendant pleads That it lacked mending and that by the Assent of the Parishioners it was delivered to a Bell Founder who kept it until he should be paid To which the Plaintiff Demurred For this Plea is no bar of the Account but a good Discharge before Auditors But it was said on the other side That the Matter pleaded shewed that the Defendant was never Accountable therefore it might be in Bar. The contrary whereof is Adjudged in the same Case in terminis 1 Rolls 121. between Methold and Wyn and so was the Opinion of the Court here But then it was alledged that the Declaration was not good for there were two Plaintiffs and yet it is quod reddat ei compotum and it is de bonis Ecclesiae whereas it should have been bonis Parochianorum For the first the Court said that it should be amended for it was the default of the Clerk But the other was doubtful For the Presidents were affirmed to be both ways but they rather inclined that the Declaration was not good for that cause Anonymus AN Indictment of Forcible Entry in unum Messuagium vel domum Mansional ' quaere if not uncertain and other Lands and Tenements tent ' ad voluntat ' Dom ' secundum consuetudinem Manerii and doth not express what Estate For which the Court held it ought to be quashed for the Statutes 8 H. 6. and R. 2. extend only to Freeholds and the Statute in King James's time to Leases for years and Copyholds And here tho' he saith at the Will of the Lord according to the Custom of the Mannor yet 't is not sufficient because he saith not by Copy of Court Roll. And it was Adjudged in 1653 in this Court that none of the Statutes extended to Tenants at Will Martyn versus Delboe IN an Assumpsit the Plaintiff Declared That he was a Merchant and the Defendant being also a Merchant was Indebted to him in 1300 l And a Communication being had between them of this Debt the Defenant promised him in Consideration thereof That he should have Share to the Value of his said Debt in a Ship of the Defendants which was then bound for the Barbadoes and that upon the Return of the Ship he would give him a true Account and pay him his proportion And sets forth That the Ship did go the said Voyage and returned to London and that after the Defendant with some other Owners had made an account of the Merchandize returned in the said Ship which amounted to 9000 l and that the Plaintiffs Share thereof came to 1700 l which he had demanded of the Defendant and he refused to pay it c. To this the Defendant pleads the Statue of Limitations and the Plaintiff Demurred Alledging that this Action was grounded upon Merchants Accounts which were excepted out of the Statute Tho' if an Action be brought for a Debt upon an Account stated between Merchants the Statute is pleadable as was Adjudged in this Court last Hillary Term between Webber and Perit yet here there being no Account ever stated between the Plaintiff and Defendant it is directly within the Statute And of that Opinion were Keeling and Rainsford But Twisden inclined otherwise because the Plaintiff declares upon an Account stated and tho' between Strangers yet he bringing his Action upon it admits it Et Adjornatur Nota Every Parish of Common Right ought to Repair the High-ways and no Agreement with any person whatever can take off this Charge which the Law lays upon them Crispe and Jackson versus The Mayor and Commonalty of Berwick IN Covenant after Verdict for the Plaintiff it was moved in Arrest of Judgment that there was a Mis-Trial the Venire being awarded to an adjoyning County Which the Court after Hearing of Arguments in it Ruled it to be well enough but one of the Plaintiffs died before the Court had delivered their Opinions It is prayed notwithstanding that Judgment might be Entred there be no default in the Plaintiffs but a delay which came by the act of the Court and that it was within the Statute of this King That the death of the Party between Verdict and Judgment should not abate the Action and that it was in the discretion of the Court whether they would take notice of the Death in this case for the Defendant hath no Day in Court to plead there being no Continuances entred after the Return of the Postea 1 Leon. 187. Isley's Case Latches Rep. 92. And the Court were of Opinion that Judgment ought to be Entred and there being no Continuances it may be as if immediately upon the Return of the Postea Ante. Lion versus Carew THe Case was A Lease was made to two for 99 years if three Lives should so long live and this to commence after the end of a Lease for Life Reddend ' a certain yearly Rent and two Work-days in Harvest post principium inde reddend ' inde 3 l nom ' Harriotte post mortem of the Lessees or either of them and reddend ' two Capons at Christmass post
principium inde One of the Lessees died before the Lease for Life determined whereupon the Lessor brings Covenant for the 3 l and sets forth this Matter in the Declaration To which the Defendant Demurred supposing that the 3 l was not to be paid unless the Death had hapned after the Term had commenced And the Court having heard it spoken to divers times by Counsel on both sides by the Opinion of Twisden Rainsford and Moreton Iudgment was given for the Defendant For all the other Reservations but this were expresly post principium termini and Clauses in Companies are to expound one another as it is said in the Earl of Clanrickard's Case in Hobart It is in the nature of a Rent and Reservation which it is not necessary that it should be Annual And in Randall and Scories Case 1 Cro. such a Duty was distrained for and it shall attend the Reversion Rolls 457. And he that hath but an interesse termini is not to pay the Rent reserved for there is no Term nor no Reversion until it commences If A. lets to B. for 10 years and B. redemises to A. for 6 years to commence in futuro in the mean time this works no suspension of either Rent or Condition The Intention of the Parties is to be taken That it should not be paid until then However Reservations are to be taken most strongly against the Reserver As Palmer and Prowses Case cited in Suffeild's Case 10 Co. is The Reversion of a Lease for years was granted for Life reserving certain Rent cum reversio acciderit a Distress was made for the Rent arrear ever since the Grant Resolved that it was good for no more than was incurred since it fell into possession Keeling Chief Justice held strongly to the contrary For he said the words were so express in this Case that they have left no place for Construction which other Clauses or the Intention of the Parties may direct when the Expression is doubtful He took it for a Sum in gross for Distrained for it could not be being reserved upon the Death of the Lessees or either of them which was also the limitation of their Lease And that Interpretations were not to be made against the plain sense of words He relied upon Edriches Case 5 Co. where the Judges said They would not make any Construction against the express Letter of the Statute yet there was much Equity in that Case to incline them to it And he said As well as a Fine is paid upon the taking of such Lease before it begins why may not something be paid also when their Interest determines And in some Countries they call such Payments A fair Leave Miller versus Ward TRespass for breaking of his Close on the 1st of August and putting in his Cattel The Defendant Iustifies for Common which he prescribes for in this manner viz. That two years together he used to have Common there after the Corn reaped and carried away until it was sown again and the Third year to have Common for the whole year and that that Year the Plaintiff declares for the Trespass was one of the years the Field was own quod post grana messa c. he put in his Cattle absque hoc that he put them in aliter vel alio modo The Plaintiff Demurs which it was Ruled he might for the Defendant doth not answer to the Time wherein the Trespass was alledged and the Traverse will not help it for aliter vel alio modo doth not refer to the time Anonymus AN Administrator brings Debt upon an Obligation The Defendant pleads payment to himself Vpon which it was found for the Defendant Coleman prayed that he might have Costs As where an Executor brings an Action sur Trover and Conversion in his own time and found against him it was Ruled in Atkyes Case 1 Cro. that he should pay Costs and hereof his own knowledge he had no cause of Action the Money being paid to himself But the Court Resolved That there ought to be no Costs in this Case for the Action of Trover in his own time might have been brought in his own Name so it was needless to name himself Executor or Administrator but the Action here is meerly in right of the Intestate Harvey versus James AFter Verdict at the Assizes the Clerk delivered the Postea to the Attorney by whose negligent keeping it came to be eaten with Rats But the Court Examining the Clerk of Assize it appeared that he had Entred the Jurors Names Verdict and Tales in his Book and according to that the Court suffered the Verdict to be entred on Record Anonymus IN an Action of Battery against Baron and Feme the Jury find the Feme only Guilty and not the Baron It was moved in Arrest of Judgment That this Verdict was against the Plaintiff for he ought in this Case to have joyned the Baron only for conformity and he declaring of a Battery by both the Baron being acquitted he hath failed of his Action and so is Yelverton 106. in Drury and Dennys Case But here the Court gave Iudgment for the Plaintiff and said that that in Yelvetron was a strange Opinion Anonymus A Certiorari was prayed to remove an Indictment of Manslaughter out of Wales which the Court at first doubted whether they might grant in regard it could not be tryed in an English Country But an Indictment might have béen found thereof in an English County and that might be tryed by 26 H. 8. cap. 6. vid. 1 Cro. Soutley and Prices Case and Chedleys Case But it was made appear to the Court That there was a great cause to suspect Partiality if the Tryal proceeded in Wales for the Party was Bailed already by the Justices of Peace there which Twisden said it was doubtful whether they had power to do for Manslaughter They awarded a Certiorari and took Order that the Prosecutor should be bound by Recognizance to prefer an Indictment in the next English Country Collect versus Padwell IN Debt upon a Bond to perform an Award which was That one should make a Lease to another before the 21 of October which was 2 or 3 Months after the Award and that the other upon the making of the Lease should pay him 50 l The Question was Whether notice in this Case ought to be given when he would make the Lease for otherwise it was said the other must have 50 l always about him or be in danger to break the Award And it was resolved by the Court That no notice was necessary Noell versus Nelson MIch 21. Car. 2. Rot. 745. Error to Reverse a Judgment given in the Common Pleas where the case was thus Nelson brings Debt against Noel as Executor of Sir Martyn Noel who pleads plene administravit The Plaintiff confesseth the Plea and prayeth Iudgment de bonis Testatoris quae in futoro ad manus Defendentis devenirint and upon a Suggestion of Assets afterwards he
warranted by the Writ so to do and if Iudgment be given after the Teste and before the Return of the Writ of Error the Record shall be removed but if Iudgment be entred after the Writ is returnable the Writ is only to be returned and that no Iudgment is yet given and here was an omission in the Plaintiff that he did not see that Iudgment was entred for after a Writ of Enquiry of Damages returned the Court is to give Iudgment at the prayer of either Party and not without Note If the Record vary from the Writ of Error yet the inferiour Court ought to remove it The King versus Ledgingham IN an Inormation against him for the King the Court took a privy Verdict and so it was said was the usual course at the Assizes But it cannot be so in case of Felony and Treason as is said in the 1 Inst 227. b. In cases of Life and Member if the Jury cannot agree before the Judges depart they are to be carried in Carts after them so they may give their Verdict out of the Country Polus versus Henstock IN Trespass for impounding of 11 Oxen. The Defendant Pleads That Sir H. Vernon was seized of a Close called the Cowes Lesowe in Fee and Let it to him for 99 years and that the Cattel came upon the Close and so justifies for Damage Feasant The Plaintiff Replies confessing Sir H. V's Estate and the Lease and saith that Sir H. V. was seized of another Close adjoyning called Browns Close and alledges a Custom in Peplow in which Town both the Closes are that all the Occupiers of the Cowes Lesowe had maintained a Fence against Bowmers and that the Cattel came upon the Land in default of the Fence c. and Issue taken upon the Custom and found for the Plaintiff It was moved in Arrest of Judgment First That this was in the nature of a Prescription and not of a Custom for a Custom cannot be laid in a Ville and applied to a particular place or Inhabitant therein unless in case of a Coppyholder where it is necessary in regard he cannot prescribe 4 Co. 113. Secondly If it had béen alledged by way of Prescription it should be laid in him that had the Inheritance And if it be objected that it is hard to drive a Stranger to discover that then it ought to be alledged quod omnes Tenentes but not as it is here omnes Occupatores 1 Cro. Baker and Breremans Case Thirdly By the Vnity this Duty of Fencing is extinguished and shall not revive though the Closes come after into several Hands In Dier 295. b. it is left a Quaere But in Popham 172 it is clearly held so where it is said things of necessity shall revive as a Way to Market or Church but not so of Easments 1 Cro. Baker and Breremans Case And of this Oppinion were the Court. Jones versus Powell THe Plaintiff declared that he was an Attorney and the Defendant to Scandalize him in his Profession said of him That he could not read a Declaration By reason of which many of his Clients left him And the Opinion of the Court inclined against the Plaintiff For the Allegation of Special Damages will not maintain the Action unless the words import some Slander which these did not unless brought in by some words precedent touching his knowledge in his Profession for the Declaration might be so written that he might not be able to read it without any Imputation of Ignorance Sard versus Ford. MIch 21. Car. 2. In an Action upon the Case the Plaintiff declared That he was seized of the Mannor of Newton Abbot and that he c. had kept a Market there every Wednesday and used to have the profits of Stallage c. That the Defendant had erected a new Market at a place 7 miles distant from the Plaintiffs held every Tuesday c. Jones excepted to this Declaration for that it could not be to the hindrance of the Plaintiff's Market which was 7 miles off and kept upon another day 22 H. 6. 14. 2 Rolls 140. It appears that an Action was brought against one that levied a Market not above 5 miles distant and upon the same day Curia contra The Writ of ad quod damnum doth not express the Market to be erected the same day and notwithstanding it will hinder recourse to the other Market Anonymus A Dean and Chapter made a Lease of Tythes for years the Lessée assigned over his Interest and afterwards the Dean and Chapter bring Debt against him for the Rent Who Pleads That the Plaintiffs accepted the Rent due since the Assignment from the Assignee to which the Plaintiffs Demurr Jones This is no Rent but a méer Sum in gross due upon the Contract therefore in the 5 Rep. in Jewells Case it appears that such a Rent cannot go to the Successor of a Bishop for the Successor of a Sole Corporation cannot Sue upon a Personal Contract to his Predecessour If the Reversion be granted over the Grantee cannot bring Debt 2 Rolls 447 451. 1 Inst 47. a. By the same Reason the Assignée of the Lease is not liable Again The Acceptance is not well pleaded for it is only Acceptaverunt Whereas a Corporation aggregate cannot accept but by Bayliff and an Acquittance must be given Saunders contra This is not a meer Sum in gross but in the nature of a Rent as is held in Valentine and Dentons Case 2 Cro. 111. If it were a sum in gross no Action could be brought until all the days of payment were incurred 1 Inst as upon a Bond to pay Money at several days Also the pleading of Acceptaverunt is good for it being such a Corporation as can accept necessary circumstances are ever implied as Livery in a Feoffment such a Corporation in an Assumpsit shall declare of a Promise made to them which yet must be by means of their Bayliff or Attorney The Court held this last Matter to be most doubtful And Twysden and Rainsford said it might be questioned whether after acceptance of the Assignée the Lessor might not resort to his Lessee for his Rent It is delivered in Walkers Case thus fuit dit not as a Resolution 3 Co. Et Adjurnatur Catterel versus Marshal ERror to Reverse a Judgment in an Assumpsit brought by Marshal in the Common-Pleas wherein he declared that he being sued in the Kings Bench retained Catterel for his Attorney who in Consideration of 30 s given him and that he would enter into a Bond with sufficient Penalty to save him harmless promised to get Bail filed for him and Avers that he did give him Bond with a great and sufficient Penalty c. The Defendant Pleads Non Assumpsit and found for the Plaintiff and he had his Iudgment Now it was assigned for Error that he did not express of what Penalty the Bond was that it might appear to the Court to be sufficient as if one avow for a
is where it is imposed for such things as are of common Right incident to its Jurisdiction as for Contempts or the like Yet where Custom only enables them to set a Fine it cannot be Distrained for without Custom also 11 Co. Godfrey's Case And to this Opinion did the Court incline Sed Adjornatur Anonymus TWo Actions of Account were removed into this Court by Habeas Corpus and Special Bail put in And it was moved that the Bail might be discharged and Common Bail filed because in an Account Special Bail is not to be put in But it was said the Plaintiff had declared in one in an Action upon the Case and so prayed that the Bail might stand quoad that But it was Ruled That the Bail should be discharged and if the Plaintiff would have Special Bail he must Arrest the Defendant again in an Action upon the Case Doctor Lee's Case DOctor Lee having Lands within the Level was made an Expenditor by the Commissioners of Sewers whereupon he prayed his Writ of Priviledge in this Court and it was granted For the Register is Vir militans Deo non implicetur saecularibus negotiis and the ancient Law is Quod Clerici non ponantur in Officia F.N.B. Clergy-men are not to serve in the Wars Jemey versus Norris ERror to Reverse a Judgment in an Assumpsit upon a Quantum meruit for divers things sold It was assigned for Error that the Declaration amongst the rest was for unum par Chirothecarum and did not express what sort of Gloves they were which are of much different prices according to the different Leather they are made of And Playter's Case 5 Co. was cited where Trespass for taking of his Fishes was held not good because not ascertainedb of what kind Sed non allocatur Another of the things declared for was una parcella fili which as it was said was utterly uncertain and that was held to be naught Tho' it was said an Action was brought for taking away unum cumulum Foeni Anglicè a Rick of Hay and not alledged how much it contained yet held good But in Webb and Washburn's Case an Action was brought for a pair of Hangings and it was Adjudged against the Plaintiff for the Incertainty Jones contra and cited a Case in this Court 24 Car. 1. Green and Green in Trover for six parcels of Lead and notwithstanding the Incertainty the Plaintiff had Judgment So in Trover for a Trunk de diversis Vestimentis and did not say what Garments and yet held good But admitting it should not be good in Trover yet it is well in this Action 'T is the Common course to declare sur Indebitatus pro mercimoniis and never express what they are And the Court were of Opinion that the Plaintiff was to have Judgment for it is an Action much of the same nature with an Indebitatus And Twisden said Where the Promise is to pay Quantum meruit he knew not why the Plaintiff might not declare upon an Indebitatus in a certain Sum and that he might prove the value upon the Evidence and if such a Case came to be tried before him he would have a Special Verdict found in it The Court said Such an uncertain Declaration would hardly be good in Trover or Replevin and held the Case of the six Parcels to be strange and for the Trunk that an Action lies for that the things contained in it were alledged but as matter of aggravation of Damages Vid. the Case of Taylour and Wells ante Trover de decem paribus velorum tegularum Anglicè Ten pair of Curtains and Vallance Wilson versus Armorer IN Debt against the Heir and Reins per discent pleaded the Case upon Special Verdict was thus The Ancestor made a Feoffment of a Mannor to divers uses excepting two Closes for the Life of the Feoffor only and whether those two Closes did discend was the Point referred to the Iudgment of the Court. And it was Adjudged That they did discend either for that the Exception was good tho' the latter part of the Sentence viz. for the Life of the Feoffor only was void and therefore to be rejected or if the whole Exception were void because one intire Sentence Yet they all agreed that there was no Vse limited of those two Closes which were intended to be excepted for the Vse was limited of the Mannor exceptis praeexceptis which excluded the two Acres For altho' there were not sufficient words to except them yet there was enough to declare the intention of the Feoffor to be so Anonymus AN Indictment for Erecting of a Cottage for Habitation contra Statut ' 31 Eliz. cap. 7. was quashed because it was not said that any had inhabited in it for 't is no Offence before per Rainsford Moreton caeteris absentibus Termino Sancti Hillarij Anno 22 23 Car. II. In Banco Regis Robson's Case A Prohibition was prayed to a Suit for Tythes by the Parson upon a Suggestion of a Modus paid to the Vicar and that the Vicaridge had time out of mind been Endowed Coleman moved for a Consultation because the Endowment of the Vicaridge was not proved by two Witnesses within six Months according to the Statute But it was denyed for that part of the Suggestion is not to be proved by Witnesses but only the payment of the Modus And it was said If the Suggestion consisted of two parts it was sufficient to produce one Witness to the one and another to the other Dacon's Case DAcon was presented in the Court Leet for refusing the Office of Constable and Fined It was moved to quash it because it expressed the Court to be held infra unum mensem Sancti Michael ' viz. 12 November and so the Day shewn above a Month after Michaelmas And it is necessary to set down the precise Day for it may else be upon a Sunday and yet within a Month after Michaelmas and for this cause the Court held that it must be quashed Error AN Outlawry was Reversed for that the Proclamations were Returned to be ad comitat ' meum tent ' apud such a place in Com' praedict ' and not said pro Comitatu For anciently one Sheriff had two or three Counties and might hold the Court in one County for another Calthorpe versus .... IN Debt for Rent the Plaintiff declared that he let the Defendant such Land anno 16 of the King quamdiu ambabus partibus placeret and that anno 16 the Defendant entred and occupied it pro uno anno tunc proximê sequent ' and because the Rent was behind pro praedict ' anno finit ' 18 he brought the Action Vpon which it was Demurred Because the Rent is demanded for the Year ending 18 and it is not shewn that the Defendant enjoyed the Land longer than anno 17. And in Debt for Rent upon a Lease at Will Occupation of the Tenant must be averred To which it was Answered That it is said
upon that Attainder was penned as amply as this of 12 Car. and the Case of Warner and Harding Latch 25. is very like this W. Shelley enfeoffed divers to the use of himself for Life and afterwards to divers others upon Condition that if a Ring were delivered by the said William Shelley declaring that he intended those uses should be void that then c. it was resolved that nothing was forfeited but during his Life Rainsford I shall speak nothing to the Fraud because that is a pure matter of Fact which is to be found by the Jury and cannot in any Case be presumed by the Court. I am of Opinion that the Judgment ought to be affirmed The power of altering the Trusts reserved by the first Proviso is inseparable from the person of Simon Maine for it is to be by his Will in Moor 193. the Lord Pagetts Case It is resolved that inseparable Powers are not forfeited upon like words as are in this Act and so the second Proviso limits to him a double Power First Of revoking the old Trusts Secondly Of limiting new But this is to be done by Writing under his Hand and Seal in the presence of two Witnesses so the performance of this also is personal The D. of Norfolks Case is the very same unless for that it is there under his proper Hand and Seal and here under his Hand and Seal which certainly is all one But admitting this Power were forfeited yet it is not found that ever it was executed after it come to the King which must be before any Estate could come to the King therefore in Englefields Case it was found that a Ring was tendred in the behalf of the Queen And whereas it was objected That he had jus disponendi and therefore might Forfeit as a Man shall a Term which he hath in right of his Wife as Dame Hale's Case in Plowden is resolved I answer That here he hath not jus disponendi but rather potestatem disponendi but that is qualified and to be executed by certain Circumstances which must be performed to give it effect Twisden As to the Fraud I cannot see how the Jury could have found this fraudulent Settlement made to prevent a Forfeiture enacted by Parliament 20 years after which surely could not be without the Spirit of Prophecy I am of the same Opinion as to the matter with my two Brothers That Simon Maine had only a Trust in him during his own Life and if he had brought a Bill in Equity he could have had the Estate executed no further and therefore can Forfeit no more by this Act and it is not always that a Man that hath power over Land hath a Trust as we may sée in Cranmers Case Dier 308 309. there were as large words in the Act of his Attainder as here Indeed the Argument in Englefields Case 7 Co. rules this for if a Trust had béen implied in the power of Revocation they néeded to have argued that it should have been forfeited as a Condition so the D. of Norfolks Case for tho' the word Use is in that Act and not Trust as in this yet it makes no difference for an Use was then the same with what a Trust is now and tho' the word Power had béen in this Act yet there should have béen no Forfeiture in this case because the Execution of it is so personal and individual Neither is there found that ever there was any Execution and at most the Forfeiture could only be of what was in Simon Maine neither can Smith Execute it by virtue of his Grant from the King for the Kings Patent conveys nothing by implication and shall never work to a double intent Hale Chief Justice of the same Opinion First Crooke is a good Lessor for the other Trustees disagréement makes the Estate wholly his Secondly For the Circumstances of Fraud they are not material to be considered Thirdly The Trust is wholly disposed of after the Death of Simon Main so that he had nothing but during his Life Fourthly Then what is operated by the Attainder Why the Trust during Life is forfeited Vid. the E. of Somerset's Case Hob. 214. 2 Cro. 512. But then this Trust must have béen executed by the Court of Revenue 'T is true the Act doth not only give the Trust but the Term it self to the King that is during the Life of Simon Maine so that by this Act so much of the Term is drawn out of the Trustees as served the Trust which S. M. had but leaves the residue of the Term to serve the other Trusts so that the possibility of the Term returns to the Trustees after the Death of S. M. and this appears by the body of the Act. Also this appears by the saving in the Act. The first saving which saves all the Conveyances made by the Feoffor before the 29 of Sept. 1659. indeed might not help because Conveyances made to the Wives Children or Heirs are therein excepted But there the other Proviso saves the Right Interest c. of all persons whatsoever doth in Law and Equity not derived form the offenders since 25 Mar. 1646. and therein the Interest of Wife or Children and all are saved now this Estate was created before viz. 1643. I come now to the Provisoes The first Proviso determins nothing till the time of Simon Maine's Death and consequently this can revest no more to M. than he had before For the Condition is in expectation till he have a Son living at the time of his Death why then by this there comes nothing to S.M. so much as in point of Execution during his Life By his Will he might have limitted new Uses but he made none and 't is personal No other Man can make his Will Why then all stands as it did and nothing is made void till the time of his Death and then all is immediately executed to the Son by force of the first Conveyance But if the Proviso had béen That if S.M. had a Son there all had revested in S. M. and might have béen forfeited The last Proviso doth not create a Trust to him for if he had not béen Attainted the Trust should not have gon to his Executors c. No it creates a personal power of fetching back the former and declaring new Trusts observing the circumstances upon the same reason that this Estate can be forfeited a bare Executor I mean without a Devise of the residue might forfeit his Estate this is a Power yea and 't is a manacled Power it is a kind of Trust that he may revoke The D. of Norfolks Case is the same with this So Harding and Warners Case which was adjudged in C. Banco tho' there there were two to two and it was confessed by the Kings Attorney in Scaccario and the Kings Attorney doth not use to confess Judgment in Cases of great moment without consultation with the Judges This power was not nor could be passed to the
Defendant pleaded that the place Where was the Freehold of Sir Thomas Hooke and that by his Command he entred The Plaintiff traverseth That it was the Freehold of Sir T.H. And thereupon this Special Verdict was found That Nicholas Heale was seised in Fee and that 16 Dec. 1640. he made a Deed to Jane Heale Enrolled within six Months by which the said Nicholas did for and in Consideration of Natural Love augmentation of her Portion and preferment of her in Marriage and other good and valuable Considerations give grant bargain sell alien enfeoff and confirm unto the said Jane Heale and her Heirs Then they found there was a Covenant that the said Jane Heale should after due Execution c. quietly enjoy c. and also a special Clause of Warranty And that the Deed was Enrolled within six Months and that there was no other Consideration of making the Indenture than what was expressed And if it were sufficient to convey the Premisses to the said Jane they found for the Plaintiff if not for the Defendant And it was Argued by Winnington for the Plaintiff He agreed that it could not take the effect as a Bargain and Sale because no Money was paid but Argued that the Deed should enure as a Covenant to stand seized It is a Ground in the Law that the intention of the parties ought to guide the raising of Uses and the Construction how they shall enure Co. Lit. 49. Rolls 2d part 789. and to give the effect the words shall be disposed to other Construction than what otherwise they would import As if a man demises grants and to Farm-lets certain Lands in Consideration of Money and the Deed is Enrolled this is a good Bargain and Sale So if a man Covenants in Consideration of Money to stand seised to the use of his Son 8 Co. 93. Foxes Case 2 Rolls 789. it is said Nota per Cur ' if it appears that it was the Intent of him that made the Deed to pass the Estate according to Rules of Law it shall pass though there be not formal Words Again the Consideration expressed in this Deed is purely applicable to a Covenant to stand seised and a Deed shall enure upon the Consideration expressed rather than upon one that is implied As in Bedell's Case 7 Co. 40. If the Father in Consideration of 100 l paid Covenants to stand seised to the use of his Son and the Deed is not Enrolled nothing shall pass But where there are two Considerations expressed there the Vse may arise upon either As if the Father in Consideration of Blood and 100 l paid by the Son Covenants to stand seised c. and the Deed is not Enrolled yet the Vse shall arise as upon a Covenant to stand seised Pl. Com. 305. And so it was Adjudged between Watson and Dicks in the Common Pleas 1656. The Father by Deed in Consideration of Love and 100 l paid by the Son conveyed Land to him with a Letter of Attorney in the Deed to make Livery in that case the Son hath his election to take by the Enrolment or Livery which shall be first Executed 2 Rolls 787. pl. 25. But it hath been Objected here that there is a Clause of Warranty in the Deed which shews that the parties intended a Conveyance at the Common Law for if it enure by way of Covenant to stand seised the Warranty can have no effect but to Rebut Also there is a Covenant for quiet Enjoyment after Sealing and Delivery of the Deed and due Execution of the same which shews the parties had a prospect of Executing it by Livery c. To which he Answered That such remote Implications as those shall never make a Deed void against an express Consideration upon the which an Use may arise 'T is true if there had been a Letter of Attorney in the Deed it might have been void unless Livery had followed As if the Father by Deed grants Land to the Son and a Letter of Attorney in it to make Livery if none be made nothing passes Co. Lit. 49. a. The Authorities which have been cited on the other side are first Pitfields and Pierce's Case 2 Roll. 789. where the Father by Deed Poll in Consideration of Blood did give grant c. as in our Case to his Son Habend ' after his decease and a Proviso in it That the Son should pay a Rent during the Father's Life It was Adjudged That the Lands should not pass in that Case by way of Covenant to stand seised But in that Case the Conveyance was repugnant to the Rules of Law for that it was Habend ' the Land after the death of the Grantor and also repugnant in it self For notwithstanding that it reserves the Land to the Father during his Life yet it provides for a payment of Rent to him wherefore the Law would not help out a Deed so contradictory and repugnant by way of raising an Vse The other Case relied upon is between Foster and Foster Hill 13. of this King in this Court in Ejectment The Case was The Mother for divers good Considerations and 20 l paid did by a Deed which was Entituled Articles of Agreement demise grant bargain sell assign and set over to the Son and his Heirs for ever certain Lands the said Margery the Mother quietly enjoying the Premisses during her Life The Court Resolved that it should not amount to a Covenant to stand seised for they were but intended as Articles of Agreement and preparatory for a further Conveyance So the Case differs very much from ours as also that it reserves the Land to the Mother during her Life The Case also of Osborn and Bradshaw in 2 Cro. 127. hath been cited Where the Father in Consideration of Love which he hears to his Son and for Natural affection to him bargained and sold gave granted and confirmed Land to him and his Heirs the Deed was Enrolled It was held the Land should not pass unless Money had been paid or the Estate executed This Case cannot be urged as any great Authority for it appears that the Son was in possession Therefore the Court Adjudged that the Deed should be a Confirmation and it being clear that way they had not much occasion to insist upon or debate the other Point And he relied upon Debb and Peplewell's Case as an Authority in the Point 2 Rolls 78. 6. where there was a Clause of Warranty in the Deed and an Enrolment within six Months as in the Case at Bar But they Resolved there If a Letter of Attorney had been in the Deed it should not have been construed a Covenant to stand seised and therefore he prayed Judgment for the Plaintiff Finch Attorney General contra The Lands here cannot pass by Bargain and Sale there being no Money paid which I find is admitted by the other side neither shall it amount to a Covenant to stand seised There are Five things necessary to raise an Use by way of Covenant
to Bernard to make his Wife a Joynture it shews that it was intended he should have but an Estate for Life which needed such a Power and not an Estate Tail for then he might have made a Joynture without it I Answer That Tenant in Tail cannot by virtue of such Estate make a Joynture without discontinuing or destroying his Estate Sed Judicium pro Quer ' There being Justice Twisden and Justice Rainsford against the Chief Justice Termino Sancti Hillarij Anno 24 25 Car. II. In Banco Regis Anonymus A Prohibition was prayed to the Ecclesiastical Court for that they Cited one out of the Diocess to Answer a Suit for a Legacy But it was denied because it was in the Court where the Probat of the Will was For tho' it were before Commissioners appointed for the Probat of Wills in the late Times yet now all their Proceedings in such cases are transmitted into the Prerogative Court And therefore Suits for the Legacies contained in such Wills ought to be in the Archbishop's Court for there the Executor must give account and be discharged c. Note When a man is in custodia Marescalli any man may Declare against him in a Personal Action and if he be bailed out he is still in custodia to this purpose viz. quoad Declarations brought in against him that Term For the Bail are as it were Delegated by the Court to have him in Prison Hob. Error is not well assigned That there was no Bail filed unless added That the Defendant was not in custodia Debt IN an Action of Debt upon a Sheriffs Bond the Case was this A man was Arrested upon a Latitat in placito Transgr ' ac etiam bille pro 40 l de debito And the Condition of the Bond given to the Sheriff was to appear at the Day of the Return of the Writ to answer to the Plaint in plito debito And it was urged that this made the Bond void by the Statute of 23 H. 6. for the Condition should have been to Appear at the Day to Answer in the Action upon which the Process went out and that was in this Case but an Action of Trespass and the adding the Ac etiam debiti c. is but to satisfie the late Act and for Direction to the Sheriff to what Value he shall require Bail And it was usual to Endorse the Cause of Action before the Statute upon the Latitats that the Sheriff might insist upon Bail accordingly So this is a material Variance from the Statute and not like some of these which are remembred in Beaufage's Case in the 10 Co. and Dyer 364. And to this the Court inclined And Hale Cited a Case between Button and Low adjudged Mich. 1649. An Attachment went out of Chancery to answer Coram nobis in Cancellaria ubicunque c. and the Sheriff took a Bond Conditioned to Appear Coram Rege in Cancellaria ubicunque c. apud Westmonasterium And for the addition of Westminster the Bond was held to be void Anonymus THe Court was moved for a Prohibition to the Archbishop's Court to stop their Proceedings in a Cause belonging to the Jurisdiction of Durham upon a Suggestion that the Dean and Chapter of Durham Sede vacante have Cognizance there as Guardians of the Spiritualties And the Court granted a Prohibition for the Right of Jurisdiction was tryed between the Archbishop and Dean and Chapter the last Term and found against the Archbishop and therefore he was concluded by the Verdict until the Record was reversed by Error or Attaint Thodie's Case THody and two others were Indicted for that Conspiratione inter eos habita they enticed J. S. to play and cheated him with False Dice Thody pleaded and was found Guilty the others not having pleaded It was moved that Judgment might not be Entred against him until the others came in for being laid by way of Conspiracy if the rest should chance to be acquitted no Judgment could be given against him And so is 14 H. 6. 25. Hale said If one be Acquitted in an Action of Conspiracy the other cannot be Guilty But where one is found Guilty and the other comes not in upon Process or if he dies hanging the Suit yet Judgment shall be upon the Verdict against the other And so is 18 E. 3. 1. and 24 E. 3. 34. Wild said The difference was where the Suit was upon Conspiracy wherein the Villanous Judgment was to be given and where the Conspiracy is laid only by way of Aggravation as in this Case Hale said It would be the same in an Action against two upon the Case for Conspiracy but not in such Actions where tho' there be a Charge of Conspiracy yet the Gift of the Action is upon another matter But the Court said They would give him two or three days for the bringing in of the other two and defer the Entry of the Judgment in the mean time Methyn versus the Hundred of Thistleworth THe Case was moved again by North Solicitor He urgrd for the Plaintiff That the Issue being Whether they took the Felon upon Fresh Suit It being not found that there was any actual Taking or that the Fresh Suit continued until Sir J. Ash found the Felon in the presence of Sir P. Warwick Also it was found that Sir J. Ash was a Justice of Peace and therefore it was his duty to Apprehend him To this it was Answered That the Statute of Winton upon which the Action is founded and not upon the 27 of Eliz. and therefore it is ill if it concludes contra formam Statutorum doth not say shall Take but shall Answer the Bodies of the Offenders which is Answer them to Justice And therefore if the Felon be taken upon another account and the Country finding him in Prison cause him to be Indicted this satisfies the Statute Goldsb 55. Again it was more decent for Sir John Ash being concerned as an Inhabitant of the Hundred to leave this Matter to the other Justice of the Peace for it has been known that Justices of the Peace have been Censured in the Star-Chamber for being too forward to interpose in their own business But if it were an omission of the Duty of his Office that could not be Objected to him as an Inhabitant having done enough to satisfie the Statute of Winton Wild said That the Defendant should have Demurred because the Issue is ill joyned viz. absque hoc that he took him super eadem recenti insecutione For if he were not immediately taken upon Fresh pursuit it were sufficient but the Verdict finding Fresh Suit was made it may be taken by Intendment which shall help out a Special Verdict that it was directed this way and continued until the finding of him in the presence of Sir P. Warwicke Et sic Judicium pro Def. Ante. Dacres versus Duncomb IN Trover after Imparlance the Defendant pleaded That the Plaintiff with two others brought Trover for the
five years pass Whether the Lessor should have five years after the Term expired was the question and after the hearing of Arguments the Court resolved that he should as well as when Lessee for Life levies a Fine which differs not in reason from this Case for there the Lessor may have his Writ de consimili casu presently as here he may bring his Assize And though in 9 Co. Podgers Case 'T is said that where Lessee for years is ousted by a Disseisor who levies a Fine if five years pass without claim the Lessor is barred that is not the same with this Case for the Disseissor comes in without the consent of the Lessee and of his own wrong and if he can defend his Possession five years he shall hold it but here all is done with the privity and by the means of the Lessee who is trusted with the Possession and it would be of most mischievous import to Mens Inheritances if they should not have five years after the Lease ended and it being put of a Disseisin in Podger's Case seems to imply the contrary in other Cases and tho' there were many notorious Circumstances of fraud in Fermours Case which Co. in his report of it lays much weight upon yet it does not thence follow that the Law is not the same where there are not such evidences of fraud In other Books where that case is reported the resolution does not seem to go so much upon the particularities of the Fraud 'T is Fraud apparent in the Lessee Wilston versus Pilkney IN Debt for Rent the Plaintiff declared that the Dean and Chapter of c. demised to the Defendant for Life by force of which he entred and demised the Land to the Plaintiff for years by virtue of which he was possessed and afterward granted to the Defendant reserving a Rent for which he brings his Action To this Declaration the Defendant Demurrs First Because he doth not say of the Deans Demise hic in Curia prolat ' which Demise must be by Deed. Secondly He says that the Defendant entred by force thereof which is impertinent to be alledged upon a Lease for Life because Livery implies it Thirdly As to the matter that the Reservation was void it being upon a surrender by Parol A Rent cannot be reserved upon a Feoffment by Parol so where Lessee for life or years assigns over his whole interest 12 H. 4. 14. 9 H. 6. 43. 12 H. 4. 17. also no Rent can be reserved upon a Conveyance that works an Extinguishment unless by Deed where it is good upon the contract Peto's Case 3 Cro. 101. is that a Surrender drowns the interest to all intents and purposes between the Parties Dier 251. The Tenant for Life agreed with him in Reversion that he should have his Land for the Annual Rent of 20 s 't is doubted there whether this amounts to a Surrender there being no Deed or Livery But in 2 Rolls 497. 't is said if it had been a Surrender the reservation had béen void Hale I do most doubt of the first exception because the Deed was not produced And for the second it were better pleading to have said by force of which he was seized but that 's not of necessity And as to the matter the Court resolved for the Plaintiff For 1. The Reservation was good by the contract tho' without Deed. And so it was adjudged in this Court in Manly's Case that Tenant for years might assign his whole Term by Parol rendring Rent so in the Case of Purcas and Owen 23 Car. But it was doubted whether an Action would lye until the last day were past 'T is all one where the Grant is made to him in Reversion which is not actually but consequentially a Surrender by operation of Law before which the contract is perfected upon which the Rent arises 7 E. 4. is that the Lessee may Surrender upon Condition and there is no reason why a Rent cannot be created upon it as well as a Condition If it were in the case of Tenant for Life a Deed were requisite as well for a Rent as a Condition in respect of the Freehold but that is not so in case of Tenant for years Vide Postea Cartwright and Pinkney Termino Sanctae Trinitatis Anno 25 Car. II. In Banco Regis Hanslap versus Cater IN Error upon a Judgment in the Court of Coventry where the Plaintiff Cater declared That the Defendant being indebted to him infra Jurisdictionem Curiae pro diversis Bonis Mercimoniis ante tunc venditis deliberatis did then and there assume c. Vpon Non Assumpsit pleaded and a Verdict and Judgment for the Plaintiff the Error assigned was That the Goods were not alledged to be sold within the Jurisdiction of the Court. Hale and Wild seemed to be of Opinion that it was well enough the being indebted and the promise being laid to be within the Jurisdiction Twisden Contra and said he had known many Judgments reversed for the same Cause It being moved again this Term Hale consented that it should be reversed according as the latter Presidents have been for he said it was his Rule Stare decisis Parsons and Muden Pasch 22. Car. 2. Rot. out of Barnstaple Court John Brown's Case HE was indicted upon the Statute of 3 H. 7. cap. 2. for the forcible taking away and marrying of one Lucy Ramsy of the Age of fourteen years having to her Portion 5000 l He was tried at the Bar and the fact appeared upon the Evidence to be thus She was inveigled into Hide Park by one Mrs. P. confederate with Brown who had prepared a Coach for that purpose to take the Air in an Evening about the latter end of May last and being in the Park the Coachman drove away from the rest of the company which gave opportunity to Brown who came to the Coach side in a Vizar-mask and addressing himself first to Mrs. P. soon perswaded her out of the Coach and then pulls out a Maid servant there attending Mrs. Ramsy and then gets himself into the Coach and there detains her until the Coachman carried them to his Lodgings in the Strand where the next Morning he prevails upon her having first threatned to carry her beyond Sea if she refused to Marry him but was the same day apprehended in the same House It was a first doubted whether the Evidence of Lucy Ramsy was to be admitted because she was his Wife de facto tho' not de jure But the Court seriatim delivered their Opinions that she was to be admitted a Witness First For that there was one continuing force upon her from the beginning till the Marriage wherefore whatsoever was done while she was under that violence was not to be respected Secondly As such Cases are generally contrived so hainous a Crime would go unpuished unless the Testimony of the Woman should be received Thirdly In Fulwoods Case reported in 1 Cro. which was read in the
Court the Woman was a Witness tho' married as here and Rainsford cited my Lord Castlehavens Case where the Countess gave Evidence that he assisted the committing a Rape upon her But Hale said he was not governed by that case because there was a Wife de jure the Evidence being clear as to all the Points of the Statute viz. First That the taking was by force Secondly That the Woman had substance according to the Statute Thirdly That Marriage ensued tho' it did not appear she was deflowred the Jury found him guilty Whereupon Judgment was given and he was hanged Note 39 Eliz. cap. 9. takes away Clergy from this Offence Bayly versus Murin IN an Ejectment upon a Special Verdict the Case was to this effect One Cooper Vicar of Granbrook in Kent being seized of an House and Lands thereunto appertaining parcel of the Endowment of his Vicaridge situate in a Market Town in the year 1672 lets it for three years and one year of the said Lease being expired the 11 of Sept. 1673. lets it for 21 years to begin from Michaelmas following reserving the Rent during the Term payable at the usual Feasts or within ten days after this Lease was confirmed by the Archbishop Patron of the Vicarage and Dean and Chapter of Canterbury Some years after Cooper dies and the Question was Whether Buck the succeeding Vicar could avoid this Lease The first Point was Whether the Lease became void within 80 Days after the death of Cooper by the Statute of Non-residence 13 Eliz. 20. And as to that all the Justices were of Opinion that Death would not make such a Non-residence as should avoid the Lease for the Intention of the Statute was to oblige the Incumbents to Residence First By imposing of the Forfeiture of a years Value of their Benefice if they did not Reside Secondly By making their Leases void which tho' prima facie seemed to be to their advantage yet was not so in the consequence for none would be induced to Farm their Lands because it was in their power to defeat their Leases by Non residence Again 'T is plain the Statute meant a Wilful Absence because it says The party so offending the Statute of the 13th of Eliz. that allows Leases of Houses c. in Market Towns for 40 years would be of no effect if Death should be interpreted a Non-residence and the Confirmation of Patron and Ordinary would be to no purpose Butler and Goodale's Case in the 6 Co. 21. b. is that where the Incumbent is absent upon an Inhibition or for the sake of his Health he is not within the Penalty of that Law There is only one single Authority against this viz. Mott and Hale's Case in the 1 Cro. 123. which Twisden doubted whether it were so adjudged because my Lord Coke mentions it no where supposing so Notable a Point would not have escaped his Observation especially in a Case wherein he was Counsel But Hale said It was Adjudged by the Opinion of three Judges tho' in Moor 't is said the Court was Divided but it was a hard Opinion And in the 38th of Eliz. B.R. Moor 609. the very Point was adjudged contrary The second Point Whether it were void because the Rent was reserved at the usual Feasts or within Ten days after For it was urged that the Term ending at Michaelmas would be expired before the last Payment And for the other payments 't is for the Successor's advantage because the Predecessor may dye within the Ten days But the Court were clear of Opinion in regard the Reservation was during the Term that there should be no Ten days given to the Lessee for the last payment according to Barwicke and Foster's Case in the 2 Cro. 227 233. The third point Whether this were a Lease in Reversion and so not warranted by the Statute of the 14 of Elizabeth And all the Court held that it was This Statute repeats that of the 13th of Eliz. as to Houses in Market Towns which Liberty was given as Twisden said to render those places more populous but excepts Leases in Reversion which this is being to commence at a Day to come where a Power is annexed to an Estate for Life to make Leases in possession A man cannot make a Lease to commence in futuro In the 6 Co. Fitz William's Case 4 E. 3. tit Waste 18. the Lessor made a Lease to commence after the death of the Tenant for Life and notwithstanding maintained an Action of Waste And Co. Lit. citing that Case distinguishes between a Grant of the Reversion and a Lease in Reversion as that Case was In Plowden's Commentaries Tracy's Case A Lease made to commence at a Day to come is given as a most proper Instance of a Lease in Reversion In the 1 Cro. 546. Hunt and Singleton's Case a Lease of an House for 40 years there being 10 years unexpired of a former Lease by the Dean and Chapter of St. Pauls was held not warranted by the 14th of Eliz. The like was Resolved in C. B. 14 Car. 2. in the Case of Wyn and Wild of a Lease of the Dean and Chapter of Westminster and there the Court denied the Opinion in Tomson and Trafford's Case Poph. 9. And two of the Judges seemed to be of Opinion and Twisden strongly that if the Lease in the Case at Bar had been made to commence presently it yet would have been void there being another Lease in being so that for so many years as were to come of the former Lease it would be a Lease in Reversion And that the 18th of Eliz. that permits a concurrent Lease so that there be not above three years in being shall not in their Opinion make any alteration of the 14th of Eliz. but it only extends to the 13th of Eliz. because it recites that but not the former And so is the Opinion of Hobart in the Case of Crane and Taylour 269. and it hath been often held that it does not extend to the Statute of 1 Eliz. concerning Bishops But of this Hale doubted and rather conceived the contrary viz. That the Lease had been good if it had been made to commence presently there being less than three years to come of the former Lease And that of the 18 of Eliz. did give a qualification to Leases made upon the 14th as well as the 13th First Because the 14 of Eliz. is a kind of an Appendix to the 13th of Eliz. and does not repeat it but sub modo a little enlarging it as to Houses in Market Towns Wherefore the 18th of Eliz. reciting the 13th does by consequence recite the 14th also Secondly There is such a Connexion betwixt all the Statutes concerning Leases of Ecclesiastical persons that they have been taken into the Construction of one another The Statute of the 32d of H. 8. is not recited neither in the 1st or the 13th of Eliz. yet a Lease is not warranted upon those Statutes unless it hath the Qualifications
c. be indicted for not repairing of a Way within their Precinct they cannot plead Not guilty and give in Evidence that another by Prescription or Tenure ought to repair it for they are chargeable de communi Jure and if they would discharge themselves by laying it elsewhere it must be pleaded Error ERror to Reverse a Judgment in Debt upon a Bond given in Norwich Court where by the Custom the plea of the Defendant was quod non dedicit factum sed petit quod inquiratur de debito First It was moved to be Error for that the Venire was XII Men c. in figures Sed non allocatur for being in these letters XII and not in the figures 12. it was well enough Secondly It was ad triandum exi tum whereas there was no Issue joyned wherefore it ought to have been ad inquirend ' de debito c. Sed non allocatur for the Presidents are as the Case is here Thirdly The Condition of the Bond was to pay at Alborough and that ought to have been shewn to be within the Jurisdiction of the Court Sed non allocatur for the Plea here is not payment secund ' formam Conditionis but the Jury is to inquire by the custom of all manner of payments and discharges Fourthly In the Record it was continued over to several Courts and in the Court where the Judgment is given 't is said in Curia praedicta and so incertain which but notwithstanding these matters the Iudgment was affirmed Anonymus THe Case upon Evidence at a Tryal in Ejectment was this a Dean and Chapter having a right to certain Land but being out of Possession Sealed a Lease with a Letter of Attorney to deliver it upon the Land which was done accordingly and held to be a good Lease for tho' the putting the Seal of a Corporation aggregate to a Deed carries with it a delivery yet the Letter of Attorney to deliver it upon the Land shall suspend the operation of it while then Tenant for Life being in Debt to defraud his Creditors commits a Forfeiture to the end that he in Reversion may enter who is made privy to the contrivance The Opinion of Hale was that the Creditors should avoid this as well as any fraudulent Conveyance Anonymus IN an Ejectment upon a Tryal at Bar for Lands in antient Demesne there was shewn a Recovery in the Court of antient Demesne to cut off an Entail which had been suffered a long time since and the Possession had gone accordingly But there was now objected against it First That no sufficient Evidence of it appeared because the Recovery it self nor a Copy of it was shewn for in truth it was lost But the Court did admit other proof of it to be sufficient and said if a Record be lost it may be proved to a Jury by Testimony as the Decree in H. 8. time for Tythe in London is lost yet it hath been often allowed that there was one Secondly It appeared that a part of the Land was leased for Life and the Recovery with a single Voucher was suffered by him in Reversion and so no Tenant to the Praecipe for those Lands But in regard the Possession had followed it for so long time the Court said they would presume a Surrender as in an Appropriation of great Antiquity there has been presumed a Licence tho' none appeared Thirdly It was objected That the Tenant in Tail which suffered the Recovery having first accepted of a Fine sur Conusans de droit come ceo his Estate Tail was changed for he was estopped during his Life to say that he had any other Estate than Fee then he being made Tenant to the Praecipe the Recovery was not of the Estate Tail and so should not bind But the Court held clearly that the acceptance of this Fine made no alteration of his Estate If Tenant for Life accepts such a Fine 't is a Forfeiture because he admits the Reversion to be in a Stranger but it does not change his Estate so where two Joynt-tenants in Fee accept a Fine which is to the Heirs of one of them yet they continue Joynt-tenants in Fee as they were before Fourthly The Writ of Right Close did express the Land to lie in such a Mannor and a Praecipe that demands Land ought to mention the Vill in which they lie for a Praecipe of Land in Parochia or in Manerio is not good But this exception was disallowed by the Court for Hale said the Writ of Right Close is directed Ballivis Manerij c. quod plenum rectum teneant of the Land within the Precinct of the Mannor and it is not to be resembled to another Praecipe But if a Praecipe be faulty in that Point unless exception be taken to it in Abatement it cannot be assigned for Error but if it were Erroneous the Recovery would bind until reversed Note After Judgment quod computet tho' it be not the final Judgment yet no motion is to be admitted in Arrest of Judgment and after such Judgment a Scire facias lies against the Executor of the Defendant Note In an Action of Debt against the Lessee he may plead nil debet and give the expulsion in Evidence Anonymus IN an Assumpsit the consideration appeared to be that the Defendant promised to pay a Sum of Money which he owed this is no good consideration tho' after a Verdict unless it appeared that the Debt was become remediless by the Statute of Limitations but payment of a Debt without Suit is a good consideration Anonymus A Justice of the Peace brought an Action of Slander for that the Defendant said He was not worth a Groat and that he was gone to the Dogs and upon motion in Arrest of Judgment notwithstanding that it was urged to maintain it that the Statute of H. 6. requires that a Justice of Peace should have 40 l a year And therefore in regard an Estate was necessary to his Office that the Action would lie yet the Judgment was stayed for such words will not bear an Action unless the person of whom they are spoken lives by buying and selling Anonymus IT was returned upon Elegit that the Sheriff had delivered medietatem Terrar ' Tenementorum in extent and after the Filing and Entry of it upon the Record the Plaintiff moved to quash it because it was insufficient for the Sheriff ought upon such Execution to deliver the Possession by Metes and Bounds Wild held that it being entred upon the Record there was no avoiding of it but by Writ of Error But Hale held that in regard it appeared by the Record to be void it might be quashed as if upon an Ejectment to recover Possession upon such a return it appears upon the Evidence that there was more than the half the Land delivered this shall be avoided So if a Fieri facias be not warranted by the Judgment upon which it is awarded tho' the Sheriff shall be
own Wrong as to enforce the Lessee to pay any thing for the residue Otherwise of a Rightful Entry into part as in the Case at Bar. 'T is true in Ascough's Case in the 9 Co. 't is said a Rent cannot be suspended in part and in esse for part And so in the 4 Co. Rawlin's Case it is held That the whole Rent is suspended where part is Redemised to the Lessor But the Court observed that the Resolution of that Point was not necessary to the Judgment given in that Case which was upon the Extinguishment of the Condition which is entire and not to be apportioned But as to the Rent no Book was found to warrant such an Opinion but Brook tit Extinguishment 48. where 't is said If there be Lord and Tenant by three Acres and the Tenant lets one to the Lord for years the whole Rent is suspended This Case is not found in the Book at large An in 7 Ed. 3. 56 57. where a Formedon was brought of a Rent-Service issuing out of three Acres and as to one Acre it was pleaded that the Demandant himself was Sole seised and concluded Judgment of the Writ But it was Ruled to be a Plea to the Action for so much and to the rest the Tenant must answer which is a full Authority that in such case the Rent is to be apportioned And the Case of Dorrell and Andrews Rolls tit Extinguishment 938. is full in the Point That where Lessee for years let ts at Will which Lessee Licenses the Lessor to enter that the Entry of the Lessor thereupon shall not suspend his Rent For Hale said Tho' it might be Objected that in regard the Lessee at Will cannot lett the Entry of the Lessor thereupon might be a Disseisin but that is ever at the Election of the Lessor And if that were now the Question perhaps the Lessor cannot take such an Entry for a Desseisin It is the Common Experience that where it comes to be tryed upon Nil debet if it be shewn that the Lessor entred into part to Answer this by proving it was the Lease of the Lessee and if the Law should not go upon this difference it would shake abundance of Rents it being a frequent thing for a Lessor to Hire a Room or other part of the thing demised for his Conveniency Hale said That a Case of a Lease for years was stronger than a Lease for Life where the remedy is by Assize and the Tenants of the Land out of which the Rent issues are to be named And for a Condition that must be extinct where part of the thing Demised comes to the Lessor because 't is annexed to such a Rent in quantity For if the Rent be diminished the Condition must fail Holland versus Ellis IN Trespass Quare clausum fregit herbas conculc ' diversas carectat ' tritici ibid ' asportavit After Verdict it was moved in Arrest of Judgment that the Declaration did not mention whose the Loads of Wheat were for it was not ibid. crescent ' Adjornatur Resolved per Cur ' That an Inquisition before the Coroner taken super visum corporis that finds that the Person was Felo de se non compos mentis may be traversed But the fugam fecit in an Inquisition before the Coroner cannot be traversed Termino Sancti Hillarij Anno 27 28 Car. II. In Banco Regis The Earl of Leicesters Case IN an Ejectment upon a Special Verdict the Case was to this effect Robert Earl of Leicester in the .. of Eliz. levied a Fine of the Lands in question to the use of the Earl of Pembrook and his Heirs for payment of his Debts reserving a Power to himself to Revoke by any Writing Indented or by his last Will subscribed with his Hand and sealed with his Seal And sometime after he Covenants by a Writing Sealed and Subscribed as aforesaid to Levy a Fine to other uses and after the Covenant a Fine was levied accordingly And whether this should be taken as a Revocation and so an execution of the Power and the extinguishment of it was the Question It was Argued by Jones Attorney General that this should not be taken as a Revocation In Powers of Revocation there is to be considered the Substance and the Circumstance and that which Revokes must be defective in neither The Deed alone in this Case cannot revoke for tho' it has the Circumstance limited viz. Indenting Writing Sealing Subscribing yet it wants Substance for it doth nothing in praesenti but refers to a future Act viz. the Fine If a man has made his Will a Covenant after that he will levy a Fine or a Charter of Feoffment made will not be a Revocation of the Will 1 Roll. 615. yet there appeared an intention to Revoke and less matter will Revoke a Will than a Deed. Again the Fine alone cannot Revoke because it is defective in the Circumstances contained in the Power but then to consider them both together how can it be conceived that the Fine should communicate Substance to the Deed or the Deed give Circumstances to the Fine But 't is Objected That they make but one Conveyance I Answer If so then the words of the Power here are to Revoke by Deed and not by Deed and Fine Again This Construction is repugnant to the words of the Power which are That it shall be lawful for him to Revoke by his Deed And yet it is agreed here that the Deed of it self is not sufficient to revoke but only in respect of another Act done which as it must be observed is executed at another time The Books agree that a Condition or Power c. may be annexed to an Estate by a distinct Deed from that which conveys the Estate but not unless both are Sealed and Delivered at the same time and so they are but as one Deed But in the present Case the Deed was made in one year and the Fine levied in another Suppose the Power to be with such Circumstances as in our Case and a Deed is made which contains some of them at one time and another Deed comprehending the rest of another time Should both these make a Revocation is one Deed Surely not Again Suppose the Fine had been Levied first and then afterwards such Deed had declared the Uses surely the Power had been extinguished by the Fine tho' there the Fine and Deed might be taken as one Conveyance as well as here Again the different natures of these Instruments makes that they cannot be taken as one entire Act within the Power for the Covenant is the Act of the party and the Fine the Act or Iudgment of the Court. But it has been Objected That this ought to have a favourable Construction I Answer But not so as to dispence with that Form the Execution of the Power is limited to be done by In the 6 Co. 33. Powers that are to divest an Estate out of another person are
taken strictly and here upon the first Fine the Earl of Leicester had no Estate left in him Mich. 6 Car. 1. in Communi Banco the Case of Ingram and Parker which tho' it may not be a clear Authority for me yet I am sure it does not make against me The Case was Catesby levied a Fine to the use of himself in Tail with Remainders over reserving a Power to himself and his Son to Revoke by Deed c. as in our Case and his Son after his decease by Deed intended to be Enrolled conveyed to one and his Heirs and after levied a Fine and it was held no Revocation First Because he having an Estate Tail in him the Deed might operate upon his Interest Secondly Because it was but an inchoation of a Conveyance and not perfected and they held it no Revocation and that the Fine levied after tho' intended to be to the Vses of the Deed yet should extinguish the Power Hale Chief Justice Vpon the close and nice putting of the Case this may seem to be no Revocation for 't is clear that neither the Deed nor Fine by it self can revoke but quae non valent singula juncta prosunt The Case of Kibbett and Lee in Hob. 312. treads close upon this Case where the Power was to Revoke by Writing under his Hand and Seal and delivered in the presence of three Witnesses and that then and from thenceforth the Uses should cease It was there Resolved that a Devise of the Lands by Will with all the Circumstances limited in the Power should Revoke yet the Delivery was one of the Circumstances and the Uses were to cease then and from thenceforth Whereas a Will which could have not effect while his Death did strongly import that the meaning was to do it by Deed and yet there the Will alone could be no Revocation for clearly he might have made another Will after and so required other Matter viz. his Death to compleat it And in that Case there is another put That if a Deed of Revocation had been made and the party had declared it should not take place until 100 l paid there the operation of it would have been in suspence until the 100 l paid and then it would have been sufficient yet there it had been done by several Acts and of several Natures the Intention in things of this nature mainly governs the Construction In Terries Case it was Ruled That if A. makes a Lease for years to B. and then Levies a Fine to him to the end that he might be Tenant to the Praecipe for the suffering of a Recovery that after the Recovery suffered his Lease should revive 'T is true in the Case at Bar if the Fine had been levied first and then the Deed of Uses made afterwards the Power had been extinguished by the Fine and so no Revocation of that which had no being could have been by the Deed. Twisden What if before the Fine levied the Intent had been declared to that purpose Hale I doubt whether that would have helped it I cannot submit to the Opinion in Parker and Ingrams Case cited viz. That the Deed not being Enrolled should make no Revocation For in case of a Power to make Leases for life it has been always held by the best Advice that the better way is to do it by Deed without Livery tho' Livery by the Common Law is incident to a Lease for life and so Adjudged in Rogers's Case for Lands in Blandford forum in Moor's Rep. where Tenant for life hath power to make Leases for life and makes a Lease by Livery 't is there held a Forfeiture tho' I conceived not because by the Deed the Lease takes effect and so the Livery comes too late Therefore the omission of Enrolling the Deed in that case does not seem to be material but if that Opinion be to be maintained it is because the party had such an Interest upon which the Deed might enure without Execution of his Power and so rather construed to work upon his Interest But that Reason does not satisfie because such an Estate as was intended to be conveyed could not be derived out of his Interest therefore it should take effect by his Power according to Clere's Case in the 6 Co. So by the whole Court here the Deed and Fine taken together were Resolved to be a good Execution of the Power and Judgment given accordingly Richardson versus Disborow A Prohibition was prayed to the Ecclesiastical Court where the Suit was for a Legacy and the Defendant pleaded That there was nothing remaining in his hands to pay it and that he had fully Administred And producing but one Witness to prove it Sentence was given against him and after he Appealed and because their Court gave no regard to a single Testimony he prays a Prohibition But it was urged on the other Side That it being a Matter within their Cognizance they might follow the Course of their own Law And tho' there are diversities of Opinions in the Books about this Matter yet since 8 Car. 1. Prohibitions have been been denied upon such a Surmize Hale Where the Matter to be proved which falls in incidently in a Cause before them is Temporal they ought not to deny such Proof as our Law allows and it would be a great Mischief to Executors if they should be forced to take two Witnesses for the payment of every petit Sum And if they should after their Death there would be the same Inconvenience In Yelv. 92. a Prohibition was granted upon the not admitting of One Witness to prove the Revocation of a Will Which is a stronger Case because that entirely is of Ecclesiastical Cognizance Wherefore let there go a Prohibition and let the party if he please Demur upon the Declaration upon the Attachment Hob. 188. 1 Cro. 88. Popham 59. Latch 117. Pigot versus Bridge IN Debt upon a Bond Conditioned for performance of Covenants and the Breach assigned was in the not quietly enjoying the Land demised unto him The Defendant pleads that the Lease was made to hold from Michaelmas 1661 to Michaelmas 1668 and that paying so much Rent Half yearly he was to Enjoy quietly and shews that he did not pay the last half years Rent ending at Michaelmas 1668. To which the Plaintiff Demurred supposing that the words being to Michaelmas 1668. there was not an entire Half year the Day being to be excluded and that it was so held in the Case of Umble and Fisher in the 1 Cro. 702. Cur ' contra 'T is true in pleading usque tale Festum will exclude that Day but in case of a Reservation the Construction is to be governed by the Intent Anonymus NOte per Hale Debt doth not lye against the Executor of an Executor upon a Surmize of a Devastavit by the first Executor For First 'T is a Personal Tort for which his Executor cannot be charged Secondly 'T is such an Action of Debt as would
have admitted Wager of Law and therefore lies not against the Executor It was difficultly brought in that Debt should lye against the Executor upon a Surmize of a Devastavit by himself But that Point is now setled but no Reason to extend it further And he cited a Case where Debt was brought against A. Executor of B. Executor of C. who pleaded that he had not of the Goods of C. in his hands To which the Plaintiff Replied That B. had Wasted the Goods of C. to the value of the Debt demanded Vpon which Issue was joyned and found for the Plaintiff and he had Judgment to recover de bonis B. in the hands of A. But that Judgment was Reversed Anonymus IF A. Engages that B. shall pay for certain Goods that B. buys of C. this is good to charge him upon a Collateral Promise but not upon an Indebitat ' Assumpsit for it doth not create a Debt Anonymus IN an Information for a Riot it was doubted by the Court whether it were Local being a Criminal Cause And it was observed that divers Statutes in Queen Elizabeth and King James's time provided that Prosecutions upon Penal Laws should be in their proper Counties Which was an Argument that at the Common Law they might have been elsewhere Taylor 's Case AN Information Exhibited against him in the Crown Office for uttering of divers Blasphemous Expressions horrible to hear viz. That Jesus Christ was a Bastard a Whoremaster Religion was a Cheat and that he neither feared God the Devil or Man Being upon this Trial he acknowledged the speaking of the Words except the word Bastard and for the rest he pretended to mean them in another Sense than they ordinarily hear viz. Whoremaster i. e. That Christ was Master of the Whore of Babylon and such kind of Evasions for the rest But all the Words being proved by several Witnesses he was found Guilty And Hale said That such kind of wicked Blasphemous words were not only an Offence to God and Religion but a Crime against the Laws State and Government and therefore punishable able in this Court. For to say Religion is a Cheat is to dissolve all those Obligations whereby Civil Societies are preserved and that Christianity is parcel of the Laws of England and therefore to reproach the Christian Religion is to speak in Subversion of the Law Wherefore they gave Judgment upon him viz. To stand in the Pillory in Three several places and to pay One thousand Marks Fine and to find Sureties for his Good Behaviour during Life Walker versus Wakeman THe Case was An Estate which consisted of Land a Rectory c. was conveyed to the use of one for Life c. with a Power to Lett the Premisses or any part of them so as 50 l Rent was reserved for every Acre of Land The Tenant for Life Demised the Rectory reserving a Rent which Rectory consisted of Tythes only and whether this was within the Power was the Question Serjeant Pemberton Argued That this Lease is not warranted by the Power for a Construction is to be made upon the whole Clause and the latter Words that appoint the Reservation of the Rent shall explain the former and restrain the general Word Premisses to Land only for if it shall be extended further the Settlement which was in Consideration of a Marriage Portion is of no effect for the Rectory As in case it should de Demised reserving no Rent which it might be if not restrained to the latter words and they applied only to the Land But it was Resolved by the Court that the Lease of the Rectory was good for the last Clause being Affirmative shall not restrain the Generality of the former And this Resolution was chiefly grounded upon Cumberford's Case in the 2 Rolls 263. where a Conveyance was made to Vses of divers Mannors and Lands with a Power to the Cestuy que use for Life to make Leases of the Premisses or any part of them so that such Rent or more were reserved upon every Lease which was reserved before within the space of Two years and a Lease was made of part of the Lands which had not been Demised within Two years before And Resolved it was a good Lease and that thereupon any Rent might be reserved because the Power was General To Lease all and the restrictive Clause should only be applied to such Lands as had been demised within Two years before Termino Sanctae Trinitatis Anno 28 Car. II. In Banco Regis MEmorandum The last Term Sir Richard Rainsford was made Chief Justice Hale Chief Justice quitting it for infirmity of Body and Sir Thomas Jones was made one of the Justices of the Court of Kings Bench. Anonymus IN an Action upon the Case brought against the Defendant for that he did Ride an Horse into a place called Lincolns in Fields a place much frequented by the Kings Subjects and unapt for such purposes for the breaking and taming of him and that the Horse was so unruly that he broke from the Defendant and ran over the Plaintiff and grievously hurt him to his damage c. Vpon Not guilty pleaded and a Verdict for the Plaintiff It was moved by Sympson in Arrest of Judgment that here is no cause of Action for it appears by the Declaration that the mischief which happened was against the Defendants Will and so Damnum absque injuria and then not shewn what right the Kings Subjects had to walk there and if a man diggs a Pit in a Common into which one that has no right to come there falls in no Action lies in such Case Curia contra It was the Defendants fault to bring a Wild Horse into such a place where mischief might probably be done by reason of the Concourse of People Lately in this Court an Action was brought against a Butcher who had made an Ox run from his Stall and gored the Plaintiff and this was alledged in the Declaration to be in default of penning of him Wild said if a Man hath an unruly Horse in his Stable and leaves open the Stable Door whereby the Horse goes forth and does mischief an Action lies against the Master Twisden If one hath kept a tame Fox which getts loose and grows wild he that kept him before shall not answer for the damage the Fox doth after he hath lost him and he hath resumed his wild nature Vid. Hobarts Reports 134. The Case of Weaver and Ward Anonymus IN Trespass in an inferiour Court if the Defendant plead son frank Tenement to oust the Court of Jurisdiction It was said by Wild that they may enforce the Defendant to swear his Plea as in case of Foreign Plea negat Twisden and as in this Court where a Local justification in Trespass c. is pleaded the Defendant must swear it But the Court held no Indictment will lie for Perjury in such Oath no more than upon a Wager of Law Anonymus IN Trover the Hab. corpora
it will be agreed he might have released it or by cutting of the Wood might have taken away all the right of Action Again it does not appear by the Record that the Defendant was here and so no benefit by the forbearing to cut the Wood. Rookwoods Case cited on the other side 1 Cro. 163. 1 Leonard 192. is that the Promise was made to the younger Brothers and the Consideration that they would consent but here the Plaintiff who was to have the Money had no share in the Consideration or Meritorious Act as where the Father promises J. S. if his Son will Marry his Daughter he will give him 1000 l the Son may bring the Action because the Consideration moves from him Hetlys Rep. 20. the Case was to this effect A Man promises a Woman whom he was to Marry upon a certain Consideration that if he had a Son by her he should have a Term whereof the Woman was then possessed and if it were a Daughter she should have the Moiety of the Goods c. they Intermarry and after the death of the Husband the Daughter born between them brings an Action against the Executor of the Husband and resolved that it would not lie tho' they did not think the Agreement made with the Wife to be discharged by the Intermarriage but only suspended which is a Quaere in my Lord Hobart Yet the Daughter being no Party to the Promise or to the Consideration could not bring an Action The Case of Norris and Pine before cited is stronger for there he that made the Promise had a benefit for it was in Consideration of Marriage On the other side it was said that tho' it doth not appear that the Defendant was Heir yet it may be intended after Verdict however 't is not nudum pactum for if the Defendant had no benefit yet there was a restraint upon the other and that is Consideration enough And for the objection of releasing that holds where J. S. promises J.N. if his Son will Marry his Daughter he will pay him 1000 l J.N. may Release but 't is doubtful whether he can after Marriage because then 't is vested in the Son as Scroggs Chief Justice said 1 Roll. 31. The Uncle of an Infant delivered J.S. 12 l who promised to pay the Infant when he came of Age and the Action was well brought by him after his Age. So Goods sold to A. to pay 10 l to B. B. may Sue Vid. 1. Roll. 32 Starkey and Mills The Court said it might be another Case if the Money had béen to have been paid to a Stranger but there is such a nearness of Relation between the Father and Child and 't is a kind of Debt to the Child to be provided for that the Plaintiff is plainly concerned And so by the Opinion of them all viz. Scroggs Wild Jones and Dolben Judicium pro Querente Ante. Anonymus A Prohibition was prayed to the Sheriffs Court of London for that an Action was there Commenced to which the Defendant pleaded That the cause of Action did not arise within the Jurisdiction and offered to swear his Plea but it was refused The Counsel for the Plaintiff objected against the Prohibition that the Plea came too late for it was after an Imparlance But it being proved by Affidavit that the Plea was tendred within two days after the Declaration was delivered and that immediately upon delivering the Declaration there is an Imparlance of course The Court granted the Prohibition and said that the other side might Demurr if they thought fit for the liberty of the Subject was infringed by bringing him within a private Jurisdiction when the Matter arises out of it and Attorney's in such places are sworn to advise no Plea to the Jurisdiction nor that none shall be put in by them And whereas 't was said that the Party had not prejudice for he might remove his Case by Habeas Corpus The that the Court answered coming by Habeas Corpus Bail must be put in above tho' the Cause otherwise did not require it Note It appeared here that there was no defence made in this to the Jurisdiction and Co. Inst was quoted that defence should be made tho' not full defence But the Court said it was not necessary and that Presidents were otherwise especially where the Court have no Jurisdiction of the matter otherwise where not of the person James versus Richardson IN Ejectment the Case upon a Special Verdict was thus A. devised the Lands to B. and his Heirs during the Life of J. S. and after to the Heirs of the Body of R. D. now living and to such other Heirs was should after be Born the Devisee for Life levied a Fine in the Life of him to whose Heirs the Remainder was limited but he had a Son at the time of the death of the Testator The question was Whether it was a Contingent Remainder the consequence whereof was to be destroyed by the Fine and that it was vested in the Son Scroggs Chief Justice Wild and Jones held it a Remainder vested by reason of the words now living which was a sufficient Designation of the person that was to take in a Will tho' improper to call him Heir But Dolben Contra for by this Construction the Heirs Born after are excluded and the Son would take but an Estate for Life tho' it were devised to the Heirs in the Plural Number Note Vpon a Writ of Error in the Exchequer Chamber this Iudgment was reversed Hillary 31 32. Car. 2. Termino Paschae Anno 31 Car. II. In Banco Regis A Mandamus was prayed to the Ecclesiastical Court to grant the Probat of a Will under Seal c. The Case was the Executor named in the Will had taken the usual Oath but after a Caveat entred and then Refused and another endeavoured to obtain Letters of Administration the Executor came after to desire the Will under Probat and contested the granting of Administration Which was Adjudged against him supposing that he was bound by his Refusal And after an Appeal to the Delegates this Mandamus was prayed and granted by the Court for having taken the Oath he could not be admitted to Refuse and the Ecclesiastical Court had no further Authority and the Caveat did not alter the Case Note The Oath was taken before a Surrogate yet it was all one Anonymus A Prohibition was prayed to a Suit for Tythes upon the Suggestion that the Lands out of which they were demanded say out of the Parish and the Bounds of Parishes are tryable at the Common Law But the Court denied the Prohibition because it did not appear that a Plea thereof had been offered in the Ecclesiastical Court Anonymus A Prohibition was prayed to stay a Suit against J. S. Lessee of a Rectory out of which a Pension was demanded It was suggested that the Lord Biron had three parts in four of this Rectory upon which the Pension was chargeable and that
cannot tender an Oath to the party sued nisi in causis Matrimonialibus Testamentariis But the Court after hearing divers Arguments denied the Prohibition for they said It was no more than the Chancery did to make Defendants answer upon Oath in such like Cases Termino Sanctae Trinitatis Anno 31 Car. II. In Banco Regis How versus Whitfield ante in ult ' Term. IN Repl the Plaintiff declares of the taking of his Cattle in a Close containing five Acres The Defendant avows and sets forth a Fine to the use of A. in Tail which discended to him Virtute cujus he was seised in Dominico ut de feodo talliato c. The Plaintiff Replies that the Fine was first to the use of J. S. for Life the Remainder to his Executors Administrators and Assigns for 80 years with Power to him and his Assigns to lett the five Acres in Possession or Reversion for 21 years determinable upon three Lives reserving the ancient Rent and that J. S. Devised this Term to J. N. and died his Executors assented and after it came to the Executors of J. N. who assigned it and that the Assignee made a Lease of the said five Acres inter alia reserving proinde the Rent of 6 s per annum and avers that the ancient Rent was 6 s per annum The Avowant Rejoyns setting forth his former Title And the Plaintiff Demurrs It was Objected First That the Plaintiff ought to have traversed the Seisin in Tail alledged by the Avowant seeing in his Replication he sets forth and intitles himself under an Estate inconsistent with it To this it was Answered and the Court agreed that there ought to be no Traverse for the Avowant doth not say it was his Freehold or that he was Seised in Tail but only under a Virtute cujus c. And the Plaintiff in his Replication sets forth a Title consistent with all that the Avowant alledges and so confesses and avoids and all depends upon the execution of the Power And for that Secondly It was Objected That he which made this Lease was not Assignee of J. S. for Executors were not within the Power and consequently not their Assignee This is a Power collateral to the Estate and shall not run with the Land for then Assignees of Commissioners of Bankrupcy the Vendee of the Term by the Sheriff upon an Execution c. should execute this Power It is like Covenants annexed to Leases which the Assignee could not take advantage of till 32 H. 8. Again Here appears to be no good Reservation for the Lease is of the five Acres inter al' reserving proinde so that the Rent issues out of other Lands as well as the five Acres and therefore cannot be said to be the ancient Rent reserved upon that The Court were all of Opinion that the Assignee in this case might execute the Power and conceived that Assignees might include Assignees in Law Vid. Mo. 855. as well as Fact but however the Tenant for Life devising this Term the Devisee was an Assignee and the Power in the greatest strictness of acceptation was in him and consequently must go to his Executors and by the same Reason to their Assignee As to the Reserving the Rent proinde the Court said it might be intended that the inter al' might comprehend nothing but such things out of which a Rent could not be reserved and then the six Shillings was reserved only for the five Acres However the proinde might reasonably be referred only to the five Acres and not to the inter al and that a distinct Reservation of Six shillings might be for five Acres And so Judgment was given for the Plaintiff Ante. Steed versus Berrier ERror upon a Judgment given in the Court of Common Pleas upon a Special Verdict the Case was to this effect J.S. made his Will in Writing and devised Lands to his Son J.S. and his Heirs and in the same Will gave a Legacy of 100 l to his Grandson The Son died afterwards in his Life time after whose decease J. S. the Grandfather made a Codicil wherein he gave away part of the Lands devised as aforesaid to a Stranger and afterwards declared by Parol that his Intention was that his Grandson J. S. should have the Lands which his Son J. S. should have had The Question upon this Special Verdict was Whether this were sufficient to carry the Lands to the Grandson And Judgment was given in the Common Pleas by three Judges against one that it was Whereupon a Writ of Error was brought in this Court Finch Solicitor Argued that this Will was sufficient to carry it to the Grandson He agreed Brett and Ridgen's Case in Pl. Com. that a Devise to a man and his Heirs who dies in the Life of the Devisor a new Publication will not be enough to make the Heir take by the Will because named in the Will by way of Limitation of the Estate and not Designation of the Person that should take But in Fuller's Case in the 1 Cro. 423. and in Mo. 2. where the Devise was to his Son Richard and the Heirs of his Body which Richard afterwards died in his Life time and then the Devisor said My Will is That the Sons of Richard my Son deceased shall have the Land devised to their Father as they should have had if their Father had lived and died after me There Popham and Fenner held that this new Publication would carry the Land to Richard's Son Gawdy and Clench contra But our Case is much stronger for there Heirs of the Body were used only for Limitation but in the Will here where the words are I Devise to my Son J. with this new Publication the Grandson J. may take because a Grandson is a Son and when a Will is new Published it is all one as if it were wrote at the time of such Publication Beckford and Parncot's Case in the 1 Cro. 493. Mo. 404. Devise of all his Lands and after the Will the Devisor purchaseth other Lands and then publishes it again it will carry the new purchased Lands Dyer 149. Trevanian's Case Cestuy que use before the 27th of H. 8. Devised the Lands a new Publication will pass the Lands executed in him by the Statute The Opinion of the Court inclined to Reverse the Judgment they held it to be the same with Fuller's Case in the 1 Cro. that no Parol averment can carry Lands to one person when the words of the Will plainly intended them to another They agreed If a man having no Son but a Grandson deviseth his Lands to his Son the Grandson may take But here is an opposition contained in the new Publication viz. Those Lands which my Son J. should have had my meaning is my Grandson J. shall have And in the Will it self there is a Legacy devised to the Grandson by that Name so where they are so distinguished 't is impossible to take the Grandson to be
Indicted of Perjury in a voluntary and Extra judicial Oath and cited a late Case where one had stole away a mans Daughter and went before a Justice of the Peace and Swore that he had the Fathers Consent and this in order to get a Licence to marry her and he was Indicted and Convicted thereupon And all the Court said that it was not the course to quash Indictments of Perjury Nusance or the like but to put the party to plead to them Termino Paschae Anno 36 Car. II. In Banco Regis Duncomb versus Walter IN an Indebitat ' Assumpsit by an Assignee of Commissioners upon the Statute of Bankrupts upon Non assumpsit a Special Verdict was found upon which the Case appeared to be thus One Staly was Arrested by an Executor of his Creditor 6 Sept which was before Probat of the Will and within two or three days after he paid 1000 l to the Defendant to whom he stood Indebted in such Sum and after the 18th of September he yielded himself to Prison upon the said Arrest The Question was Whether the Defendant should be obliged to Refund this Money which was paid unto him as aforesaid First Whether the Arrest before the Probat was a good Arrest It was said If an Executor hath a Reversion in a Term upon which a Rent is reserved and Distrains c. he may avow for the Rent before the Probat Vid. 1 Roll. 917. tit Executors where an Executor brings an Action before Probat yet if he shews the Probat upon the Declaration 't is well enough Secondly Whether when he yields himself to Prison it shall not relate to the first Arrest to make him a Bankrupt from that time This depends upon the Statute of 21 Jac. cap. 19. where it is said that in the Cases of Arrest and lying in Prison he shall be adjudged a Bankrupt from the time of his first Arrest Object This Relation doth not prejudice Strangers Answ Dame Hales's Case Pl. Com. 293. If one giveth another a mortal Wound and then sells his Land and the person dies there shall be such Relation as to make the Land forfeit from the first Stroke Note This Case came by Writ of Error out of the Common Pleas where Judgment was given for Walter and the said Judgment was affirmed in this Court principally upon the point of Relation For the Court said that it would be a great mischief if it should relate to the first Arrest as to the payment of Money to Strangers Termino Sancti Hillarij Anno 1 2 Jac. II. In Banco Regis Herring versus Brown Quod vid. ante Michaelmas 35 Car. 2. THe Case upon a Special Verdict was to this effect That J. S. being Seised in Fee had made a Conveyance of his Estate to the use of himself for Life with divers Remainders over to other persons with a power of Revocation by Writing under his Hand and Seal c. Afterwards the said J. S. having a purpose to Revoke the said Uses and make a new Settlement of his Estate he levied a Fine and after the Fine he made a Deed wherein he expressed that he Revoked the former Uses and so proceeded to a new Limitation by that Deed and declared that the Fine by him limited should be to the Vses of the said Deed. The sole Question was Whether the Fine had extinguished his Power and by consequence forfeited his Estate or Whether the Fine and Deed should be taken as one Conveyance and so be a good execution of his Power and new limitation of the Uses And after many solemn Arguments it was Resolved by the Chief Justice Herbert Holloway and Wright that the Fine was an extinguishment of his Power and that the Deed came too late contrary to the Opinion of Justice Withens Vido ante ADDENDA Termino Sanctae Trinitatis Anno 26 Car. II. In Banco Regis Pibus versus Mitford Intratur Trin. 20 Car. 2. Rot. 703. IN an Ejectment the Jury find a Special Verdict to this effect viz. That Michael Mitford was seiz'd of the Lands in question and of divers other Lands in Fee and having Issue Robert by one Venter and Ralph by Jane his second Wife did 23 Jan. 21 Jac. by Indenture Covenant to stand seized of some of the Lands to the use of himself for Life Remainder to Trustees for years for several purposes Remainder to Jane his second Wife for Life Remainder to Ralph and the Heirs Male of his Body And as to the Lands in question he Covenants to stand seiz'd To the use of his Heirs Male begotten or to be begotten on the Body of his second Wife and died And then the Jury made this Special Conclusion If any Use did arise by the Deed to Ralph then they find for the Defendant and if not they find for the Plaintiff This Case was Argued several times at the Bar and now the Judges delivered their Opinions seriatim Wild Justice for the Defendant We are to give our Opinions upon a Deed of Uses made for the Provision of younger Children not otherwise provided for But if the Case were not so It is a safe way when the Words are ambiguous to follow the Intention of the party appearing in the Deed. I shall not maintain that Ralph is a Purchaser and so make this an Executory Use I agree a man cannot either by Conveyance at Common Law by Limitation of Uses or Devise make his right Heir a Purchaser I agree also Griswold's Case in Dyer 156. and if this Case had operated by Transmutation of Possession this Limitation to the Heirs of the Body of the Covenantor had been void and no Use should have risen But here in the Case of a Covenant to stand seiz'd nothing moves out of the Covenantor he retains the Land and directs the Use and keeps sufficient in him to maintain this Use There 's a great difference between a Conveyance at the Common Law and a Conveyance to Uses At the Common Law the Heir cannot take where the Ancestor could not but otherwise it is in case of Uses 2 Rolls 794. and so is Wood's Case 1 Co. 99. a. cited in Shelly's Case This I say to shew that the Intent of the Parties shall be the Guide and that there is a difference between Conveyances at the Common Law and Conveyances to Uses Horwood's Opinion in Hussey's Case 37 H. 8. comes to our Case There 's no great difference between a Covenant to stand seiz'd and a Feoffment to Uses I will not Argue to prove that this Deed shall enure as an Executory Use because 't is against a Rule in Law taken by my Lord Hobart and so Agreed before his time But here Ralph is Tenant in Tail Michael his Father being Tenant for Life Remainder to his Heirs Male begotten on the Body of Jane his second Wife For the Law to preserve this Limitation to the use of his Heirs Male c. will by Implication create an Estate for Life in Michael
for if a Man Covenants to stand seized to a Contingent Use and afterwards is attainted of Treason before the Contingency happen the Contingency shall never rise for the King has the Estate discharged and the Use is to rise out of the Estate of the Covenantor so is Moor Sir Tho Palmers Case 815 In Moors Rep. of my Lord Pagets Case 194. It s said that W. Paget had an Amoveas manus for the Estate of the Queen leased by the Death of my Lord Paget In Sir Francis Englefeilds Case Popham 18. n. 7. It s resolved that no Use rises because t is that it shall Discend Remain or Come which is uncertain but if he had Covenanted that after his Death he and his Heirs would have stood seized to the Use of John an Use would have resulted to Sir Francis Second Point I conceive if it be impossible for Ralph to take by Discent this would be a Contingent Use in him by Purchase The great Objection against this is that the Limitation is to an Heir and an Heir which ought to take by Purchase ought not to be only Heir of the Body c. but Heir general Of this I am not well satisfied I conceive the Remainder being limited to the Heirs of the Body of Jane begotten by Michael such a Limitation will make a special Heir to serve the turn and t is not to be resembled to Shelley's Case My Reasons are First Because at the Common Law before the Statute de Donis notice was taken that this was a special Heir and therefore 't is no wrong done to make him here a qualified Heir In the Statute de Donis 't is said When Lands are given to Man and his Wife and the Heirs of their two Bodies begotten Secondly Vpon the special penning of the Deed it is apparent that Michael took notice that he had an Heir at Common Law therefore it can't be intended that he meant here such an Heir that should be Heir general to him this would be Contradictio in Adjecto Litt. Sect. 352. puts this Case If a Feoffment be made upon Condition that the Feoffee shall give the Land to the Feoffor and his Wife and the Heirs of their two Bodies begotten In this Case if the Husband dye living his Wife before the Estate Tail is granted to them the Feoffee ought to make the Estate as near the Condition and as near the intent of the Condition as may be viz. To let the Land to the Wife for her Life without impeachment of Wast the Remainder to the Heirs of the Body of the Husband on her begotten If the Husband and Wife dye before the Gift made then the Feoffee ought to make it to the Issue and to the Heirs of the Body of his Father and Mother begotten Suppose that this had been to a second Wife and there had been Issue by a former the Book of 12 H. 4. 3. says that there it shall be in another manner but Litt. says it shall be as near vid. Litt. Sect. 22. Morevils Case Fitzh Tail 23. 2 Ed. 3. 1. 4. Ed. 3. 50. by all these Cases it appears that no regard is had whether the Son be Heir of the Husband if he be Heir of their two Bodies Therefore it seems that by this Limitation Ralph shall take by way of Contingent Remainder For Heirs of the Body of the second Wife is a good name of Purchase I have not read any Case against this Hill 16. or 26 Eliz. there was this Case A Man taking notice in his Will that his Brother who was dead had a Son and that he himself had three Daughters who were his right and immediate Heirs he gave them 2000 l and gave his Land to the Son of his Brother by the name of his Heir Male. Provided If his Daughters troubled his Heir then the Devise of the 2000 l to them should be void And it was resolved that the Devisor taking notice that others were his Heirs the Limitation to his Brothers Son by the name of Heir Male was a good name of Purchase and this agrees with Cownden and Clarks Case in Hob. Wild Justice said he was of the same Opinion with Hale in this last Point And Iudgment was given for the Defendant Three Learned ARGUMENTS One in the Court of Kings-Bench BY Sir FRANCIS NORTH Attorny General And Two in the Court of Exchequer BY Sir MATTHEW HALE Chief Baron there The Argument of Sir Francis North. In Banco Regis Potter and Sir Henry North. IN a Replevin for taking of an Horse in a certain place called the Fenn at Milden-Hall in the County of Suffolk the Defendant makes Cognizance as Bayliff to Sir Henry North and saith That the place Where c. containeth Ten thousand Acres of Pasture in Milden-Hall whereof a certain place called Delfe is parcel and that it is Sir Henry North's Freehold and the Horse was Damage feasant there c. The Plaintiff Replies Confessing the Soyl to be the Freehold of Sir Henry Norths but says That time whereof c. the place Where hath been parcel of the Fenn and parcel of the Mannor of Milden-Hall of which Sir Henry North is seised in Fee and that the Plaintiff was at the time c. seised of an Ancient Messuage one of the Freeholds holden of the Mannor by Rents and Services and parcel of the said Mannor and that Time out of Mind there were divers ancient Freehold Messuages holden of the said Mannor by Rents and Services and divers Copyhold Messuages parcel of the said Mannor by Custom of the said Mannor demised and demisable by Copy of Court Rolls of the said Mannor And the several Tenants of the said Freehold Tenements being seised in their Demesn as of Fee and they whose Estate they have in the same Time out of mind have had together with the Customary Tenants of the said Customary Tenements the sole and several Feeding of 100 Acres of Pasture for all Beasts except Hogs Sheep and Northern Steers levant and couchant upon their several Freeholds every year at all times of the year as to their several Freeholds belonging And that within the said Mannor there is and Temps d'ont c. hath been such a Custom that the several Tenants of the Customary Messuages together with the Freeholders aforesaid have used and accustomed to have the sole and several Feeding of the said 100 Acres of Pasture for all their Beasts except Sheep Hogs and Northern Steers levant and couchant upon their several Copy-holds every year at all times in the year tanquam ad seperal ' Tenementa customar ' spectant ' pertinent ' and the Plaintiff being seised put in his Horse c. and so Iustifies Vpon this the Defendant demurs generally This Prescription is naught in substance and Judgment ought to be given for the Defendant upon these Four Exceptions First That several Freeholders cannot joyn or be joyned in a Prescription to claim an entire Interest in another mans Soyl as
Circumstance that Special Matter or Circumstance must be shewn to the Court by him that would have the advantage of the Prescription for the Negative cannot be averred on the other side And it cannot be helped by supposing there may be Trees Mines or Park but it ought to be shewn for every thing that depends upon supposition may as well not be as be and to allow a Prescription upon such a supposal would be to bind up a party by it tho' the thing be not and Pasturage may well be supposed the whole profit of Pasture Ground for it is so in fact in many places and has its name because it is fed all the year But Where it is fed but part of the year and mowed or plowed the rest it is called Arable or Meadow The main Objection that I conceive they can make to this is That the Sole Pasturage or Vesture lies in Grant and the Owner may exclude himself wholly by Grant and so he may be excluded by Prescription or Custom and this they ground upon Co. Litt. 4 b. where it is said if a Man Grants to another and his Heirs vesturam terrae and makes Livery secundum formam Chartae yet the Freehold of the Soil shall not pass by which it is implied that the Vesture shall If this Book be to be understood of the Vesture at all times of the year where no other profits remain to the Lord I shall crave leave to object against it from the same Page where it is agréed that if it were profits the Soil would pass Methinks it should be the same in reason where the Vesture is all the profits and Vesture shall be intended all the profits I shall cite some Authorities which are not inconsiderable to Warrant this Opinion I have in a Manuscript Report of Cases in King James's time a Case betwixt Collins and the Bishop of Oxford It was Paschae 19. Jacobi upon a Tryal at Bar in the Kings Bench. The Case was that 1 Ed. 6. the King erects the Bishoprick of Oxford and gave to the Bishop and his Successors in t ' al' primam vesturam of a Meadow called Horse Meadow John Bridge Bishop of Oxford leased it for three Lives rendring Rent and dies his Successors before restitution of the Temporalties accepted the Rent of the Lessee and afterwards entred upon him Vpon this Case the first question was what passed by the Grant of prima vestura My Report says That it was agreed by all the Justices that by a Grant of Vestura Terrae by a common Person the Soil will pass and then there must be a Livery of consequence but they held a Grant of prima vestura was but like a Grant of prima tonsura and being for no certain time is but an Interest in the first cutting or taking of the Grass But they all agreed that if a Man Grants primam vesturam from such a day to such a day certain the Grantee shall have the Soil and Mow it or Feed it as he pleases Kelway 118. If a Man Grants vesturam Terrae for term of Life to another it is a Grant of the Land for Life for saith the Book the vesture is the profit of the Land and it is all one to have the profit as to have the Land it self Littleton puts the Case if a Man Grants the Vesture of Land to another and his Heirs without Livery no Estate passeth But the Book of my Lord Cokes difference betwixt the Vesture of the Land and the profits of the Land seems to be mistaken and in reason they are the same for I take it generally speaking Vesture shall be intended all the profits and if there be special profits as Mines opened or Waters c. which may qualifie the word and retain the Soil to the Owner it must be shewn And as it is for Vesture of Land so I conceive where it appears in Pleading that the Ground is Pasture Pasturage or Sole Feeding will signifie all the profits for Pasture is properly that which is wholly for Feeding and where the Sole Pasture is claimed the Owner cannot claim or take any other profit Temps E. 1. tit Partition 21. Two Men agree to make partition of Pasture Ground in this manner That one shall have totam pasturam from such a time to such a time and the other for the residue of the year this is a partition of the Soil it self which shews Pasture is to be intended the whole profits of Pasture Ground in that case the quo jure could not be maintained for the party had not barely a Liberty but the Soil it self If several Men have Profits upon the same Land alternis vicibus the Law most commonly determines the right of the Soil to be in him that has the most considerable Profits As for Example If one has the Summer Feeding of Pasture or the first Tonsure of Meadow or the Sowing and Reaping of Corn upon Arable and an other Man has the Feeding separately at other times of the year the Law saith that the Soil is in him that has the Summer profits and Corn because it is the greater Profits and the other hath but a Profit a prender Now suppose that two Men have interchangeably the sole Feeding of Pasture at such times that the interest of one is in all respects equal to that of the other there nothing can determin the Soil to be in one more than the other and therefore it shall be in one for his time and in the other for his time But where one has the sole feeding of Pasture at all times in the year and it has been so time out of mind and there is nothing but Pasture what can the other have to shew the Soil to be in him and why should it not be said to be in him that has the Feeding or whole Profits It seems very absurd that a Man should be allowed to be Owner of the Soil and yet it may be has no badge of Ownership by Perception of Profits If the Mans Estate be displaced so as to be put to a Writ of Right how should he lay the Esplees And as to this Consideration there may be difference betwixt a Grand and Vsage for a Grant beginning within time of Memory the Ownership of the Soil was once fully manifested until he had divested himself of all but that but upon Vsage time out of mind nothing can be said why one Man should have the Soil more than another if it be not in him that hath all the Profits I must end this Point also with this Observation That if there is no Case in all the Books of a Sole Pasture at all times of the year but in F. N. tit Prescription 51 and 55 and Hutton 45. It is made a Profit a prender and the most considerable Proâ—â—ts are left to the Owner My fourth Reason upon which I hold this Prescription is void is because it is a new invention framed to overthrow
an Ancestor that is Medius Ancestor between the persons from whom and to whom will not impede the Discent The Grandfather and Grandmother both Aliens or Attaint of Treason have Issue the Father a Denizen who hath Issue the Son a Denizen the Son shall be Heir to the Father notwithstanding the Disability of the Grandfather For they are not Medii antecessores between the Father and the Son but Paramount and yet all the Blood the Father hath he derived from his disabled Parents And this Observation states in effect the Case For if the Discent between Brothers be an Immediate discent and that the Father be not Medius antecessor between them then the Disability in Robert will not impede the Discent of George his Brother or to John his Brother's Son But if it be a Mediate discent and the Father be a Medius antecessor between them then the Disability in Robert the Father may impeach the Discent The Second Term to be explained is that disabling Term of an Alien and to consider what Disability ariseth from it The Law that is the Rule of Discents in England is also the measure of this Nonability and is the only Rule that must determine how far it extends Therefore I consider what Disability the Law doth induce in case of an Alien It doth not hinder but that an Alien is of the same Degree and Relation of Consanguinity as in the like cases of a Denizen born The Son Father and Brother tho' Aliens are yet Son Father and Brother as Natural born Subjects and so taken notice of in our Law In Cro. Car. Carroon's Case he shall be preferred in Administration as next of Kin. Secondly What the Law doth do as to Disabilities of an Alien And this is of two kinds First the Disability that is Personal or Original to the Alien himself in reference to Inheritance Tho' he may take by Purchase by his own Contract that which he cannot retain against the King yet the Law will not enable him by Act of his own to transfer by Hereditary discent the Alien dying having since a Denizen born the Land will not descend Or to take by an Act in Law for the Law quae nihil frustra will not give an Inheritance or Freehold by Act in Law for he cannot keep it And therefore the Law will not give him 1. Discent 2. Courtesy 3. Dower 4. Guardianship And in respect of this Incapacity he doth resemble a person Attaint yet with this difference the Law looks upon a person Attaint as one that it takes notice of And therefore the eldest Son Attaint over-living his Father tho' he shall not take by Discent in respect of his Disability yet he shall hinder the Discent of the younger Son But if the Eldest Son be an Alien the Law takes no notice of him and therefore as he shall not take by Discent so he shall not impede the Discent to his younger Brother 32 E. 3. Cousenage 5. A consequential Consecutive Disability that reflects to an Alien from one that must derive by or through him tho' he perchance be a Natural born Subject As in our Case tho' Patrick the Son of Nicholas be a Natural born Subject yet because Nicholas his Father was an Alien there is a Consecutive Impediment derived upon Patrick whereby he is Consequentially disabled to Inherit John his Vncle and this Consecutive Disability is parallel to that which we call Corruption of Blood which is a Consequent of Attainder If the Father be Attainted the Blood of the Grandfather is not Corrupted no nor the Blood of his Son tho' he could not inherit him but only the Blood of the Father But that Corruption of Blood in the Father draws a Consequential Impediment upon the Son to inherit the Grandfather because the Fathers Corruption of Blood obstructs the transmission of the Hereditary discent between the Grandfather and the Son And here we must take notice of a great diversity between a Disability in the Blood and a Bar. Cro. Car. 16. Edwards and Rogers's Case William Rogers was seised of a Reversion in Fee Andrew his Vncle levies a Fine with Proclamations and dies having Issue John who dies leaving Issue William then William Rogers dies without Issue Ruled that William the Grandson of Andrew shall inherit notwithstanding the Fine of his Grandfather and the Reason is because William Rogers dying after Andrew the Estate never passed through Andrew and consequently William the Grandson claiming from William is in effect a Stranger to the Fine of Andrew and may aver that Partes c. But in that Case had Andrew been an Alien or Attaint then had William his Grandson been disabled to have inherited William by the Consecutive Disability Now in the Case at Bar there is first no doubt but that John the Earl and George were Brothers tho' they continued Aliens neither is there any question that they could not have inherited one the other had they continued Aliens neither is there any question whether that Personal Disability be removed by the Naturalization But the Question is Whether any Consequential or Consecutive Disabilities do result upon them from their Father Roberts being an Alien which may disable the one Brother to Inherit tho' there Personal disability be removed I come now to the Explication of the Third Term viz. the Restoring or Enabling Term Naturalization The Means of removing Disabilities of this kind are two A temporary partial and imperfect amotion thereof Letters Patents of Denization which tho' it puts the Person Denized as to some purposes in the Condition of a Subject and enables a Transmission Hereditary to his Children born after the Denization yet it doth not wholly remove the Disease or Nonability as to the point of Discents or Hereditary Transmission and resembles a Pardon in case of an Attainder And therefore in Lineal Discents if there be Grandfather a Natural born Subject Father Alien Son Natural the Father is made Denizen he shall not inherit the Grandfather and if the Father dies in the life of the Grandfather the Grandchild tho' born after the Denization doth not remove either the Personal or the Consequential Impediment or Incapacity of the Father In Collateral Discents the Father a Natural born Subject hath Issue two Sons Aliens who are both made Denizens and one dies without Issue the other shall not inherit him This was agreed in Godfrey and Dixon's Case hereafter cited The Second is more deep viz. Naturalization According to the Laws of Normandy they may Naturalize but such Naturalization shall not divest a Discent already vested Terrien lib. 2. cap. 12. But according to our Law it can only be by Parliament and not otherwise And this cures the Defect and makes them as if they had been Born in England and no man shall be received against an Act of Parliament to say the contrary and therefore if the Father an Alien hath Issue a Son born here and then the Father is Naturalized the Son shall
So of Perjury and Nusance 370 Indictment before Justices of Peace for a Non feasance ought not to conclude contra pacem 108 111 For suffering an Escape 169 Quasht for Incertainty 305 306 No Copy of the Indictment allowed in capital Crimes yet the Mirror calls it abusion 354 For Perjury extrajudicial 370 Infant See Executor A Condition and Deed obliges Infants as much as others 200 205 Intent and Intendment See Uses Verdict Ioyntenant Two Joyntenants one Grants bargains and sells all his Estate and Interest the to other this amounts to a Release and must be so pleaded 78 A Devise to two equally to be divided between them and to the Survivors of them makes a Joyntenancy upon the import of the last Words 216 227 Issue A Lease is made to commence after the Death of J. S. without Issue J. S. hath Issue and dyes and then the Issue dyes without Issue the Lease commences For Issue being nomen collectivum when ever the Issue fails the Term commences 229 Iudgment Obtained by Forgery vacated 78 So if procured by Fraud and deceipt 49 Arrested where there appears no Cause of Action 310 Warrant to confess a Judgment the Party dyes before it be confest this is a Countermand 310 Irisdictition See Sewers Judgment in an Inferiour Court reverst for want of Jurisdiction 28 Every Subject has the Liberty of removing his Suit into a Superiour Court 46 If there be several Contracts at several times for several Sums each under 40 s and altogether amount to a Sum sufficient to entitle the Superiour Court they shall be there put in Suit and not in a Court that is not of Record 65 73 In Assumpsit brought in an Inferior Court the performance of the Promise must be as well within the Jurisdiction as the Promise it self 72 Inferiour Courts ought not to award a Capias but upon Summons first returned and tho' a fault in the Process is aided by appearance yet an Action of false Imprisonment lies 220 249 Where infra Jurisdictionem is necessary to be set forth and alledged 240 243 The Liberty of the Subject is infringed by bringing him within a private Jurisdiction when the matter arises out of it 333 Action on the Case for the same 369 Iury. Where a Juror may be withdrawn 28 In case of Life and Member if the Jury cannot agree before the Judges of Assizes depart they are to be carried after them in Carts 97 Twelve necessary on a Writ of Enquiry as well as in a Venire 113 Where the Iury's eating or drinking at the charge of either Party shall avoid their Verdict and what other Actions shall be sufficient Cause to avoid it 125 Whether the Statutes requiring Jurymen to have so much Freehold extend to Corporate Towns 366 K. King THE King in bringing an Action may choose his County or wave that which he had chosen before as he may wave his Demurrer and joyn Issue 17 King and Council may disfranchise any Member of a Corporation The Walls of N. were ordered to be pulled down by King and Council à fortiori an Alderman there may be displaced upon just Cause 20 The King may stay the Proceedings and the Attorney General Enter a noli prosequi after the Jury are returned 33 Lords Spiritual and Temporal and Commons the three Estates and the King Head of all 325 Knight See Abatement L. Lancaster OF the Dutchy Court of Lancaster and its Jurisdiction 155 infra Latitat A Man may take out a Latitat before the Money is due yet the Party must not be Arrested upon it before 28 Lease See Recovery No reason to favour Long Leases By the antient Law a Lease for about 40 years was void and they are never without suspicion of Fraud 58 A Lease made to begin from the End of a Lease misrecited shall commence presently 83 A Lease without any Date specified or an impossible Date as from the 40th of September shall commence presently 137 What Act determins a Lease at Will 247 Leet The Kings Court granted to Lords of Mannours as derived out of the Town 26 Presentments may be there for the King and the Lord of the Mannor ibid. Fines in Leets where they may bedistrained for and where not 105 Presentment at a Leet quasht where the Court appears to be held above a Month after Michaelmas 107 Difference between the Stewardship of a Leet and a Court Baron 153 Libel The having a Libel in ones Lodging and not delivering it to a Magistrate was only punishable in the Star-Chamber unless the Party Maliciously published it 31 Liberties Of Returna Brevium 405. Their Vexation and Inconveniency 412 Liberties belonging to Monasteries came to the King on their Dissolution and that without the Aid of the Statute 32 H. 8. chap. 20 407 Limitations Whether the Statute of Limitations extends to bar a Promise between Merchants relating to Trade 90 Livery Livery within view where good and where not 186 London By the Custom of London a Debtor may be Arrested before the Mony is due to make him find Sureties 29 What Debts shall be Attachable by Foreign Attachments according to the Custom of London 112 113 Custom to commit Offenders for obstinately and contemptuously refusing to obey the Order of the Court of Aldermen Good 115 Whether they may Imprison a Stranger for Marrying their Orphan without License 178 Their By-Law to restrain the number of Carts Good 21 196 Of their Duty of Scavage 298 Custom to Disfranchise and commit a Freeman for speaking opprobrious Words of an Alderman Not good 327 Of their Duty of Water Baylage 351 M. Mandamus TO restore an Alderman 19 Lies not to restore a Town Clark where the Corporation have power to Grant the Office Durante beneplacito 77 82. So of a Recorder 342 Lies to admit a Deputy into an Office where the Office may be executed by Deputy 111 To swear a Churchwarden 115 267 To restore a Sexton 143 153 Lies for an Office but not for a Service ibid. Lies to an Inferiour Court to cause them to give Judgment according to a Statute 188 To restore a Common Council Man in a Corporation 302 To restore an Attorney in an Inferiour Court 331 To the Ecclesiastical Court to prove a Will 335 Misnomer When and how amendable 13 Name mistaken in the Issue if right before in the Record amendable 25 Monasteries See Liberties Pensions out of Monastery Lands where to be sued for 120 N. Naturalization OF Naturalization and Denization their General Effects and Operation 418 419 Notice Whether necessary upon a Counter bond to save harmless 36 37 Upon an Award 93 In what Cases necessary and where not 200 201 Nusance See Action Whether the erecting of a Glass-house be a Nusance 26 A Rope-Dancers Booth in the Street a Nusance and a Writ to the Sheriff awarded to prostrate the Bulding 169 O. Oath OF the Marshal of the King's Bench 65 No exception to the Oath of Allegiance that the words of
1 W. M. After which Judgment for the Defendants 166 That the said Defendants shall go sine die and have their Costs 167 Averment that the said Judgment remains in full force That the Goods in the said Action of Trespass and this of Trover are the same That the Conversion in this Action and the Taking in the other is the same That the Cause of Action was the same in both And that the Plaintiffs and Defendants are the same Et hoc parati sunt verificare unde petunt Judicium si praedicti the Plaintiffs Actionem suam versus eos habere debeant c. Not guilty to the residue of the Goods The Plaintiffs demur The Defendants joyn 168 Vsury Pleaded Vid. Debt 7. Way Action for stopping it Vid. Action on the Case 5. WE all knowing the Great Learning and Judgment of the Author do for the Benefit of the Public approve of and allow the Printing and Publishing of this Book Intituled The Reports of Sir Peyton Ventris Kt. Late One of the Justices of the Court of Common-Pleas J. Som̄ers C.S. J. Holt Geo Treby Ed Nevill Joh. Powell W. Gregory N. Lechmere Tho. Rokeby G Eyre Jo Turton John Powell Sam. Eyre April the 20 th 1965. The Second Volume TERMINO SANCTI HILLARII Anno Vicesimo primo secundo Caroli Secundi IN COMMUNI BANCO Craw versus Ramsey IN an Ejectment of Lands and the Rectory of Kingston upon Thames in Surrey Vpon Not Guilty pleaded the Jury found a Special Verdict to this effect viz. That Robert Ramsey Born in Scotland before the Accession thereof to the Crown of England had Issue four Sons Robert Nicholas John and George Antenati Robert died they do not find when leaving Issue three Daughters Margaret Isabel and Jane who were also Aliens and alive 1 Octob. 14 Car. 1. Nicholas had Issue Patrick born in England 1 May 1618. They also find that at the Parliament holden 10 Car. 1. in Ireland it was Enacted That all Persons of the Scottish Nation should be reputed the Kings Natural Subjects to all intents constructions and purposes of that his Realm of Ireland as if Born there And they find the Act of Parliament at large Nicholas Ramsey was alive at the making of that Act. John the third Son afterwards Earl of Holderness was Naturalized by Act of Parliament in England 1 Jacobi and purchased the Lands and Rectory in question and being seised 22 Jac by Indenture Tripartite between him of the First part Sir William Cocke and Martha his Daughter of the Second part and Charles Lord Effingham of the Third part In Consideration of a Marriage to be had between him and Martha did Covenant to levy a Fine to the use of himself for Life and afterwards to Martha for Life the Remainder to the Heirs Males of his Body the Remainder to his own right Heirs And 29 Septemb. 22 Jac. the Marriage was had and the Michaelmas Term after a Fine was Levied accordingly The 24 of Jan. 1 Car. 1. the Earl died without Issue Martha Entred and was seised for her Life and died 17 Car. Et eodem anno it was found by Office that the Earl of Holderness died seised of the Rectory as before and without an Heir and that King Charles anno decimo granted this Rectory to one Murray George the fourth Son of Robert was Naturalized by the Parliament here 7 Jac. He had Issue John the Defendant Nicholas died Patrick his Heir in 1651. bargained and sold to the Earl of Elgin and one Sydenham virtute cujus vigore Statuti c. they were seised prout Lex postulat and in 1662. bargained and sold for years to Amabel Countess of Kent and Jane Hart and afterwards Released to them and their Heirs in 1665. They being seised bargained and sold by Lease and Release also to Pullen and Neale who Entred and bargained and sold to Sir Lionel Talmash and West the Lessors of the Plaintiff upon whom John the Defendant Entred Vpon which the Action is brought and the great Question in the Case was Whether Patrick the Son of Nicholas might claim these Lands as Heir to the Earl of Holderness by virtue of the Act of Parliament in Ireland 10 Car. or that they should descend to the Defendant the Son of George Naturalized the 7 of Jac. in England Wyld and Archer who Argued first were of Opinion That however the Point was adjudged the Plaintiff could not have Judgment upon this Verdict for they do not find that Patrick entred or was seised but that he in 1651. did bargain and sell c. Virtute cujus the Bargainees were seised prout Lex postulat and then bargained and sold in 1662 and do not so much as find their Bargainees seised prout Lex postulat But they find the Defendant Entred and so the primer Possession is in him which is a good Title against the Plaintiff for whom none is found it not being found that Patrick Entred Again If the Naturalization in Ireland will serve in England the Title appears for the Daughters the Heirs of Robert the eldest Son for 't is found that he died but not when so it might be after the Act of 10 Car. But Tyrrell and Vaughan Chief Justice differed in these two Points As to the First They said it would be intended Patrick entred for a Verdict that leaves all the Matter at large to the Iudgment of the Court will be taken sometimes by Intendment as well as where the Jury Conclude upon a Special Point 2 Cro. 64. find an Incumbent Resigned the Resignation shall be intended accepted So in 4 Co. Fullwood's Case it was found that one came before the Recorder of London and Mayor of the Staple recognovit se debere c. and did not say per scriptum suum Obligatorium nec per formam Statuti yet intended so Vid. Hob. 262. And where they find the Bargainees seised prout lex postulat that doth not leave it doubtful whether seised or no but whether by right or wrong for Seisin must be taken as found expresly Neither do they find any other in possession nor that the Defendant made any Claim in Twelve years after which enforces the Intendment as before And it is found expresly that Pullen and Neale Entred in 1665. so that the Defendant had not the primer Possession however or if he had he should not have Judgment if no other Title were found for him as is Resolved in 1 Cro. 42. Hern and Allen's Case As to the Second It shall be intended Robert died before 10 Car. For he is found an Alien and shall be presumed to have continued so during his Life unless found to the contrary then the Discent to the Daughters is obstructed by the Incapacity of their Father And tho' when the Title is found for the King the Court shall adjudge for him because the Kings Courts are intrusted with his Rights 't is not so of any other person but they shall take no
usque diem martis prox ' post tres septiman ' Sanct ' Michael de audiend ' inde Judicio suo quod iidem Justic ' hic inde nondum c. Bockenham versus Thacker IN an Action upon the Case the Plaintiff declared that J. S. was indebted in a sum of Mony to the Plaintiff not exceeding 12 l and that the Defendant as he the Defendant said was indebted to J. S. in 12 l or there about That the Defendant in consideration that the Plaintiff at his request would procure an Order from J. S. in writing to the Defendant for payment of the Mony which the Defendant owed J. S. or any part thereof to the Plaintiff he promised to pay the Mony according to such Order The Plaintiff avers that he procured such Order from J. S for the Defendant to pay him 5 l which he shewed to the Defendant and the Defendant refused to pay c. The Defendant demurs generally to the Declaration Levinz for the Defendant argued that it was no sufficiently set forth that the Defendant was indebted to J. S. and if not there was no consideration Cur ' contra for it must be intended that he was indebted for 't is set forth that the Defendant said so but if not the procuring the Note at the Defendants request by the Plaintiff was a sufficient consideration It was Objected further that the Plaintiff had not alledged that he procured the Note at the request of the Defendant as the agreement was and for that 3 Leon. 91. was cited in consideration that he should repair such part of the House at his request it was held naught for not laying the repairing to be done at request Sed non allocatur for it shall be intended to have been done at request and so is Bretton and Boltons Case 3 Cro. 246. 2 Cro. 404. Berisfords Case and Poynters Case 1 Cro. Sed Nota All those Cases are after Verdict and so is the above cited Case See more of this Case afterwards Termino Sancti Michaelis Anno 1 W. M. In Communi Banco SErjeant Trinder moved the Court to set aside a Verdict recovered in an Action for the mesn Profits after a recovery in an Ejectment shewing that the Defendant in the Ejectment had brought another Ejectment since and recovered so that the first recovery was disaffirmed and therefore there ought to have been no recovery for the mesn Profits but the motion was denied by the whole Court Leigh versus Ward DEbt upon a Bond the Condition was to perform an Award and the Defendant pleaded that the Arbitrator made no Award The Plaintiff replied that after the Bond entred into and before the time set in the Condition for making of the Award scilicet tertio die Novembris anno c. per quoddam Scriptum suum arbitr ' adtunc ibidem fact ' c. and so sets forth the Award upon which the Defendant demurred because no place was mentioned where the Award was made Tremain for the Plaintiff said that the adtunc ibidem should refer to the place mentioned in the Declaration where the Bond was made Cur ' contra The adtunc ibidem cannot be referred to the place in the Declaration and there is no place mentioned in the Replication Whereupon Iudgment was given for the Defendant Memorandum Mr. Justice Eyres came to this Court at the desire of the Court of Kings Bench who were trying of a Cause at the Bar to know the Opinion of the Court of Common Pleas upon this Question An Infant who was a party to the Ejectment that was upon trial had answered a Bill in Chancery by his Gardian whether that Answer could be read in Evidence against the Infant And the Opinion of the whole Court was that it could not be read for it is not reason that what the Gardian swears in his Answer should affect the Infant Blake versus Clattie TRespass Quare clausum fregir diversa onera equina of Gravel had carried away per quod viam suam amifit After Verdict it was moved in Arrest of Judgment that the diversa onera equina was incertain and then mentioned the loss of his Way and had set forth no Title to the Way nor set forth any certainty of it It was said on the other side that the Incertainty was aided by the Verdict and the other Matter about the Way was only laid in aggravation of Damages But the Court held the Exceptions material and thought it would be very inconvenient to permit such a Form of putting in of a Way to a Declaration in Trespass Anonymus IN an Action of Debt for Rent the Plaintiff declared in Michaelmass Term last and laid the Demise to be Anno primo Jacobi Secundi Regis The Defendant pleaded Nil hab ' in Tenementis and the Plaintiffs Attorney delivered a Copy of the Issue where the Demise was laid Anno primo Regis nunc and so the Nisi prius Roll was at first but it was observed that the Plaintiffs Attorney had amended it but gave no Notice thereof to the Defendants Attorney nor delivered him a new Copy of the Issue and so went to Trial which proceeded the Nisi prius Roll being right and a Verdict was found for the Plaintiff And it was moved by Serjeant Rotheram that there should be a New Trial granted for the Defendant was surprized to find the Record right when they had a wrong Copy of the Issue But it appearing to the Court that the Defendant notwithstanding proceeded in his Defence and the Verdict was after a long Evidence that the Court would not set it aside but ordered the Plaintiffs Attorney to attend for the undue Practice in making of an Amendment in such manner Bailes versus Wenman IN an Ejectment upon a Special Verdict the Case appeared to be thus That Articles of Marriage were made between the eldest Son and Heir apparent of the Defendant and Martha one of the Daughters of one William Nailor whereby the Defendant was to settle the Lands in question upon the Lessor for his Life and after his decease upon Martha for her Ioynture with a Proviso that the Lessor should make a Lease of the Premisses to the Defendant for 99 years if the Defendant and Susan his Wife should so long live and that Susan died before the Lease made to the Plaintiff So the only Question was Whether the Lease for 99 years determined by the Death of said Susan The Court upon the first opening without Argument were all of Opinion that it did determine and Ordered Judgment to be Entred for the Plaintiff 5 Co. 9. in Brudnell's Case Daniel and Waddington 2 Cro. 378. Vide Dyer 67. and 1 Inst 225. a. Trupenny's Case Vide Anderson 151. A Lease made to two for their Lives absque impetitione vasti durant ' vitis of the Lessees and held that this Priviledge would hold to the Survivor for 't is reasonable to give the Priviledge as large a Construction as
the Scrivener and that the Agreement of the parties was for no more than just Interest and this was held a good Averment to save the Bond from being void by the Statute of Usury And a Case between Lewknor and Mountague was cited where the Condition of a Bond was If William Mountague shall do c. whereas there was William Mountague the Father and William Mountague the Son and by the Averment of the meaning of the parties this was expounded of the Son But the whole Court were here of Opinion that the Averment in the Case at Bar was not to be admitted for it would carry the Condition to another sense then the words import As to the Case upon the Statute of Usury there it depends upon the Agreement and the party may shew any to make appear there was no Corrupt Agreement Vid ante hoc Termino the Case of Bush and Buckingham And as to Lewknor's Case the Averment was but to ascertain which William Mountague was meant and stands well with the words of the Condition But whether as the Condition is penned for the payment to be during the Life of Peter Becket and the Minority of Mary that the payment should determine upon the death of Peter the Court did not deliver their Opinion according to the Opinion in Brudnell's Case in 5 Co. 9. it would seem that it should But the Case of Cross and Tooker in Latch 162. seems strong to the contrary Vid. that Case in Popham 201. and in 1 Anderson 151. absque impetitione vasti during their Lives held that the Priviledge shall continue to the Survivor But the whole Court held the pleading of the tender insufficient because it is not said that Peter Becket refused otherwise if a place of payment had been in the condition and it had been shewn in pleading that the party which was to receive the Mony was not there 1 Cro. 888. Plea of tender without setting forth a refusal not good Lea and Exellies Case And the acceptance after the day signifies nothing and upon that point the Court were of Opinion for the Plaintiff but Iudgment was not given because the parties shewed an inclination to compose the business Mason versus Watkins AN Action of Debt upon a Bond of 20 l The Defendant demanded Oyer of the Condition which was that the Obligor should not himself bring any Evidence at the Assizes to prove the two Cows now in question between one Owen Mason the younger and the said Watkins to be the Cows of the said Watkins or of Robert Gillo and that the said Gillo shall set in a Bill of Ignoramus that then the Bond should be void The Defendant pleaded quod ipse de deb ' praedict ' virtute Scripti Obligat ' praedict ' onerari non debet because that one of the said Cows was the Cow of the said Watkins and the other of the said Gillo and that before the Bond Owen Mason jun. in the said Condition mentioned being the Plaintiffs Son stole the said two Cows and was imprisoned thereupon and the Defendant Watkins was bound by Recognizance to prosecute him at the Assizes for the said Felony and there the said Mason jun. was indicted and convicted and the Defendant did give Evidence that one of the Cows was his prout bene licuit and that the Defendant did not give any Evidence by himself or any one else to prove the two Cows to be the Cows of the Defendant or the Cows of the said Gillo hoc paratus est verificare c. unde petit judicium c. To this the Plaintiff demurred and upon the first opening Iudgment was given for the Defendant for the Condition is against Law viz. to shift off evidence of Felony and that makes the Bond void vide Jone's Case 1 Leon. 203. and the Court recommended it to Serjeant Pawlet who was a Iudge in Wales where the Plaintiff lived to see to have him prosecuted for taking such a Bond. Termino Sancti Hillarii Anno 1 2 W. M. In Communi Banco Trippet versus Eyres Lond ' ss Debt upon a Bond to perform an Award JOHANNES Eyre nuper de Sheffeild Mannor in Com' Eborum Gen ' al' dict' Johannem Eyre de Sheffeild Mannor ' in Com' Eborum Gen ' summonitus fuit ad respondend ' Burrowes Trippet Gen ' de placito qd ' reddat ei trecentas libras quas ei debet injuste detinet c. Et unde idem Burrowes ê‘ Rich. Milward Attorn ' suum dic ' qd ' cum praedict ' Johannes nono die Marcii Anno Regni Domini Regis nunc tercio apud London ' in Paroch ' beatae Mariae de Arcubus in Warda de Cheap ê‘ quoddam Scriptum suum Obligatorium concessisst se teneri eidem Burrowes in praedict ' trecentis libris solvend ' eidem Burrowes cum inde requisit ' fuisset praedict ' tamen Johannes licet saepius requisit ' praedict ' trecentas libras eidem Burrowes nondum reddidit set ill ' ei hucusque reddere contradixit adhuc contradic ' unde dic ' qd ' deteriorat ' est dampnum habet ad valentiam centum librarum Et inde ê“duc ' Sectam c. Et ê“fert hic in Cur ' Scriptum praedict ' Quod debitum praedict ' in forma praedict ' testatur cujus dat' est die anno supradictis c. The Defendant craves Oyer of the Condition Et praedict ' Johannes ê‘ Johannem Gatacre Attorn ' suum ven ' defend ' vim injur ' quando c. Et pet ' audit ' Scripti praedicti ei legitur Pet ' eciam audit ' conditionis ejusdem Scripti ei legitur in haec Verba ss The Condition of this Obligation is such That if the above-bounden John Eyre his Heirs Executors and Administrators for his and their parts and behalfs do in all things well and truly stand to obey abide perform fulfill and keep the Award Order Arbitrament final End and Determination of Francis Barlow of Sheffeild in the said County Gent. and Robert Soresby of Sheffeild aforesaid Gent. Arbitrators indifferently named elected and chosen as well on the part and behalf of the above-bounden John Eyre as of the above-named Burrowes Trippet to Arbitrate Award Order Iudge and Determine of and concerning all and all manner of Action and Actions Cause and Causes of Actions Suits Bills Bonds Specialties Iudgments Executions Extents Quarrels Controversies Trespasses Damages and Demands whatsoever at any time or times heretofore had made moved brought commenced sued prosecuted done suffered committed or depending by or between the said Parties or either of them so as the said Award be made and put in Writing or by word of Mouth on or before the ninth day of April now next ensuing but if the said Arbitrators do not make such their Award of and concerning the Premisses by the time aforesaid that then if the said John Eyre his Heirs Executors and Administrators
dicti termin ' Mille annor ' tunc ventur inexpirat prout per eand ' Indentur ' plenius apparet ad quam quidem concession ' The Tenant for years attorns dictus Ricardus Cale postea scilicet octavo die Julii Anno regni dicti nuper Regis Caroli Secundi vicesimo supradicto apud praed paroch sancti Clementis Dacorum eodem Ricardo Cale tunc tenent tenementorum praed cum pertin virtute dimission ' praed sibi ut praefertur fact existen se attorn ' agreavit virtute cujus quidem concession attornament praed p̄textu praedict Thomas Dowse pater de praed revercon ' ten̄torum praedict ' cum pertin ' suit possessionat ' pro resid ' dicti term ' Mille annorum Ipsoque Ricardo Cale sic de tenementis preadict ' cum pertin ' ut p̄fertur possessionat ' existen ' Idem Ricardus Cale in vita sua scilicet octavo die Julii Anno regni dicti nuper Regis Caroli Secundi decimo nono apud praedict ' paroch ' sancti Clementis Dacorum condidit test ' The Tenant in possession makes his Will and makes the Defendants Father his Executor ult ' volunt ' sua in scriptis inde constituit praedict ' Johannem Cale Executor ' praedict ' Ricm̄ Cale postea post attornament ' praedict ' fact ' scilicet decimo die Decembris anno regni ducti nuper Regis Caroli secundi vicesimo secundo apud praed ' paroch ' sancti Clementis Dacorum obiit de tenementis praed ' sibi ut p̄fertur dimiss sic ut praefertur possessionat ' post cujus mortem praed ' Johannes Cale onus execution ' And died possessed The Defendant proved the Will and entred and was possessed test ' praedict ' super se suscepit ut Executor test ' praedict ' in tenementa praedict ' cum pertin ' intravit fuit inde possessionat ' Et sic inde possessionat ' existen ' praedictoque Thoma Dowse patre de revercon ' inde ut p̄fertur etiam possessionat ' existen ' ipse praedict ' Thomas Dowse pater postea scilicet vicesimo sexto die Februarii anno regni dicti nuper Regis Caroli secundi tricesimo sexto apud paroch ' Then the Grantee in Reversion made his Will and devised the Reversion to the Plaintiff for Life and after his decease to his Son in Tail sancti Clement ' Dacorum praedict ' fecit condidit testm̄ ult ' voluntat ' sua in scriptis per eadem test ' ult ' voluntat ' sua dedit devisavit inter al' praedict ' revercon ' tenementorum praedict ' cum pertin ' eidem Thormae Dowse modo quer ' filio suo pro termino vitae ejusdem Thomae filii post ejus decess tunc cuidam Thomae Dowse filio praedict ' Thomae Dowse modo quer ' haered ' de corpore ejusdem Thomae filii praed ' Thomae modo quer ' exeun ' de eodem testō idem Thomas Dowse pater constituit dict' fil' suum Thomam Dowse modo quer ' sol ' Executor ' Posteaque scilicet decimo sexto die Aprilis anno tricesimo secundo supradicto apud paroch ' And made the Plaintiff Executor And died sancti Clement ' Dacorum praedict ' in Com' praed ' praedict ' Thomas Dowse pater obiit de praedict ' revercon ' tenementor ' praed ' cum pertin ' in forma praed ' possessionat ' post cujus mortem praedict ' Thomas Dowse modo quer ' scilicet vicesimo sexto die Januarii anno regni dicti nuper Regis Caroli secundi tricesimo tertio supradicto test ' The Plaintiff proved the Will praedict ' debita juris forma apud p̄dict ' paroch ' sancti Clementis Dacorum probavit ac onus execuconem test ' praedict ' super se suscepit praedict ' revercon ' tenementorum praedict ' cum pertin ' ratione legat ' praedict ' dict' vicesimo sexto die Januarii anno tricesimo tertio supradicto apud praedict ' paroch ' sancti Clement ' And claimed the Tenements Virtute legat ' Dacorum clamavit virtute cujus quidem legationis idem Thomas Dowse modo quer ' de revercon ' tenementor ' praedict ' cum pertin ' pro resid ' dicti termini Mille annorum fuit possessionat ' Et sic inde possessionat ' existen ' praedictoque Ricardo Cale de tenementis praedict ' cum pertin ' in forma praedict ' ut praefertur possessionat ' existen ' licet Idem Thomas Dowse modo quer ' bene fidelit ' observavit perimplevit performavit custodivit omnia singula convencon ' concession ' articul ' agreament ' in Indentur ' dimission ' superius primo recitat ' spec ' ex parte praedict ' Johannis Comit ' Protestando That the Defendant did not perform the Covenants of his part de Clare haered ' assign ' suor ' observand ' performand ' perimplend ' seu custodiend ' secundum formam effect ' ejusdem Indentur ' protestandoque quod praedict ' Johannes Cale non tenuit observavit perimplevit performavit seu custodivit aliqua convencon ' concession ' articulos agreament ' in eadem Indentur ' spec ' ex parte praedict Ricardi Cale Executor Administrator Assign suorum observand performand perimplend seu custodiend secundum formam effect Indentur dimission praedict ' in facto idem Thomas Dowse modo quer dic quod praedict Johannes Cale sic ut praefertur possessionat existen post mortem dicti Thomae Dowse patris ante finem praedict termini quadragint unius annorum per eandem Indentur ' Breach assigned in permitting the Premisses to be out of Repair concess scilicet decimo tertio die Septembris anno Domini Millesimo sexcentesimo octogesimo quarto apud paroch sancti Clementis Dacorum praedict in Com. praed permisit un ' domum ad valentiam ducentarum librarum super praedict ' dimiss praemiss per praedict Ric ' Cale in vita sua post dimission ' praedict ' sibi ut praefertur fact duran dimission ill erect fore penitus prostrat consumpt ' The particulars totalit ruinat in omnibus partibus inde pro defectu supportacon inde Et praed ' Johannes Cale sic ut praefertur possessionat existen ad finem praed ' termini quadraginta un ' Another breach assigned for want of Repairs annorum qui finivit ad Festum Natalis Dom Anno Domini MDCLXXXVIII praed ' dom sic prostrat ' consumpt ' total ' ruinat ' reliquit contra formam effect convencon praed ' in ea parte quodque praed ' Johannes Cale sic ut praefertur possessionat ' existen ' post mortem patris sui praed ' duran praed ' termino quadraginta unius annorum scilicet decimo die Maii anno regni dicti nuper Regis Caroli secundi vicesimo quarto continue postea usque
at the end of the said term and so the said Defendants broke the Covenants ad damnum of the Plaintiff 300 l The Defendant pleaded that the said Richard Cale in his life-time did demolish the three Houses demised and upon the ground whereon they stood did erect three new Houses according to the agreement which during the term were kept well repaired and at the end of the term left in good repair and so yielded up according to the Covenant aforesaid de hoc ponit c. And as to the not repairing the Pavements traverseth that also and the like as to repairing of Tiles and Walls The Plaintiff as to the not repairing of one House in the Declaration mentioned and delivering it up well repaired demurs to the Defendants Plea which Demurrer came to be argued this Term and the sole question was upon this Covenant whether the Defendant being obliged only to build three Houses and having built one more whether the Covenant did not bind him to repair and deliver up that House well repaired as well as those which were agreed to be built And the Court were of Opinion that the Covenant did extend to the other House as well as to the three which were agreed to be built For in the last Covenant which is to deliver up well repaired 't is dicta premissa ac Domos Edificia superinde fore erect which is general and 't is the rather so to be taken because in the first Covenant for keeping in repair during the term 't is the Houses agreed to be built which words agreed to be built are left out in the last Covenant which the Court took to be a distinct Covenant Rokeby doubted it seeming to him to be all as one Covenant and so all the subsequent matter concerning leaving the Houses well repaired should be restrained and understood of those agreed to be built But Iudgment was given for the Plaintiff upon the reasons aforesaid It was also objected on the part of the Defendant that Dowse the Plaintiff was not an Assignee in this Case to bring Covenant for that the term in the reversion was devised to him for Life only and if he died within the Term then to his first Son c. To this it was answered that the Devise of the term to him passed the whole Estate and the remainder to the Son was but a possibility and an executory Devise Welbie versus Phillips IN Debt for Rent the Plaintiff declared upon a Demise made the 25th of March Anno nuper Regis Jac. 4. of one Messuage to hold from thenceforth quamdiu ambabus partibus placeret yielding 10 l Rent quarterly and avers that the Defendant entered by virtue of the said Demise and continued possessed of the Premisses till Christmas then next following and for 50 s a quarters Rent ending at the said Christmas Day he brings his Action and so lays two several other Demises of two other Houses to begin at the same time under the same Rent and demands a quarters Rent upon each at Christmas aforesaid in all 7 l 10 s which the Defendant did not pay which he lays ad damnum 5 l The Defendant demurred to this Declaration for that he sues for a quarters Rent upon each Demise ending at Christmas whereas there were two quarters incurred before which he doth not shew were paid and so sues for less than upon his own shewing appeareth to be due and the Case of Baily and Offord 3 Cro. was cited where upon a Demise rendring 31 s per annum at our Lady Day and Michaelmas the Plaintiff declared for 15 s and 6 d due for a years rent ending at our Lady Day and held naught because he demands but 15 s and 6 d and doth not shew that the rest of the years Rent was satisfied and the Case of Clothworthy in 3 Cro. where in a Writ of annuity the Plaintiff demanded the Arrears incurred at Michaelmas 3 Car. 1. and brought his Writ the 16th of April 4 Car. 1. and said in that Case by Maynard that a man cannot bring an Action for part of a Debt without he shews the rest satisfied Vide 2 Cro. 499. But the Court gave Iudgement for the Plaintiff and said this was not like the Cases cited for in the first Case of Baily the whole years Rent is said to be due and yet demands but half a year And for the Case of Clothworthy there the Iudgment as appears by 3 Cro. and Ro. Abr. 1 part 229. was that he should recover the Arrears before the Writ and pending the Writ whereas he demanded the Arrears but to Michaelmas before the Writ brought and so the Iudgment was for more than was demanded but in this Case every quarters Rent is a several Debt and distinct Actions may be brought for each quarters Rent and so not like Debt brought for part of the Mony upon a Bond or Contract Vide for this 7 H. 6. 26. a. Allen 57. Noy's Rep. 45. Chase versus Sir James Etheridge THe Plaintiff in an Action for Words had taken out an Original and delivered a Declaration which the Defendant upon searching for the Instructions given by the Plaintiff to the Cursitor found differed in divers material things from the Original and thereupon the Defendant pleaded the Statute of Limitations that the words were not spoken within two years The Plaintiff suspecting some miscarriage had been upon which the Defendant as he conceived did rely for the Plaintiff knew the Fact would not serve the Defendant to plead the Statute he found that he had mistaken his Original and upon that petitions the Master of the Rolls for another Original that should warrant the Declaration delivered and had it granted and filed in Court whereupon the Defendant moved the Commissioners of the Great Seal and shewed the whole matter upon which they set aside the Order of the Master of the Rolls and ordered an Original to be taken out according to the first Instructions given to the Cursitor And now the Court was moved here that the last Original might be filed and so it was ordered by the Court for that taken out by the Order of the Master of the Rolls was unduly taken out Whitaker versus Thoroughgood BEnjaminus Thoroughgood Mil. attach fuit per breve Domini Regis Dominae Reginae de privilegio è Cur. hic emanen ad respond Edwardo Whitaker Gen. un Attorn Cur. Domini Dominae Regis Reginae de Banco juxta libertat privileg ejusdem Cur. pro hujusmodi Attorn aliis Ministris de eodem Banco a tempore quo non extat memoria usitat approbat in eadem Cur. de placito transgressionis super casum c. and so declares in propria persona in an Action for that the Defendant being a Justice of Peace in the time of the late King James made a Warrant directed to the Constable charging the Plaintiff with being outlawed of High-Treason ubi re vera c.
late Case and if this sicut debuit is not sufficient 't is laid further in the Declaration that he did not permit the Plaintiff to have the benefit of this Foldage But the Court held the Declaration insufficient for that there is no Authority in any Book of Law to shew that the word Faldagium did imply so much as was pretended on the Plaintiffs part Faldagium is to have Sheep folded in his ground as Falde cursus is a Sheep-walk or feed for his Sheep and if it be the usage in case of Foldage for the Owner of the Sheep to bring his Sheep to the Fold it ought to have been so set forth for the Court cannot take notice of the private usages of Countries and if the Faldagium did imply what the Plaintiff would have it then it should have been set forth that the Plaintiff had set up a Fold in the Land where the Sheep were to have been folded for he was to do the first act which must have been shewn if all the particulars had been set forth and sicut debuit is not enough here for the obscurity of the word Faldavit so that it doth not appear to the Court what ought to have been done on the Defendants part and to say non permisit Querentem habere beneficium Faldagii was not good without shewing how he disturbed him as 8 Co. in Francis Case Sed nota That was upon Demurrer but here 't is not said non permisit the Plaintiff habere Faldagium or non permisit eum faldare but non habere beneficium faldagii so that it was not certain what was meant for the Sheep might be folded and yet he might be deprived of the benefit of the foldage And the Chief Justice said here the Prescription is laid to have the Sheep going infra Communes Campos Territoria de Grancester to be folded and Territoria is a word unknown in the Law so no certainty in the Prescription Note Here a Prescription is laid in a Body Aggregate in a que Estate but that was held to be well enough because for a thing appurtenant to the Mannor Vide 2 Cro. 673. Kelw. 140. B. 1 Inst 121. a. But for the Reasons above mentioned the Iudgment was stayed by the Opinion of the whole Court George versus Butcher DEbt upon a Bond. The Defendant demands Oyer of the Condition which was to perform certain Articles of Agreement and the Defendant set forth the Articles made between the Defendant of the first part the Plaintiff of the second part and Rebecca Morse Widow Joseph Morse Samuel Morse John Morse Daniel Morse Nathaniel Morse Robert Morse and Thomas Morse Sons of the said Rebecca of the third part by which it was recited that a Marriage was intended between the Defendant Butcher and the said Rebecca by means whereof the Defendant would become possessed of her Personal Estate and in consideration thereof the Defendant covenanted by the said Articles inter al' having also recited that Robert Morse deceased Father of the said Joseph Morse Samuel Morse John Morse Daniel Morse Nathaniel Morse Robert Morse and Thomas Morse had by his Will bequeathed cuilibet ipsorum praed ' Josepho Samuel ' Johan ' Daniel ' Robert ' Tho' omitting Nathaniel the sum of 50 l with the Plaintiff that the said Defendant would pay praed ' Josepho Samuel ' Johan ' Nathaniel ' Robert ' Tho' praedict ' seperal ' legationes vel summas quinquaginta librat ' And the Defendant pleads further that he paid to the said Joseph Samuel John Daniel Robert and Thomas the said several sums of 50 l and shewed performance of all the other Articles And to this the Plaintiff demurred because that he did not shew that he paid 50 l to Nathaniel Morse and expresly covenanteth to pay to the said Nathaniel and the rest the said several Legacies or sums of 50 l Sed non allocatur for in the recital of the said Bequest by the Will there is nothing mentioned to have been bequeathed to Nathaniel and tho' he covenants to pay to Nathaniel as well as the rest yet it is legationes vel summas praed ' and there being no Legacy to Nathaniel and that appearing by the recital of the Will his Covenant shall not oblige the Defendant to pay him any thing Et sic Judicium ê“ Defendente Trethewy versus Ellesdon IN Replevin The Plaintiff declared of taking his Cattle in a place called the Barnclose in Branwell in the County of Cornwall The Defendant made Conusance as Bayliff of Elizabeth Cossen and shews that Nicholas Cossen was seised in Fee of a Messuage and Lands of which the place where was and is parcel and being so seised the 9th of September in the fourteenth year of the late King Charles the Second by his Deed indented produced in Court did grant to the said Elizabeth Cossen an annual Rent of 10 l to be issuing out of the Premisses to have to the said Elizabeth and her Assigns for term of her Life payable at the usual Feasts and in case it were arrear that it should be lawful for her to distrain by virtue whereof the said Elizabeth Cossen who is still living became seised of the Rent for her Life and avers that the usual Feasts are our Lady Midsummer Michaelmass and Christmass and for 40 l for four years Rent ending at Michaelmass 1688. the Defendant took the said Cattle as a Distress for the arreat of Rent c. The Plaintiff demanded Oyer of the Indenture which was read containing as followeth viz. This Indenture made the 29th day of September c. between Nicholas Cossen c. of the one part and Elizabeth Cossen c. and Nicholas Cossen the younger Son of the said Elizabeth of the other part of witnesseth That whereas the said Elizabeth Cossen hath given and surrendred into the hands of the said Nicholas Cossen one Indenture of Lease of an Annuity dated the 15th of March 1657. of ten pounds yearly going out of all that his Barton and Demesn called Melder for a term yet to come as in and by the said Indenture of Lease more fully and at large appeareth hath Given Granted and Confirmed and in and by these Presents doth Give Grant and Confirm unto the said Elizabeth Cossen her Heirs and Assigns by these Presents one Annuity or Yearly Rent of ten pounds to be issuing and going out of all that his Barton c. to Have Receive and take yearly the said Annuity to the said Elizabeth Cossen and Nicholas Cossen the younger and the Survivor and Survivors of them at the usual Feasts in the Year by equal Portions and if it shall happen the said Yearly Rent to be behind after any of the said Feasts that then it shall and may be lawful to and for the said Elizabeth during her Natural Life and so the said Nicholas Cossen the younger after her Death to enter into the Premisses and distrain c. In Witness whereof
it could not appear upon the Record but that the Verdict was against the Plaintiff upon the mistake of the Action whereas here it appears upon the Matter at large set forth in the Special Verdict that Judgment was given against the Plaintiffs upon the Merits of of the Cause And the Court were of Opinion that the Plea in Bar was good in this Case but they took the Case of Putt and Royston to be a Case of the same nature For tho' the Issue were General yet in regard of the Averments which in every such Plea there must be it appears to the Court that the Matter was the same as well as here it doth upon the Special Verdict and if it were not the same so that the Plaintiff was barred to the former by mistaking the Nature of his Action the Averment might be traversed Therefore by reason of that Case Adjudged and the Importunity of the Plaintiffs Leave was given by the Court to speak further to the Case the next Term. The Earl of Mountague versus The Lord Preston IN an Action on the Case for the Profits of the Office of Master of the King's Wardrobe the Plaintiff Declared That King Charles the Second in the 23th year of his Reign granted him a Patent to hold the said Office for Life reciting a former Grant thereof to the Earl of Sandwich and the Surrender of that Grant And that the Defendant by colour of a Patent granted to him in the First year of the late King James had entred upon the Office and taken the Profits and had deprived the Plaintiff of the whole benefit and profit of the Office Vpon Not guilty pleaded it came to a Trial at the Bar this Term and it was insisted upon for the Defendant That the Plaintiffs Patent having recited a former Grant that they must prove that Grant to have been surrendred To which it was Answered That if they took advantage of the Recital they must admit all that was recited as well the Surrender as the Grant And of that Opinion was the Court. Then the Defendant produced the Earl of Sandwich's Patent and this the Court held would put the Plaintiff to prove a Surrender And a Surrender was shewn in Evidence accordingly Note It was said in an Action of this Nature that it is not necessary to shew every particular Sum received by the Defendant But it is a good Evidence for the Damage to shew the Profit of the Office communibus annis Anonymus AFter an Extent upon a Statute and a Liberate out of this Court the Writ was Habere fac ' terr' tenementa instead of Liberari facias and it was moved to amend the word Habere in the Writ and to make it Liberari And after divers Motions the Court Ordered the Amendment to be accordingly because it is a Judicial Writ 8 Co. 157. a. 1 Cro. 709. A Writ of Enquiry was awarded to the Sheriffs of London and it was quod Inquirat instead of Inquirant and it was amended Vid. the Case of Walker and Riches 3 Cro. 162. and the Case of Keer and Guyn Hob. 90. but in that Case the Roll was wrong in a very material thing for it was not said in the Elegit the Lands and Tenements of the Defendant Anonymus AN Action of Debt was brought in this Court for a Sum of Money recovered in the Hundred Court and the Defendant was admitted to wage his Law tho' at first the Court doubted Vid. Mo. 276. for a Wager of Law to an Action of Debt brought for an Amercement in a Court Baron Note When the Defendant hath his Hand upon the Book before he is sworn the Plaintiff is to be called and he may be Non-suited The Defendant is to bring his Compurgators but they may be less than Eleven and they are sworn de credulitate Anonymus AN Action was brought for speaking of these words of the Plaintiff He broke my House like a Thief And upon Not guilty pleaded a Verdict was found for the Plaintiff And the Court held the words not to be Actionable Anonymus IN an Action for Words spoken of the Plaintiff in saying He was a Clipper and Coiner After Verdict upon Not guilty pleaded it was moved in Arrest of Judgment that the Words did not charge him with Clipping and Coining of Money and Clipping and Coining might be apply'd to many other things But the Court held the Words to be Actionable in regard of the strong Intendment and such Words are understood by those that heard them to mean Clipping and Coining of Money Anonymus AN Attorney brought an Action for that the Defendant said of him He is a Cheating Knave and not fit to be an Attorney After Verdict for the Plaintiff it was moved in Arrest of Judgment that there was no Communication of his Profession and the Words did not necessarily relate to his Practice But the Court held the Action would lye for saying That he was not fit to be an Attorney shewed plainly that Cheating Knave had reference to that Anonymus UPon a Motion for a New Trial it appeared that the Solicitor for the Plaintiff who also was an Attorney had wrote two Letters to two of the Jury before the Trial importuning them to Appear and setting forth the Hardships that his Client had suffered in the Cause and how he had Verdicts for his Title The Court set aside the Trial for this Cause and Committed the Solicitor to the Fleet for this Misdemeanor being Embracing of a Jury and before his Discharge made him pay Ten pounds to the party towards the Charges of the Trial. Pretious versus Robinson THe Cause being at Issue in Hillary Term last a Venire was awarded and a Jury Retorned upon it and in Easter Term after another Venire was awarded and a Trial was by a Jury Returned upon the two Venire's Vpon this the Court set aside the Verdict for there was no Authority for the two Venire's so all the Proceedings thereupon are void and not aided by the Statute of 16 Car. 2. Cooke versus Romney AN Action of Covenant was brought against two and it was quod teneat conventionem instead of teneant and after a Writ of Error brought it was moved that it might be amended and made teneant It was Objected That False Latin in an Original could not be amended as hos breve for hoc breve so in Waste destrictionem for destructionem Blackamore's Case 8 Co. But the Court granted the Motion and ordered the Amendment And it was said of late days it had been done in case of a word Mistaken in an Original as in Ejectment divisit for dimisit Vid. in Blackamore's Case the like 159. b. Imaginavit for imaginatus est was amended Anonymus IN Trover and Conversion for a Mare Vpon Not guilty pleaded and a Verdict for the Plaintiff it was moved in Arrest of Judgment that the Mare was said ad valentiam and it should have been pretii Sed non
the putting them to Sue severally as they must do at Law But here there is but part of them that Sue and then they appear to be Officers in the Ship that Sue and so not to have this Priviledge of the Common Seamen to Sue for it was alledged that this practice had been obtained but of late and in favour to them and here it appears that the Contract for the Wages was joynt with the Owners and they have sued but two of them and so they shall be charged with the whole But the Court denied the Prohibition for they have been ever alowed to proceed for Marriners Wages and tho' the Plaintiffs have an employment in the Ship as Purfer Boatswain or the like they are Marriners as well as others and may sue in the Admiral Court for their Wages and they having Iurisdiction shall proceed in their own way tho' different from our Law as to the joyning of all the Plaintiffs or Defendants and if the Proceeding be not according to their Law the Remedy lies there Note It was said by one of the Admiralty that tho' the Suit be against some of the Owners the course there is not to charge them with the whole but according to their proportionable parts Adams versus Cross IN a Replevin against Cross and two others for taking of divers Goods at Ware in quodam loco vocat ' a Messuage there The Defendants made Conusance as Bayliffs of Jane Cross and they say that before the Caption she was seised in her Demesn as a Fee at the Will of the Lord of the Mannor according to the Custom of the Mannor of and in the aforesaid Messuage which said Messuage is and time out of mind hath been parcel of the said Mannor and demised and demisable by Copy of Court Roll c. and being so seised 24 June 1687. she demised the said Messuage to the said Adams from thenceforth at Will reserving for so long time as the said Adams should hold it the yearly Rent of 8 l by equal Quarterly payments By virtue of which Demise the said Adams entred and was and yet is possessed and for 14 l being a Year and three Quarters Rent ending at the Feast of the Nativity of St. John Baptist last past they as Bayliffs to the said Jane distrained the said Goods being in the House c. To this Avowry the Plaintiff pleaded an insufficient and frivolous Bar and now took Exceptions to the Avowry for that the said Jane Cross is therein set forth to have been seised in Fee of the said Messuage at the Will of the Lord according to the Custom of the Mannor and sheweth no admission from the Lord whereas a Copyholder cannot plead his Estate without setting forth an Admission or Grant from the Lord 4 Co. 22. b. But the Court resolved in this Case there need not be shewn any Admittance for the Title did not come in question If one pleads a particular Estate for life or years generally the commencement of it is to be shewn but if a Lessee for years Let for a lesser Term reserving a Rent in an Action of Debt for the Rent he may set forth that at the time of the Lease he was possessed of the Land ê“ termino diversorum annorum adtunc adhuc ventur ' and being so possessed demised to the Defendant c. without shewing the beginning of his Term and how derived for 't is but an inducement to the Action And Judgment was given for the Avowant Clarke versus Tucket IN an Action of Trespass for entring of his House and taking of four Pewter Dishes of the Plaintiffs The Defendant pleaded the Letters Patents of Edward the 4th whereby the Company of Taylors in the City of Exeter were Incorporated and by the said Letters Patents they were to keep a Feast every year upon the Feast-day of St. John the Baptist in some place of the City belonging to them and there to make Orders and By-Laws c. And that the said Corporation at a Meeting held the 20th of March in the 21st year of the Reign of the late King Charles the Second did make an Ordinance or By-Law That if any person being Master or one of the Chief Wardens of the Corporation aforesaid at any of their Assemblies should reproach or revile the Master or any of his Brethren or any of the Common Council of the Corporation he should forfeit 6 s and 8 d And if any other person or persons of the said Bodies should revile or use any unhandsom Speech of the Master Wardens or any of the said Council he should forfeit 3 s and 4 d the said Fines to be levied by Distress upon a Warrant under the Corporation Seal and by sale of the Offenders Goods after Four days Notice given to the Fine so set forth and an Allowance of the By-Law by the Justices of Assize according to the Statute of Henry the 7th And further saith That the Plaintiff being a Member of the said Corporation and having Notice of the said By-Law did at an Assembly of the said Master and Wardens in the Common Hall say of the said Master and Wardens in the said Corporation these words viz. The Masters ipsos Magistrum Custod ' innuendo are all a Company of Pickpocket Rogues and divers other very scurrilous and reproachful Words were set forth to have been there spoken of the said Master and Wardens by the Plaintiff whereby the Plaintiff forfeited 3 s and 4 d by the said By-Law which was demanded of him and by him neglected to be paid by the space of six Days Whereupon the said Master made his Warrant directed to the Defendant commanding him to Levy the said 3 s and 4 d by distress and sale of the Goods of the Plaintiff And the Defendant by virtue of the said Warrant did enter into the Plaintiffs House being then open and took the Goods in the Declaration mentioned Nomine districtionis prout ei bene licuit And to this Plea the Plaintiff demurred and Judgment was given for the Plaintiff For a Corporation cannot make a By-Law to have a Forfeiture levied by the sale of Goods 8 Co. 127. nor for Forfeiture of Goods And here tho' the Defendant only Distrained neither is the Defendant charged with selling the Goods in the Declaration yet the By-Law being void as to the selling is void in toto and no Justification can be upon it It was also said at the Bar That the Distress was excessive to distrain so many Dishes for 3 s and 4 d Indeed a man cannot sever a Distress and therefore in some cases a Distress of great value as a Cart and Horses may be taken for a small matter because not severable but here he might have taken some of the Dishes But the Court did not regard that Exception because it did not appear of what value the Dishes were Again it was said That they ought to have made the By-Law upon St. John Baptists Day To
Ground tanquam ad Mesuag ' praed ' spectant ' pertinent ' de jure habere debet and that the Defendant stopped it up ad damnum c. The Defendant pleaded a frivolous Plea to which there was a Demurrer It was Objected on the Defendant's part that the Declaration was insufficient because the Plaintiff did not prescribe for the Way nor otherwise entitle himself to it than by a possession of the Messuage and that he had and ought to have a Way to the said Messuage belonging And a difference was taken between this and Dent and Oliver's Case 2 Cro. 43. where one alledged himself to be seised in Fee of a Mannor and had a Fair there and that the Defendant disturbed him to take Toll And in 2 Cro. Stackman and West there is a Prescription laid in the Dean and Chapter who had the Fee for the Way But it was Objected That a Corporation could not prescribe in a Que Estate but it was held well being but inducement to the Action And the Court here held the Declaration sufficient being but a possessory Action And a Case was said to be so Adjudged in this Court between the same parties Anno primo Jacobi secundi Vide the Case of Saint John and Moody upon the like Point Woodward al' versus Fox IN an Indebitat ' Assumpsit for 200 l for so much Money received by the Defendant for the use of the Plaintiffs The Defendant pleaded Non assumpsit and upon that a Special Verdict was found That in the Year 1681. before the Promise supposed c. John Hammond was and yet is Archdeacon of Huntington within the Diocess of Lincoln and that the Bishop of Lincoln is Patron of the Archdeaconry and that the Office of Register of the Court of Archdeaconry was time out of mind grantable by the Archdeacon for the Term of three Lives and that the said John Hammond in the said Year 1681. for 100 l sold and granted to Simon Michael and John Juce for their Lives the said Office of Register it being an Office concerning the administration of Justice and that by Colour thereof they enjoyed the Office till Juce died which was in 1687. and soon after in the same year the said Simon Michael died in the possession of the said Office and that Hammond was no ways Convicted of selling the said Office upon any prosecution at Law or otherwise And they further said That Thomas Bishop of Lincoln in the said Year 1687. after the Death of Juce and some time before the Death of Michael granted the said Office of Register to the Defendant Fox and set forth the Grant in haec verba which mentioned the said Registers Office to be void by the Statute of the 5 6 Ed. 6. against Sale of Offices and that thereupon it belonged to the said Bishop to grant the said Office by virtue of which the said Fox became seised of the said Office prout lex postulat And they find afterwards that in the same Year that Juce and Michael died Hammond being Archdeacon as aforesaid granted the said Office to the Plaintiffs Woodward Masters and Gilbert for their Lives and that they entred upon the said Office and became seised thereof ê“ut lex postulat And they find that the Bishops Grant was Afterwards Confirmed by the Dean and Chapter and they find that afterwards viz. the 22 of Octob. Anno regni Willielmi Mariae primo the said King and Queen their Letters Patents under the Great Seal reciting that the said Office appertained to Their Majesties to grant by the said Statute of Edward the 6th did grant the said Office of Register to the said Plaintiffs Woodward Masters and Gilbert for their Lives and that by virtue thereof they entred upon and exercised the said Office and received divers Fees and Profits thereunto belonging and that the Defendant having notice thereof did take divers Fees and Profits of the said Office amounting to 30 l claiming them to his own use c. and if upon the whole Matter c. Vpon this Special Verdict there were these Points moved The first Point was Whether this Office of Register could be granted for Lives This was not much insisted on by the Defendants Council it having been usually granted and so found by the Verdict 3 Cro. Young and Fowler 's Case a Grant in Reversion of the Registers Office was allowed being warranted by Usage and so in 3 Cro. Young and Stoel But unless there have been such Vsage 't is not grantable in Reversion Vide 3 Cro. Walker and Sir John Lamb. The second Point was Whether the Grant of this Office in Consideration of Money is void by the Statute of the 5th and 6th of Edward the 6th against Sale of Offices That Point was also waved it being Resolved in Dr. Trevor's Case 12 Co. 78. 2 Cro. 269. forasmuch as it concerned Administration of Justice The third Point was That the Statute of 5 Ed. 6. Enacting That the person who takes any Money for any Office shall lose and forfeit all his Right to any such Office c. Whether the King or the Bishop shall take advantage of this Forfeiture in regard the Statute doth not express who shall dispose of the Office in such case Co. Lit. 159. a. And it was said on the part of the Plaintiff That when a Statute gives a Forfeiture and not said to whom the King shall have it 11 Co. 60. a. unless there be a particular party grieved as upon the Statute of 2 Ed. 6. of Tythes and yet it was for some time before it was setled that the Parson should have the treble Value in that Case And this agrees with the Reason of the Common Law things that are nullius in bonis the King shall have them as extra Parochial Tythes 11 H. 4. 17. Vid. 5. Co. in Sir Henry Constable's Case The Soil of Navigable Rivers and derelict Lands was with this difference If the Sea leaves the Land gradatim and for but a little quantity the Owner of the Land shall have it but if in a great quantity at a time it goes to the King Davis Rep. 5. 6. Vid. Siderfin 86. Dyer 126. 'T is true at the Common Law where a person hath an Interest in that which is Forfeited he shall have the benefit of it as if a Park-keeper forfeit it shall go to the Owner of the Park And in Sir John Breon's Case Bridgm. 27. where the Earl of Lancaster gave License to make a Park in his Forest and the party forfeited his Office the Earl had the advantage of it In those cases the thing is forfeited to him from whom it was granted as a Copyholder forfeits to his Lord and Tenant for Life to him in Reversion but here the Bishop hath nothing to do with the Office of Register he cannot dispose of it in the time of Vacancy of the Archdeaconry The Verdict finds that his Office is to Register the Acts in the
part yet notwithstanding the Estate should continue in him The words of my Lord Coke 1 Inst 217. a are That it cannot stand with any Reason that a Freehold should remain in a man against his own Livery when there is a person able to take it There needs only a Capacity to take his Will to take is intended Why should it not seem as unreasonable that the Estate should remain in Simon Leach against his own Deed of Surrender For in case of a Surrender a Deed and sometimes Words without a Deed are as effectual as a Livery in case of a Feoffment Thirdly The third and principal Reason as I take it why the Law will not suffer the Operation of a Conveyance to be in suspence and to expect the Agreement of the party to whom 't was made is to prevent the Vncertainty of the Freehold This I take to be the great Reason why a Freehold cannot be granted in futuro because that it would be very hard and inconvenient that a man should be driven to bring his Praecipe or Real Action first against the Grantor and after he had proceeded in it a considerable time it should abate by the transferring the Freehold to a Stranger by reason of his Agrement to some Conveyance made before the Writ brought for otherwise there is nothing in the nature of the thing against Conveying a Freehold in futuro for a Rent de novo may be so granted because that being newly Created there can be no precedent Right to bring any Real Action for it Palmer 29 30. Now in this Case suppose a Praecipe had been brought against Simon Leach this should have proceeded and he could not have pleaded in Abatement till Sir Simon Leach ha assented and after a long progress in the Suit he might have pleaded that Sir Simon Leach assented puis darrein continuance and defeated all So that the same Inconvenience as to the bringing of Real Actions holds in Surrenders as in other Conveyances And to shew that it is not a slight matter but what the Law much considers and is very careful to have the Freehold fixed and will never suffer it to be in abeyance or under such uncertainty as a Stranger that demands Right should not know where to fix his Action A multitude of Cases might be cited but I will cite only a Case put 1 H. 6. 2. a. because it seems something of a singular nature Lord and Villain Mortgagor and Mortgagee may be both made Tenants But it will be said here that if a Praecipe had been brought against Sir Simon Leach might not he have pleaded his Disagreement and so abated the Writ of Nontenure 'T is true but that Inconvenience had been no more than in all other Cases a Plea of Nontenure and it must have abated immediately for he could not have abated it by any dissent after he had answered to the Writ Whereas I have shewn it in the other Case it may be after a long progress in the Suit Again It 's very improbable that he should dissent whereas on the other side an Assent is the likeliest thing in the world so the mischief to the Demandant is not near so great nor the hundredth part so probable Now I come to consider those Inconveniences that have been urged that would ensue if a Surrender should work immediately It has been said That a Tenant for Life might make such Deed of Surrender and continue in possession and suffer a Recovery and this might destroy a great many Recoveries and overthrow Marriage Settlements and defeat Charges and Securities upon his Estate after such Deed of Surrender These and a great many more such like Mischiefs may be instanced in Surrenders but they hold no less in any other Conveyance whereby a man may as has been shewed before divest himself of the Estate and yet continue the Possession and in this Case the Assent of the Surrendree tho' he doth not enter would as it is agreed of all hands vest the Estate in him Hutton 95. Br. tit Surrender 50. tho' he cannot have Trespass before Entry and that Assent might be kept as private and let in all the Mischiefs before mentioned as if no such Assent were necessary And this I think sufficient to Answer to the Inconveniences objected on that side Now let us see what Inconveniences and odd Consequences would follow in case a Surrender could not operate till the express Assent of the Surrendree then no Surrender could be to an Infant at least when under the age of Discretion for if it be a necessary Circumstance it cannot be dispensed with no more than Livery or Attornment So tho' an Infant of a year Old is capable to take an Estate because for his benefit he could not take a particular Estate upon which he had a Reversion immediately expectant because it must enure by Surrender If there be Joyntenants in Reversion a Surrender to one of them enures to both 1 Inst 192 214. a. so there as to one Moiety it operates without Assent or Notice Suppose Tenant for Life should make Livery upon a Grant of his Estate to him in Reversion and two others and the Livery is made to the other two in the absence and without the Notice of him in Reversion should the Livery not work immediately for a Third part of the Estate And if it doth it must enure as a Surrender for a Third part So is Bro. tit Surrender and 3 Co. 76. If Tenant for Life should by Lease and Release convey the Lands held by him for Life together with other Lands to him in Reversion who knows nothing of the Sealing of the Deed should this pass the other Lands presently and the Lands held for Life not till after an express Assent because as to those Lands it must work as a Surrender Plainly an express Assent is not necessary For if the Grantee enters this is sufficient I come in the last place to Answer those Arguments that have been made from the manner of putting the Case of Surrenders in the Book and the Form of pleading Surrenders Co. 1 Inst 337. b. First A Surrender is a yielding up of the Estate which drowns by mutual Agreement between them Tenant for Life by Agreement of him in Reversion surrenders to him he hath a Freehold before he enters And so Perkins in putting the Case of a Surrender mentions an Agreement and divers other Books have been cited to the same purpose To all which I Answer No doubt but an Agreement is necessary But the Question is Whether an Agreement is not intended where a Deed of Surrender is made in the absence of him in the Reversion whether the Law shall not suppose an Assent till a Disagreement appears Indeed if he were present ' he must agree or disagree immediately and so 't is in all other Conveyances The Cases put in Perkins Sect. 607 608 609. are all of Surrenders made to the Lessor in person for thus he puts
them The Lessee comes to the Lessor and the Lessee saith to the Lessor I surrender saith he if the Lessor doth not agree 't is void Car il ne poit surrender à luy maugre son dents And that is certainly so in Surrenders and all other Conveyances for a man cannot have an Estate put into him in spight of his Teeth But I cannot find any of the Books cited that come to this Point That where a Deed of Surrender is executed without the Notice of him in Reversion that it shall pass nothing till he Consents so that it cannot be said that there is any express Authority in the Case Now as to the Form of Pleading of a Surrender it has been Objected That a Surrender is always pleaded with Acceptance and many Cases have been cited of such Pleadings Rastal's Entries 176 177. Fitzh tit Barre 262. which are Cases in Actions of Debt for Rent and the Defendant in Bar pleads That he surrendred before the Rent grew due and shews that the Plaintiff accepted the Surrender So in Waste brought a Surrender pleaded with the Agreement of the Plaintiff These and the like Cases have been very materially and I think fully Answered at the Bar by my Brother Pemberton That those Actions being in Disaffirmance of the Surrender and implying a Disagreement the Defendant had no way to bar or avoid such Disagreement but by shewing an express Agreement before The Case of Peto and Pemberton in the 3 Cro. 101. that has been so often cited is of the same sort In a Replevin the Avowry was for a Rent-charge in Bar of which 't is pleaded That the Plaintiff demised the Land out of which the Rent issued to the Avowant The Avowant Replies That he surrendred dimissionem praedict to which the Plaintiff agreed This is the same with Pleading in Bar to an Action of Debt for Rent But when the Action is in pursuance of the Surrender then it is not pleaded So is Rast Entries 136. The Lessee brought an Action Covenant against the Lessor for entring upon him and ousting of him The Defendant pleads a Surrender in Bar and that without any Agreement or Acceptance In Fitzherbert tit Debt 149. where the Case is in an Action of Debt for Rent The Defendant pleaded in Bar that he surrendred by force of which the Plaintiff became seised There is no mention of pleading any Agreement notwithstanding that the Action was in Disaffirmance of the Surrender Therefore as to the Argument which has been drawn against the Form of Pleading I say that if an Agreement be necessary to be pleaded Then I say First That 't is answer'd by an implied Assent as well as an express Assent I would put the Case Suppose a Lessee for Life should make a Lease for years reserving Rent and in Debt for the Rent the Lessee should plead That the Plaintiff before the Rent grew due surrendred to him in Reversion and he accepted it and Issue is upon the Acceptance and at the Trial it is proved that the Plaintiff had executed a Deed of Surrender as in this Case to him in Reversion in his absence would not this turn the Proof upon the Plaintiff that he in Reversion disagreed to this Surrender for surely his Agreement is prima facie presumed and then the Rule is stabit praesumptio donec probertur in contrarium Again I say it appears by the Cases cited that it is not always pleaded and when pleaded 't is upon a special Reason as I have shewn before i. e. to conclude the party from disagreeing and it would be very hard to prove in Reason that an Agreement admitting an express Assent to be necessary must be pleaded for if it were a necessary Circumstance to the Conveyance why then 't is imply'd in pleading sursum reddidit for it cannot be a Surrender without it In pleading of a Feoffment it is enough to say Feoffavit for that implies Livery for it cannot be a Feoffment without it Now why should not sursum reddidit imply all necessary requisites as well as Feoffavit and therefore I do not see that any great Argument can be drawn from the Pleading For 1. It is not always to be pleaded 2. It cannot be made out to be necessary so to plead it for if Assent be a necessary requisite then 't is implied by saying sursum reddidit as Livery is in Feoffavit and then to add the words of Express Consent is as superflous as to shew Livery after saying Feoffavit And again If it were always necessary it is sufficiently answered by an Assent intended in Law for Presumptions of Law stand as strong till the contrary appears as an express Declaration of the party Memorand Anno quarto Willielmi Mariae this Case was brought by Writ of Error into the House of Lords and the Judgment was there Reversed upon the Reasons in the aforegoing Argument Termino Sancti Michaelis Anno 2 W. M. In Communi Banco Coghill versus Freelove IN an Action of Debt for Rent the Plaintiff Declared for 78 l upon three several Demises against the Defendant as Administratrix to Thomas Freelove her late Husband in the Detinet The Defendant pleaded that after the Letters of Administration granted to her and before the Rent became due she assigned to Samuel Freelove the Indenture of Demise and all her Estate and Interest in the Premisses and that Samuel entred and was possessed and that the Plaintiff had notice of the Assignment before the Action brought To this the Plaintiff Demurrs It was said for the Plaintiff that the Action being brought in the Detinet the Assignment was no Plea for the Administratrix is charged upon the Contract of the Intestate and liable so far as there is Assets tho' there be no Assignment And tho' in the 3 Co. and in the 1 Cro. 555. Overton and Syddal's Case seems the contrary and so Marrow and Turpin's Case in the 1 Cro. 715. And that the privity of Contract is determined by the Death of the Lesser yet in Ironmonger and Newsam's Case in Latch 260. the contrary was Resolved Note it did not appear by Latch to be Resolved but the Chief Justice said it was so Resolved So in 17 Car. 2. Syderfin 266. in Heylar and Casbord's Case it was Resolved that the Action lay against the Executor upon the Contract after an Assignment where it was held also that an Executor cannot wave a Term unless he renounceth the whole Executorship After hearing Arguments at the Bar the Court gave Judgment for the Plaintiff Powell absente As to Overton and Syddal's Case it appears by Mo. 352. that Popham and Fenner were against Gawdy and Clench vide Poph. Rep. 121. It appears that the Action was brought in the Debet and Detinet and by a Prebend upon the Lease of his Predecessor and then an Assignment will be a Bar which matters indeed do not appear to be urged in the Case as Cited by my Lord Coke and Reported
c. To this the Plaintiff Demurred First This is a Grant by Richard to Nicholas and so void without Attornment or Enrollment and being intended to Enure as a Grant shall not work as a Covenant to stand seised Secondly The Defendant hath pleaded it as a Grant and what he saith after in the Avowry to set forth how the Deed should work is vain and idle As to the first Point the Court held this Deed having no Execution to make it work as a Grant it shall operate as a Covenant to stand seised Mod. Rep. 178. Sanders and Savins Case A Grant of a Rent to his Kinsman for Life there being no atturnment it raised an use by way of Covenant but the pleading the Court held impertinent for instead of pleading of this Grant according to the effect of it in Law viz As a Covenant to stand seised He sets forth the matter in Law and haw it ought to be construed and because they would not countenance such vain and improper pleading the Case was adjourned Biddulph versus Dashwood IN an Action of Debt for 90 l The Plaintiff declared quod cum recuperasset coram Justiciariis de Banco apud Westm ' 90 l ê“ dam ' against the Defendant prout ê‘ Record process ' quae Dom ' Rex Regina coram eis causa Erroris in eisd ' corrigend ' Venire fac ' quae in Cur ' dicti Domini Regis Dom ' Reginae in pleno robore vigore remanent minime revocat ' plen ' apparet per quod actio accrevit c. To this the Defendant Demurred supposing that the Iudgment was suspended so far that an Action of Debt could not be brought upon it pending the Writ of Error But the Court held if the Defendant could insist upon this he ought not to have Demurred but to have pleaded Specially and demanded Iudgment if the Plaintiff should be answered pending the Writ of Error So Iudgment was given for the Plaintiff Termino Sancti Hillarij Anno 2 3 W. M. In Communi Banco Anonymus TRespass quare clausum fregit diversas petias Maheremij cepit c. Iudgment by default upon the Writ of Enquiry returned The Iudgment was stayed for the incertainty of the Declaration James Tregonwell Vid. Executrix of John Tregonwell against Sherwin IN an Action of Debt for Rent the Plaintiff declared in this manner That Frances Fen and John Tregonwell the 23 of Jan. 24. Car. 2. did Demise to the Defendant certain Lands for 21 years reserving 20 l per Annum to the said Frances during her Life and after her Decease to the said Tregonwell his Executors and Administrators and set forth Frances to be Dead and that the said Tregonwell being possessed of the Reversion of the Premisses pro Termino Annor ' adtunc adhuc ventur ' the 4 of May 30 Car. 2. made his Will and thereof made the Plaintiff his Executrix and died and that she took the Executrixship upon her and by vertue thereof became possessed of the said Reversion and for 30 l for a year and halfs Rent accruing after she brought the Action The Defendant pleaded an insufficient Plea and the Plaintiff Demurred And Iudgment was given against the Plaintiff upon the insufficiency of the Declaration for there is no good Title set forth to the Plaintiff for the Rent for t is not said that Tregonwell was at the time of the Lease possessed of the Lands pro Termino Annorum c. but that at the time of making his Will and that might be upon the creating of such Estate since and the Rent might not belong to the Reversion And tho' it was said his reserving the Rent to his Executors carried an intendment that he had a Term for years only yet that was held not to be sufficient and Iudgment was given for the Defendant Sir Lionel Walden versus Mitchell Hunt ' ss JOHANNES MITCHELL nuper de Huntington in Com' praed ' Maulster Attach ' fuit ad respondend ' Action for Words viz. Papist and Pensioner spoken of one who had been a Member of Parliament â—n the time of King Charles the Second Lionello Walden Mil ' de placito Transgr ' super Casum Et unde idem Lionellus per Robertum Clarke Attorn ' suum queritur quare cum praed ' Lionellus bonus verus pius fidelis honestus subditus ligeus domini Regis dominae Reginae nunc existit ac ut bonus verus pius fidelis honestus subditus ligeus eorundem domini Regis dominae Reginae nunc ê“genitorum suorum à tempore Nativitat ' suae hucusque se habuit gessit gubernavit bonorumque nominis famae conversaconis gesture tam in t ' quamplurimos venerabiles fideles subdit ' dictorum domini Regis dominae Reginae nunc ê“genitorum suorum quam omnes vicinos suos per tot ' tempus praed ' habit ' not ' reputat ' fuerat per tot ' tempus praed ' The Plaintiff a Protestant fuit adhuc existit verus professor Religionis Protestan ' Reformat ' per leges hujus regni Angliae stabilit ' ill ' sincere proficiend ' exercen ' Divina Servitia in Ecclesia in paroch ' sua seu aliqua Ecclesia capello aut alio usuali loco Communis precacon ' secundum usum Ecclesaie Anglicanae lect ' semper frequentans audiens Ecclesiae Romanae nunquam reconciliat ' And never a Professor of the Romish Religion fuit neque Religionem Romanam unquam profeffus fuit neque ad Missam unquam ivit Cumque praed ' Lionellus fuit extit un ' Burgens ' That he hath been a Member of Parliament sive Membr ' Parliamenti pro Villa de Huntingdon ' in Com' Hunt ' in Parliamento domini Caroli secundi nuper Regis Angi ' inchoat ' tent ' apud Westm ' in Com' Midd ' octavo die Maijanno regni sui decimo tertio ut hujusmodi Burgens ' sive Membr ' Parliamenti per tot ' idem Parliament ' usque dissolucon ' inde juste fidelit ' And did his Duty therein justly deservivit debitum fiduciae officij sui Burgens ' Membr ' ejusdem Parliamenti per tot ' idem tempus performavit Idemque Lionellus pro performacone fiduciae officij sui praedict ' Burgens ' sive Membr ' Parliamenti praedict ' alijs Causis diversa itenera ad Civitat ' London ' Westm ' à Villa Hunt ' praedict ' fecit performavit praed ' tamen Johan ' praemissorum non ignarus set machinans malitiose intendens eundem Lionellum non solum in bonis nomine fama credenc ' reputacone ' suis praedict ' multiplicit ' laedere detrahere penitus distruere verum etiam ipsum Lionellum infra poenas poenalitat ' contra Papistas subdit '
that King James came to the Crown and the time is supposed to have influenced the Opinion of the Court and the Plaintiff had Iudgment After having heard the Case several times spoken to the Court gave Iudgment for the Plaintiff principally for the words that he went to Mass for by the Statute of 23 Eliz. cap. 4. the Offender is to Forfeit 100 l and he imprisoned for a year so that they expose him to Corporal Punishment It is held that to say a Man committed petit Larceny is Actionable Allens Rep. 11. The Chief Justice here said That where a Man had been in an Office of Trust to say that he behaved himself corruptly in it as it imported great Scandal so it might prevent his coming in to that or the like Office again and therefore was Actionable Note The time these words were spoken was taken notice of viz. between King James the Second's Desertion of the Kingdom and the Proclaiming of the King and Queen when to call a Man Papist would have exposed to him the danger of the Rabble whereupon Judicium pro Quer. Lade versus Parker VIde ante Termino Michal ' ult It was this Term moved again That the pleading dedit concess ' Nicholao Marsh filio suo Annuitatem praed ' habend ' praed ' Nicholao heredibus assignat ' suis ad opus usum dicti Nicholai haered ' assign ' suor ' per quod vigore Statuti de usibus in possession ' transferen ' the said Nicholas became seised c. was sufficient and the words quae quidem concessio c. quod vide ante were to be rejected as Surplusage And of that Opinion were Powell Rokeby and Ventris But Pollexfen Chief Justice held strongly to the contrary and he agreed this Deed being to the Son with an express Consideration of natural affection tho' Money was also part of the Consideration mentioned that it would work as a Covenant to stand seised But then the Parties ought to have pleaded it as a Covenant to stand seised according to the legal construction of such a Deed where there is no Execution at Law whereas here they have pleaded it as a Grant at the Common-Law The other Judges differing in their Opinion said it was sufficient to plead the Deed as it was worded and if there were sufficient matter to intitle the Avowant Iudgment ought to be given accordingly and then the Avowant concludes that he became seised by the Statute of Vses which shews he intended to take the operation of the Deed that way so Iudgment was given for the Avowant Chief Justice contra Note Serjeant Levins cited the Pleading in Foxes Case 8 Co. where the words Demise and Grant in consideration of Money amounted to a Bargain and Sale it being of an Estate for years without enrolment it was pleaded dimisit concessit ad firmam tradidit non Barganizavit Woodward c. versus Fox IN an Action sur Assumpsit for 200 l received to his use Vpon non Assumpsit a Special Verdict was found quod vide ante Term ' Trin ' ult ' and the Case this Term came to have the resolution of the Court The case upon the Special Verdict is to this effect an Arch-deacon maketh a Register of the Court belonging to his Arch-deaconry in Consideration of 100 l The Bishop of the Diocess who was also Patron to the Archdeacon supposing the Office to have been void by the Statute of 5 and 6 Edw. 6. against the Sale of Offices relating to the Administration of Iustice granted the said Office of Register to the Defendant and the said Grant was confirmed by the Dean and Chapter The Archdeacon after the Death of that person to whom he had sold the Office ut supra Grants the said Office to the three Plaintiffs for their Lives and the Life of the longer liver of them the Plaintiffs before any Office found for the King or any Record shewing the Sale of this Office obtains a Grant of it from the now King and Queen The Court were all of Opinion for the Plaintiffs The Court did not speak to two Points stirred in the case viz Whether this Office could be granted for three Lives or whether it was within the said Statute of 5 and 6 Edw. 6. because they were in a manner agreed at the Bar and the Points setled But the two main Points in the Case which were spoken to are First Where an Archdeacon sells the Office of Register in the Court of the Archdeaconry whether by the Statute of 5 and 6 Edw. 6. the Grant and Nomination to this Office shall come to he Crown or whether it shall go to the Bishop of the Diocess Secondly Admitting the Right to be in the Crown whether the King and Queen can make a Register till Office found or that the Title appeareth by some matter of Record 1. It was resolved that the Right of appointing the Register it being Forfeited by the said Statute of 5 and 6 Edw. 6. did come to the King and Queen It is a Rule laid down by Manwood Chief B. Mo. 238. That where a Statute giveth a Forfeiture either for Nonfesans or Mis-fesans the King shall have it so in 11 Co. 68. This follows the Reason of the Common-Law in case of things which are nullius in bonis where no visible Right appears the Law giveth them to the King Siderfin 148 86. As Derelict Land Treasure Trove and a great number of such like instances may be cited from the Books so it is in Extraparochial Tithes tho' things of an Ecclesiastical nature 2 Inst 646. Cawdry's Case 5 Co. 18. Nay if the Right lie equal between the King and Subject the Kings Title hath the preference by Law Detur digniori is a Rule 9 Co. 24. In case of concurrence of Titles between the King and Subject It was objected That this held in valuable things and matters of profit to the Crown But the Court said there was no such distinction made in the Books and many Prerogatives c. were given to the King for the publick good and interest of the Government as well as for encrease of the King's Treasure There is no exception out of this construction of Forfeitures upon Penal Statutes unless they are in recompence for the Damage suffered by a Subject as the Statute of 2 Ed. 6. that giveth the Forfeiture of the treble value for not setting out of Tithes 2 Inst 650. And this follows the Reason of the Common Law that Fines and Penalties for Offences at Law go to the King as the Head of the Government and that was the second Reason the Court went upon that the Offence for which this Forfeiture is inflicted is principally against the King By the preamble of the Statute it appears to be made for avoiding of corruption in Offices and abuses in the Administration of Justice Now the King is the Fountain of Justice and that Ecclesiastical as well as Civil in
may be sold Noell versus Robinson THe Plaintiffs Father being seised in Fee of a Foreign Plantation devised it to the Plaintiff and made the Defendant Executor The Executor let it for years reserving Rent in Trust for the Plaintiff who now Exhibited his Bill to have his Rent The Defendant Confessed the Devise of the Testator and the Lease made by himself but said That great Losses had fallen upon the Testator's Estate and that he paid and secured which is payment in Law for the Debts of the Testator to â— great value and that he hoped he should be permitted to reimburse himself by the receipt of this Rent notwithstanding the mentioning of the Trust as aforesaid The Cause came to Hearing and the Court Decreed for the Plaintiff For altho' a Legatee shall refund against Creditors if there be not Assets and against Legatees all which are to have these proportion where the Assets fall short yet the Executor himself after his Assent shall never bring the Legacy back But if he had been sued and paid it by the Decree of this Court the Legatee must have refunded as if a Debtor to a Bankrupt pays him voluntarily he must pay him over again Otherwise of payment by Compulsion of Law Note My Lord Chancellor said That if they give Sentence for a Legacy in the Ecclesiastical Court a Prohibition lies unless they take Security to Refund Note also in this Case that tho' it be an Inheritance yet being in a Foreign Country 't is looked upon as a Chattel to pay Debts and a Testamentary thing It was Objected That this could not be taken for an Assent for if so how could the Executor let it But the Court said that it did tantamount to an Assent and being a lawful Act a little matter will be taken for an Assent Anonymus A Bill was Exhibited by the Assignees of Commissioners of Bankrupts to have an Account against the Defendant of the Bankrupts Estate The Defendant pleaded that he was but Servant to the Bankrupt and had given an account of all to his Master and likewise had been Examined before the Commissioners upon the whole Matter Vpon Hearing his Plea my Lord Chancellor Over-ruled it and Ordered that he should Answer Anonymus IF a man makes a Lease or devise an Estate for Years he being seised of an Estate of an Inheritance for payment of Debts if the Profits of the Lands surmount the Debt all that remains shall go to the Heir tho' not so exprest and albeit it be in the case of an Executor Barney versus Tyson THe Case was thus The Plaintiff in the Life of his Father being about 26 years of Age and having occasion for Money prevails with the Defendant to let him have in Wares to the value of 400 l and gives him Bond for 800 l to be paid if he survived his Father at which time an Estate would befall him of 5000 l per Annum and he having survived his Father he preferred his Bill against the Defendant to compel him to take his Principal Money and Interest And it was proved in the Case that the Defendant was Informed at the time of this bargain that the Father was ill and not like to live and he did live but a year and half after and that one Stisted a man very Infamous was employed in the transaction of this Bargain And the Plaintiff obtained a Decree in the time of the Lord Chancellor Fynch And now upon a Petition to the Lord Keeper North the Defendant obtained a Re-hearing And in maintenance of the Decree it was alledged that the hazard which was run was very little and such Bargains with Heirs were much to be discountenanced The Lord Keeper affirmed the Decree but said that he would not have it used as a President for this Court to set aside mens Bargains But this Case having received a Determination and the Defendant having accepted his Principal Money and Interest thereupon and there being only a slight Omission in the Enrolment of the Decree which if it had been done had prevented a Re-hearing and the Defendant having delayed his Application to him by Petition he would not now set the Decree aside Termino Paschae Anno 35 Car. II. In Cancellaria Hodges versus Waddington THe Case was thus An Executor wasted the Testator's Estate and made his Will wherein he devised divers of his own Goods and made his Son Executor Afterwards a Suit was commenced against the Son to bring him to an Account for the Estate of the first Testator which was wasted and pending that Suit the Son after the Bill brought against him by the Legatee of his own Goods delivered them to the Legatee and assented to the Legacy After which upon the Account against the Son it appeared that the first Executor had wasted the Goods of the first Testator to such a value And then the party at whose Suit the said Account was and who was to have the benefit thereof together with the Son and Executor of the first Executor preferred a Bill against the Legatee of the Goods to make him Refund and obtained no Relief especially for that he had made the Executor Plaintiff who should not be admitted to undo his own Assent But liberty being given to bring a New Bill against the Legatee and the said Executor the Cause came to Hearing and it was Decreed That the Legatee should Refund So that one Legatee that is paid shall not only Refund against another but a Legatee shall Refund against a Creditor of the Testator that can charge an Executor only in Equity viz. Upon a wasting by the first Executor But if an Executor pays a Debt upon a Simple Contract there shall be no Refunding to a Creditor of an higher Nature Note also The Principal Case went upon the Insolvency of the Executor Anonymus A Bill was brought setting forth a Deed of Settlement of Lands in Trust and to compel the Defendant who was a Trustee therein nominated to Execute an Estate The Defendant by Answer says That he believed that there was such a Deed as in the said Bill is set forth c. And upon the Hearing they would have read a Deed for the Plaintiff tho' not proved but upon a Commission taken out only against another Defendant to the Bill supposing it to be Confessed by the Answer But the Court would not permit the Reading of it for the Confessing goes no further than what is set forth in the Bill and will not warrant the Reading of a Deed produced altho' it hath such Clauses in it Anonymus A Bill was preferred against one to discover his Title that A.B. might be let in to have Execution of a Judgment The Defendant pleaded That he was a purchaser for a valuable Consideration but did not set forth That he had no Notice of the Judgment And it was Over-ruled for 't is a fatal Fault in the Plea Bird versus Blosse THe Case was thus One wrote a Letter signifying
his Assent to the Marriage of his Daughter with J.S. and that he would give her 1500 l And afterwards by another Letter upon a further Treaty concerning the Marriage he went back from the Proposals of his Letter And at some time after declared That he would agrèe to what was propounded in his first Letter This Letter was held a sufficient Promise in Writing within the Statute of 29 Car. 2. called the Statute against Frauds and Perjuries and that the last Declaration had set the Terms in the first Letter up again Anonymus WHere a man buys Land in anothers name and pays Mony it will be in Trust for him that pays the Mony tho' no Deed declaring the Trust for the Statute of 29 Car. 2. called the Statute of Frauds doth not extend to Trusts raised by Operation of the Law Anonymus AN Administrator de bonis non of the Conusee of a Statute had agreed with the Conusor to assign it in Consideration of a Sum of Mony which upon the said Agreement the Conusors had Covenanted to pay to him his Executors or Administrators and then the Administrator died The Court Decreed the Mony to be paid to the Executor of the Administrator and not to the New Administrator de bonis non altho' before the Extent it could not be assigned at Law Sed nota That there were not Debts of the first Intestate appearing Termino Sancti Hillarij Anno 35 36 Car. II. In Cancellaria NOte Suits in Chancery admitted for Distribution of Intestates Estates upon the Act of 22 Car. 2. Sir Thomas Draper Mil ' versus Dr. Crowther THe Bill sets forth a Contract under Seal with the Defendant for making of a Lease of certain Lands in Middlesex and to have an Execution of the Agreement The Defendant pleaded That he has Head of a Colledge in Oxford and sets forth the Charters of 14 R. 2. and 14 H. 8. Impowering the University to enquire and proceed in all Pleas and Quarrels in Law and Equity except concerning Freehold where a Scholar their Servants and Ministers sunt una partium c. ita quod Justiciarij de Banco Regis sive de Communi Banco vel Justiciarij ad Assisas non se intromittant c. And the Confirmation by an Act of Parliament of the 13th of Elizabeth and Concluded his Plea to the Iurisdiction of the Court. And it came to be Argued before the Lord Keeper Guildford 22 Febr. 1683. and the Plea was Over-ruled because the Charter ought properly to be extended to Matters at Common Law only or to Proceedings in Equity that might arise in such Cases and not to meer Matters of Equity which are Originally such as to Execute Agreements in specie Again Conuzance of Pleas is never to be allowed unless the Inferior Jurisdiction can give Remedy Here they can only Excommunicate or Imprison but cannot proceed to Sequestration of Lands in Middlesex If the Matter lay only in Damages it might be allowed to them because the Jurisdiction is given over all England but this is not to be intended where the Suit is for the thing it self and when 't is out of their reach A President was cited in the year 1663. before my Lord Clarendon Chancellor assisted with Hale then Chief Baron and Justice Wyndam where the Plea was Over-ruled Vide in the 3 Cro. 63. Wilcocks and Bradell's Case and Hallie's Case 87. Sir Robert Reeve's Case SIr George Reeve upon his Marriage with his Second Wife setled a Ioynture of divers of his Lands in Suffolk which he had before charged with his Daughters Portion viz. 3000 l which Daughter he had by a former Wife and by his last Will he mentioned that the said Joynture Lands were so incumbred and therefore he Devised certain Lands he had in Bickerton in Yorkshire to his Wife in lieu of such part of the Suffolk Lands as were charged with the Portion in case she would accept thereof But after his Decease it appeared that the Lands in Bickerton were not equivalent in Value to the Suffolk Lands and therefore she held to the latter and was not prejudiced by the Charge of the Portion because it appeared to be a Voluntary Settlement Nota In this Case the Lord Keeper Decreed that the Portion should be charged upon the Bickerton Lands for so much as it was defeated by the Settlement in Ioynture of the Suffolk Lands Anonymus ONe Devised his Lands to J.S. in Fee in Trust for Katharine and the Heirs of her Body and if Katharine died without Issue to Jane for life And in another Clause in the Will he devised That if Katharine died without Issue and Jane be then deceased then and not otherwise he gave the Land to J. N. and his Heirs Katharine died without Issue and Jane survived her and died A Bill was brought by J. N. against J. S. and the Heir at Law of the Testator to have this Trust executed My Lord Keeper Decreed it for J. N. altho' Jane survived Katharine because the words if Jane be then deceased seemed to be put in to express his meaning that Jane should be sure to have it for her life and that J. N. should not have it till she were dead and also to shew when J.N. should have it in possession Termino Paschae Anno 36 Car. II. In Cancellaria Wiliam Ragget and his Wife versus William Clarke THe Case was thus Nicholas Wheeler was seised of a parcel of Land for his own life and the lives of two others and prevailed with the Defendant to be bound with him for a Sum of Mony And that the Defendant might raise Mony for the discharge of the said Debt he permitted the Defendant to enter into the said Lands and to take the Profits for two years the said Lands being about 12 l yearly value and the said Land being so in the possession of the Defendant the said Wheeler died and made Isabel Wife of the now Plaintiff his Executrix And this Bill was brought by the said Husband and Wife to have an account of the Profits and that the possession of the Land should be delivered up to them The Defendant by Plea sets forth his Title as Occupant and it was allowed And the Bill was dismissed Bonham versus Newcomb ONe being seised in Fee in Consideration of 1000 l paid to him by a Person that married his Kinswoman Conveys to him and his Heirs and takes a Re-demise for 99 years if he should live so long And a Covenant therein That if he should pay 1000 l with the Interest that should be due for the same at any time during his life that the Grantee should Re-convey to him and his Heirs and that if he did not pay the Mony then that his Heirs c. should have no power to Redeem He died the Mony not being paid and his Heir preferred a Bill to Redeem it And it was urged for him That in a Conveyance which was a Security for Mony whatever
the use of my only Son William Whitmore and his Heirs lawfully desscended from his Body and for the use of the Issue Male and Issue Female discended from the Body of my Sister Elizabeth Weld deceased Margaret Kemes and Anne Robinson in case that my only Son William Whitmore should decease in his Minority without Issue lawfully descended from his Body I nominate and appoint my only Son William Whitmore Executor of my last Will and Testament I nominate and appoint the Right Honourable William Earl of Craven during the Minority of my only Son William Whitmore Executor of my last Will and Testament I commit the Education and Tuition of my only Son William Whitmore unto the Care of the Right Honourable the Earl of Craven On the 5th of August 1678 the Testator died his Son being then about the Age of 13 years The Earl of Craven proved the Will William Whitmore the Son made his Will in Writing and thereby Devised to Frances his Wife all his Estate real and personal and makes her sole Executrix and about the 2d of August died without Issue being above the Age of 18 years and under the Age of 21 years not having proved his Father's Will The Will of William Whitmore the elder is duly proved by Frances The Question was Whether Frances Whitmore the Executrix of William Whitmore the Son be well Entituled to the surplusage of the Personal Estate of William Whitmore the Father or the Discendants of the Sisters Vpon hearing of this Cause a Case was made ut ante and referred by the late Lord Keeper North to the Judges of the Common Pleas who were divided in Opinion but made no Certificate thereof the Reference being determined by his Death And afterwards by Order it came to be heard before the Lord Chancellor Jefferies who upon Hearing of the Counsel of both sides Decreed it for Frances Whitmore the Complainant for that the Executorship of my Lord Craven determined at the Age of 17 years of William Whitmore the Son and then the Surplusage became an Interest vested in him and could not be devised over And his Lordship seemed to be of Opinion That Minority in the Clause wherein the Devise over was should be understood to determine at the same time as in the Clause of Executorship A TABLE OF THE Principal Points Argued and Resolved in the SECOND PART OF THESE REPORTS A Acceptance See Surrender Action TORTS in their Nature are several so one Defendant of many may be found Guilty and the other Not guilty but 't is not so in Actions grounded upon Contracts p. 151 Action upon the Case See Assumpsit Outlawry Action lies against the Mayor of London for not granting a Poll upon a double Election 25 The Law gives an Action for but a possibility of Damage as for calling an Heir apparent Bastard c. 26 27 Where an Officer does any thing against or refuses to do the Duty of his place whereby Damage accrues to the party Action lies 26 But it lies not against a Lord of a Mannor for refusing to admit a Copyholder 27 Against a Common Carryer for losing Goods delivered and Carriage paid for 78 Against Bayliffs for levying Money by pretence of a Fieri facias 93 For not Folding his Sheep upon the Plaintiffs Land whereby the Plaintiff lost the benefit of Foldage 138 For the Profit of an Office not necessary to shew every particular Sum received by the Defendant But it is a good Evidence for Damage to shew the Profit of the Office Communibus Annis 171 In an Action for not Grinding at his Mill what shall be a sufficient Setting forth of the Custom 292 Action upon the Case for Slander Writ in a Letter of a Lawyer He will give Vexations and ill Counsel and stir up a Suit and milk your Purse and fill his own large Pockets Actionable 28 Anciently no Action for Words unless the Slander concerned Life ibid. Of one who had been a Member of Parliament Your Master is a Papist when he is at home he goes to Church but when he is at London he goos to Mass Sir J.C. and he were both Pensioners at the time of the Long Parliament Actionable 265 To say of a Man that had been in an Office that he had behaved himself corruptly in it Actionable 266 Administration In an Action against an Administrator it is necessary to set forth that Administration was committed to him tho' not to say by whom 84 Administrator shall be charged for Rent after the Assignment of the Testator's Term 209 Admiralty Marriners as well Officers as Common Seamen may sue for Wages in the Court of Admiralty and some only may sue there as well as when all joyn 181 If the Suit be there against some of the Part-owners the Course is not to charge them with the whole but according to their proportionable parts ibid. Advowson Presentation by Turns among Parceners whether an Usurpation in a Turn puts all out of Possession or only one 39 Age. See Devise Executor Amendment See Distress Scire facias Writs Habere facias instead of Liberari facias and inquirat instead of inquirant amendable upon Motion because in a Judicial Writ 171 Arbitrament Award See Vmpire No place mention'd where the Award was made naught 72 Whether Arbitrators having Power to name an Umpire may name a second if the first refuses 114 Submissions to Awards favourably construed because they tend to the end of Controversies 115 Where an Award that seems all on one side may be good 222 Award may be by Word of Mouth and he which sets forth such Parol Award is not tyed to strictness of Words but 't is sufficient to shew the effect and substance of what was Awarded 242 Award to pay the Charges of a Suit good tho' the Sum is uncertain for it may be easily reduced to certainty 243 Where Money is awarded to be paid to J. S. and no mention made of his Executors yet in case that he dies before the Money shall be paid to his Executors for an Award creates a Duty and the Executor shall release where the Testator was awarded so to do 249 Assent See Executor Assent of a Purchaser vest the Estate in him tho' he cannot have an Action of Trespass before Entry 205 Assigns Where a man covenants for himself and his Assigns to permit if a Breach be laid in the Assigns this Covenant shall relate only to the Assigns after the Deed was made and not before 278 Assumpsit J. S. being indebted to the Plaintiff and the Defendant to J. S. the Defendant promises that if he would procure an Order from J. S. he would pay him Action good after the Order procured 71 74 If Four be sued in an Assumpsit and they plead Non assumpsit infra sex annos and the Jury find that one did assume infra sex annos but not the rest the Plaintiff cannot have Judgment 151 Indebitatus Assumpsit brought for Money won at a Play called
a Hoyman Common Carrier or Inholder 'T is objected That the Master is but a Servant to the Owners Answer The Law takes notice of him as no more than a Servant 'T is known that he may impawn the Ship if occasion be and sell bona peritura 2 Cro. 330. Hob. 11. He is rather an Officer than a Servant In an Escape the Gaoler may be charged tho' the Sheriff is also liable for respondeat superior But the Turnkey cannot be sued for he is but a meer Servant By the Civil Law the Master or Owner is chargeable at the Election of the Merchant 'T is further objected That he receives Wages from the Owners Answer In effect the Merchant pays him for he pays the Owners fraight so that 't is but handed over by them to the Master if the Fraight be lost the Wages are lost too for the rule is Fraight is the mother of Wages Therefore tho' the Declaration is that the Master received Wages of the Merchant and the verdict is That the Owners pay it 't is no material variance Objection 'T is found that there were the usual number of Men to guard the Ship Answer True for the Ship but not with reference to the Goods for the number ought to be more or less as the Port is dangerous and the Goods of value 33 H. 6. 1. If Rebels break a Gaol so that the Prisoners escape the Gaoler is liable but it is otherwise of Enemies so the Master is not chargable where the Ship is spoiled by Pirates And if a Carrier be robbed by an Hundred men he is never the more excused Ante. Cox versus Mathews THe Case was moved again And Hale said that if a Man Builds a House upon his own ground he that hath the Contiguous ground may Build upon it also tho' he doth thereby stop the Lights of the other House for cujus est solum ejus est usque ad coelum Poph. 170. and this holds unless there be Custom to the contrary as in London But in an Action for stopping of his Light a Man need not declare of an antient House for if a Man should Build an House up-his own ground and then grant the House to A. and grants certain Lands adjoyning to B.B. could not Build to the stopping of A's Lights in that Case 1 Cro. Sands and Trefuses 415. But the Case at Bar is without question for he declares That the Defendant fixed Boards to the Windows of the Plaintiff's House Anonymus UPon a motion to set aside an Inquisition taken before the Coroner super visum corporis certified into this Court that J.S. killed himself and was Non compos mentis Hale said such an Inquisition that finds a Man Felo de se is Traversable but no Traverse can be taken to make a Man Felo de se but fugam fecit is never Traversable Clue versus Baily IN Replevin the Defendant made Conusans as Bailiff to J. S. who demised the place where under certain Rent c. The Plaintiff Traverses the Demise and concluded hoc paratus est verificare To which the Defendant demurred generally And the Court were in doubt whether this ill conclusion of the Plea were not helped upon a general Demurrer Hale It were well the Causes of Demurrer were always assigned Specially and not to say only incertum dubium caret forma c. The old way was when Pleadings were drawn at the Bar to make the exception immediately and the other Party might mend if he pleased or might Demurr if he durst venture it And tho' now they are put in Paper yet such a Course should be observed for Demurrers were not designed to catch Men This not concluding to the Country seems to be but matter of Form and the Demurrer should have been quia non bene concludit Here the Defendant pleads that J. S. demised the Land for Life and without expressing the place of the Demise because of necessity it must be upon the Land Blake versus .... ERror of a Judgment in Replevin in the Mannor Court of Hexam in Northumberland where the Defendant avowed for Damage fesant The Plaintiff replied that J. S. was seized of the Mannor of Tallowfield in D. and that time out of mind he had Common c. in the place where and shewed himself to be Tenant and justified the putting in of his Beasts for Common and the Prescription being traversed it was found for the Avowant The Errors assigned were First In the Venire which was quia nec the Plaintiff nec Defendant aliqua affinitate attingunt instead of qui nec Hale said it was aided by the Statute of 8 H. 6. that helps Error in Process But Twisden said that Statute did not extend to inferiour Courts Another Error insisted on was that the Avowant did not shew that the Mannor of Tallowfield was infra Jurisdictionem Curiae But the Venire was extra vill ' Manerium de Tallowfield infra Jurisdictionem Curiae But the Court held that that was not sufficient to intimate that it was within the Jurisdiction but must have been shewn in pleading And Hale said seeing the Plaintiff had omitted to do it the Avowant might in his Rejoynder have alledged Tallowfield to have béen within the Jurisdiction as where one pleads a Plea without a place the other is not bound to Demurr but for his expedition may shew the place in his Replication Then VVild said this seems to be aided by the Statute of 21 Jac. which Enacteth That if the Jury comes out of any one of the places it sufficeth and here the Jury came as well out of the Vill where the Beasts were taken shewn to be within the Jurisdiction as the Mannor of Tallowfield Hale That will not serve in this Case for the Court could not Award a Venire to a place out of the Jurisdiction nor Jurors could not be returned out of such a place to try a Cause there Another Error assigned was that the Award of the Venire was praeceptum est per seneschallum and not said in eadem Curia To which it was answered That being on the same day upon which the Court was said to be held it must be intended so VVild held the Judgment ought to be reversed for the last Cause Twisden Principally for the first for he held that the Statute of the 8 H. 6. Aided not Process in inferiour Courts therefore where in the Award of the Venire it has been per quos rei veritas melius Scire poterit instead of Sciri the Judgment has been reversed Hale said that it ought to be Sciri for so it is in the Register and in the Statute of Eliz. that sets the Estate of Jurors at 4 l per ann But for the second Error he held that the Judgment ought to be reversed Whaley versus Tancred TRin. 23 Car. 2. Rot. 1513. In an Ejectment the Case was this Lessee for years makes a Feoffment and levies a Fine