But in our Case the act being done by the issue in Tail himself shall not enable him to make voyd the Lease made by his Mother no more then if a Tenant in Tail makes a Lease for years and levies a Fine with proclamations to the Donor and dyes having issue yet the Donor shall not avoyd the Lease Vid. Lord Aberganies Case Cook 6 Rep. And although that the Wife were a Ioyntress within the Statute of 11 H. 7. yet is this Lease clearly out of the Statute because that it is no bar or discontinuance to the Estate in Tail as it is in Sir George Browns Case Cook 3 Rep. for this Lease was voydable by the issue unless he had bar'd himself by his own Fine And I conceive this Lease is also good against the Devisee for when a Tenant in Tail makes a Lease for years or grants a Rent common c. or acknowledgeth a Statute or doth in some other manner charge the Land this is a good Lease Grant or Charge to binde the Tenant in Tail and all other except the issues in Tail and those in Reversion And the reason of this is because the Statute of Westminster 2. cap. 1. that was made to avoyd such charges does not ayd any persons except the issues in Tail and those in Remainder and Reversion And therefore if Tenant in Tail grant a Rent or acknowledg a Statute and dyes the issue shall not be charged with it and so shall his Feoffee but if the Tenant in Tail himself after such charge infeoffs another and dyes the Feoffee shall hold the Land charged and if a Tenant in Tail makes a Lease for years and dyes and the issue doth accept the Rent the Lease is made good and is absolute but if he dyes seised of the Estate-Tail the issue hath his election either to make the Estate good by his acceptance of the Rent or to avoyd the Lease by his entry and if he infeoff a stranger before entry the Feoffee shall never avoyd the Lease and if the issue doth accept the Rent he maketh the Lease good for his time and as the Feoffee of the Tenant in Tail and all those who come to the Land by any assurance made be the Tenant in Tail whereby the Estate in Tail is barred or discontinued shall hold the Estate charged with the Leases and charges made by the Tenant in Tail so shall all those in like manner who come to the Land under the said Tenant in Tail although the Estate-tail doth remain not barred or discontinued saving the issues in Tail who are ayded by the Statute of Westminster the 2. And therefore if Tenant in Tail grants a Rent in fee and takes a Wife and dyes the Wife shall hold charged with the Rent and so if a woman Tenant in Tail grants a Rent and marries and hath issue and dyes the Husband being Tenant by the curtesie shall hold the Land charged for they are not ayded by the said Statute and so if Tenant in Tail grants a Rent in Fee and makes a Lease for three lives warranted by the Statute of the 32 of Hen. the 8. and dyes the Lessee shall hold the Land charged Cooks Rep. 9. Count. Bedfords Case And in the said Case of the Lord Abergeveny it is said that the surviving Ioyntenant by acceptance of the Lease hath deprived himself of the way and means of avoyding the charge for vis accrescendi was the onely means of avoyding it and the right of survivor is gone by the Release And so in our Case the issue in Tail might have avoyded this Lease by his entry but he hath quite barred himself by his Fine And as to the Statute of the 11 H. 7. cap. 20. I conceive that nothing is prohibited by this Statute but onely such Acts as are a bar of the Estate-tail or a discontinuance thereof for so are the words of the Stature viz. If any woman shall discontinue alien release or confirm with Warranty c. And in Sir George Browns Case in Cooks Repor fol. 350. it is there argued Whether a Discontinuance without Warranty be within that Statute but it was resolved that these words with Warranty doe refer onely to Releases and Confirmations which make not discontinuance without Warranty for the intention of the Statute was not onely to prohibit every bar but also every discontinuance but here in this case there is no bar or discontinuance for the woman hath made a Lease for years rendering Rent by which the Estate-tail is neither bound nor discontinued but she remains Tenant in Tail as she was before and so dyed seised of such Estate and therefore if it had not been for the Fine levyed by the issue in Tail himself she might have entered and have avoyded the Lease and this is not like the Case there put by Anderson where Feme Tenant in Tail in Ioynture within the Statute does accept a Fine sur conusans de droit come ceo c. and therefore does grant and render the Estate for 1000 years for though this be no discontinuance of the Estate-tail yet is it a bar of the Estate during the time And Hillar 22 Jacob. I argued this Case again and all the Court viz. Doderidge Jones and Whitlock did agree That the issue in Tail was barred by the Fine to avoyd this Lease and that although the Estate-tail was barred yet is it not extinguished but remains in esse to support the Lease so long as any issue in Tail does remain alive and so they agreed the Lease to be good Wherefore Iudgment was given for the Plaintiff Judicium George Bishop of Chichester Plaintiff John Free-land Defendant 1 Caroli Rot. 607. THe Case was That a Bishop was seised in fee of a Park to which there was the office of a Keeper belonging with a fee of five marks with a Livery granted from time to time by the Bishop And the Bishop does grant the said Office together with the fees necnon cum pastura pro duobus equis in eodem Parco which Grant was confirmed by the Dean and Chapter The Bishop dyes and another is made Bishop And whether this Grant was good to binde the Successor was the Question And I conceive that this is a good Grant against the Successor and will binde him And first I conceive it will not be denyed but that if a Bishop hath a Park he by the Common Law may grant the Office of the Keeper of that Park to whom he will with such fees and wages and for such an estaâ—e as he will and this being confirmed by the Dean and Chapter is good to binde the Successor and therefore it is to be considered Whether any alteration of the Law be made in this point by reason of any Statute In the Bishop of Salisburies Case Cooks 10 Rep. it is there resolved that by the Statute of the first of Elizabeth Bishops are thereby generally restrained from making any estate or interest of
conceive that the request is made in good time enough Answer for two Reasons The Estate here is to be made by the Defendant and although he be not bound to do it without request yet may he do it or at least he may offer to do it without any request and therefore if there be any loss in the not doing of it it is his own fault because he did not offer to make the Estate and is not the Plaintiffs fault and if he had offered to make the Estate and the Plaintiff had refused he had been excused And therefore the rule is given in the Lord Cromwels Case aforesaid that when a woman or a Grantee upon condition is to make an Estate to the Grantor and no time is limited he hath time for his life unless the party who is to have the Estate do hasten it by request but if an advowson be granted on such condition the Regrant ought to to be before the Church becomes voyd so if the condition be to grant Rent payable at certain days the Grant ought to be before any day of payment for otherwise he shall lose the Presentation and the Rent which will incur before the Grant made And in the 14 Ed. 3. Debt 138. In a Debt upon a Bond the Defendant pleaded the Condition viz. That if he granted twelve marks Rent the Bond should be voyd and demanded Iudgment c. because no time was limited so that he might do it when he would and said that he was always ready to grant the twelve marks Rent and because he demurred not issue was joyned c. If this not making request shall be any damage to the Plaintiff it must be because the Defendant suffers loss by it as in the cases above cited but in this case the Defendant hath the same remedy for the 20 l. although no Estate be made as he should have had if the Estate had been made for by the fourth Article it is agreed that if there be no Estate made of the Land the Plaintiff shall enter at the Anunciation 1612. And I conceive that this payment ought to be made at the time limited for the entry for it is a mutual agreement that doth binde both parties and therefore it lies not in the power of the Plaintiff for his want of entry to defeat the Defendant of his 20 l. agreed to be payd to him but when he enters it shall be intended that he entered when it was agreed he should enter viz. at the Anunciation 1612. And if he payd it not then the Defendant might have had his Action of Covenant whether any Lease were made or not And in Sir Andrew Corbets Case Cook Rep. 4. 81. certain Land is devised to A. B. until 800 l. pound be levyed that is until it may be levyed and so in case of a Lease or limitation of a use for otherwise it should be in their power to hold out the Lessor for ever and so in case of an Elegit upon the Statute of Westm the 2d. cap. 18. and of Retinue for the double value of a Marriage by the Statute of Merton cap. 6. Opinion of the Court. And the whole Court was of Opinion that the request came too late whereupon they were of Opinion to give Iudgment against the Plaintiff but I prayed that the Plaintiff might discontinue his Suit which was granted Rot. 609. Michaelmas 13 Jacob. Smalman Plaintiff against John Agborrow and Edmund Agborrow Defendants IN an Action of Trespass for that the Defendants the 13 Maii 13 Iacob six Heifers of the Plaintiff of the price of 20 l. at Dodenham in a place called Well-Marsh did take chase and drive away to the damage of 10 l. c. The Defendants to all except the chasing did plead Not guilty And as to the chasing they said that the place where c. is and at the time wherein c. was the Freehold of one Francis Agborrow and so did justifie as his servants for damage feasant c. Replication The Plaintiff replyed that before the said Francis Agborrow had any thing c. the Dean and Chapter of the Cathedral of St. Mary the Virgin in Worcester were seised in fee of the Mannor of Aukerden and Dodenham whereof the place where c. is and at the time whereof c. was parcel c. And that the 25 of November 10 Elizab. the said Dean and Chapter by their Indenture did Demise the said Mannor to William Agborrow and Jane his Wife and to the said Francis Agborrow for their lives And that the 20 Febru 39 Elizab. William Agborrow dyed seised and that the 21. of Decemb. 39. Eliz. Jane did marry with Robert Hawkins And that the 25. Febr. 40. Eliz. Robert Hawkins and the said Jane by their Indenture did demise the said Mannor to William Hawkins and William Heaven for sixty years from the date c. if the said Jane and Francis Agborrow or either of them should so long live rendring twenty pounds rent and that the 25. of Mar. 13. Jac. William Hawkins and William Heaven did grant their Estate to the Plaintiff whereby he was possessed and put in his Cattel there to grase which were there untill the Defendant took them away c. And did aver the life of Francis Agborrow The Defendants rejoyn and say that the said Jane did die the 14. Rejoynder of Mar. 12. Jac. and that Francis Agborrow did hold himself in c. Per jus accresendi Vpon which the Plaintiff demurred in Law A man and a woman are Ioynt-tenants for life the woman marries The Case the Husband and Wife by Indenture do let their moyety for years rendring Rent and after the woman dies And the question was whether the surviving joynt-Ioynt-tenant could avoid this Lease And I conceive he cannot And for the Argument of this Case I shall observe these two things thereof That if the woman who made this Lease had been sole at the time of the making this Lease had been good during her life and the life of her Companion the other joynt-Ioynt-tenant That this Lease being made by the Husband and Wife is not void but voidable And as to the first Point Littleton fol. 63. and 64. saies that if two Part. 1 joynt-Ioynt-tenants in Fee be and one grants a Rent-charge and dies the Survivor shall hold the Land discharged but if one makes a Lease for years and dies the Lease is good against the Survivor and in Hales Case in the Comment If two Ioynt-tenants be for years and one of them does grant to I.S. that if he payes twenty pounds at Michaelmas he shall have his moyety and the Grantor dies and I. S. does pay the money yet shall not he have the Land because the Condition precedes the Estate but if he make a Lease for yeares to commence at a day to come and dies before the day yet is the Lease good against the Survivor and so in Trin. 37. Eli. Harbury and
at the time of the Declaration the Subjects of the King of Spain I conceive that the Plaintiff ought to alledg that these spoyls were to the damage of the Plaintiff I conceive that he ought to have named one of the Subjects of the King of Spain and not to leave it so uncertain to the Iury as to have them charged to enquire of all his Subjâ—cts for the Plaintiff takes notice of the persons that they were the Subjects of the King of Spain and therefore he may as well know their names Dyer 99. 285. An Indictment of Murder of one unknown or stealing the goods of one unknown is good because he may be discovered And after the Plaintiff discontinued his Suit Holland and others against Jackson and others RIchard Holland and Margaret his wife one of the daughters and heirs of the body of Sir Robert Langley Knight and William Dausey and Ann his wife the other daughter of the said Sir Robert brought a Writ of Error to reverse a common Recovery had at Lancaster die Lunae 13 Elizab. In a Writ of Entry sur Disseisin in the Post between the said Francis Jackson and Henry Oyden Plaintiffs and Robert Leigh and James Haye Tenants of 22 Messuages 10 Cottages 20 Tofts 22 Gardens 20 Orchards 300 acres of Land 200 of Pasture 40 of Wood 500 of Furze 100 of Turbary c. with the appurtenance in Alkerington and Prestnitch wherein the Tenants did vouch Thomas Leigh and Katherin his wife who did appear by George Butler their Attorney who entred into warranty and did vouch William Forster present in Court who did warrant c. ad damnum c. for that before the purchase of the said Writ of Entry and since the 27 H 8. Sir Robert Langley was seised in see of the said Tenements and thereof did infeoff Thurston Tilsley Fitton and Hopwood in fee to the use of himself for life and after to the use of the said Katherin in T. the remainder to the use of the right heirs of the body of the said Sir Robert the remainder to the use of his heirs Sir Robert was seised for life with remainders over c. and then Sir Robert dyed seised after whose death the said Tenements did remain to Katherin in Tayl the remainder to Katherin and the Plaintiffs Margaret and Ann and one Dorothy as daughters and heirs of the body of Sir Robert the Reversion to the said daughters and their heirs whereupon Katherin did enter and was seised in Tayl with Remainders as aforesaid and did marry Thomas Leigh whereupon the said Recovery was had in manner and form as aforesaid after which Recovery Thomas Leigh and Katherin did dye without issue of the body of Katherin and Dorothy dyed also without issue whereby the right of the said Tenements did remain to the said Margaret and Ann as daughters and heirs of the body of the said Sir Robert The Writ of Recovery was certified and the Plaintiffs assigned Error for that Katherin was within age at the time of the appearance of her and her Husband by the said Attorney and was within the age of 21 years at the time of the Iudgment to wit of the age of eighteen years and no more Hereupon a Scire facias was awarded against the Recoverors who being returned dead a Scire facias was awarded against the heirs and Ter-tenants whereupon Ambrose Jackson was returned son and heir of the said Jackson and Thomas Hulm and Margaret his wife and Isabel Ogden daughters and heirs of the said Ogden and William Ogden and others were returned Ter-tenants and the heirs and Ter-tenants did appear and pleaded several Pleas some to the Writ and some in Bar and after the Writ of Error was discontinued Hillar 11 Jacob. The Plaintiffs purchased a new Writ of Error of the said Tenements omitting the Rent and assigned the said Error whereupon a Scire facias was awarded against the Heirs and Ter-tenants which was returned to wit that Margaret Hulm was dead without issue and thereupon a Scire facias was directed to the said Jackson and Ogden the Heirs c. and Katherin Leigh and Robert Leigh and fourty other Ter-tenants who did appear and thereupon Whereupon the said Error was assigned The Ter-tenants did plead that John Chatterton was Tenant of a Cottage c. in A. aforesaid parcel of the said Tenements The Heirs pleaded in null est errat The Plaintiff did acknowledg the Plea of the Ter-tenants and thereupon a Scire facias was awarded against John Chatterton who did appear and the Plaintiff did assign the said Error whereupon Jane Jackson one of the Ter-tenants did plead that Katherin was of full age c. whereupon issue was joyned And George Chatterton and ten others of the Ter-tenants did plead non-tenure And the Heirs of the Recoverors did plead in null est errat And Mary Taylor did plead that before the Recovery a Fine was levyed the 4 Septemb. 13 Elizab. between the said Robert Leigh and James Haye Plaintiffs and Thomas Leigh and Katherin his Wife Deforceators of the said Tenements whereupon the said Thomas and Katherin did acknowledg the said Tenements to be the right of the said Robert c. with warranty against them and the Heirs of Katherin which Fine was proclaimed c. and was to the use of the Conusees and their Heirs until the Recovery should be perfected and then the seventh of March the 13 Eliz. the Writ of Entry was pursued which was to the use of Thomas and Katherin his Wife in Tayl the Remainder to Thomas and his Heirâ— Thomas and Katherin did demise to the said Mary a Cottage and three acres of Land parcel of the said Tenements for life c. wherefore she did demand Iudgment of the Writ against the Fine with proclamations Robert Leigh and 28 others of the ter-Ter-tenants did plead the said Fine with warranty and that Katherin dyed without issue and that Thomas was seised in fee whose estate they have and that Thomas dyed and that after the death of Katherin the said warranty did descend to Margaret and Ann as sisters and heirs of Katherin and did demand Iudgment if they should maintain this Writ against the said Fine and against the warranty The Plaintiffs as to the said several pleas of non-tenure in null errat the fine with proclamations and the warranty did severally demur in Law to which the Defendants did severally joyn And I conceive that the Writ of Error does well lie and that the Recovery is erroneous and therefore ought to be reverst And for the Argument of the Case I shall divide it into three parts If the Writ of Error will lie 1. In respect of the Plaintiffs 2. Notwithstanding the plea of non-tenure pleaded in abatement thereof by Chatterton and ten others of the Ter-tenants Whether there be any Error in the Recovery and if it be such an Error as the Plaintiffs may assign If the Plaintiffs be barred thereof by the pleas
one could enter into an Advowson therefore no Livery can be made and 11 H. 4. 3. 6. An Advowson in grosse cannot passe without Deed 9 Ed. 4. 47. a. One cannot grant Proximam advocationem without Deed Dyer 323. Advowson of the Vicaridge of D. doth passe by the Grant of all hereditaments in D. although it lies not in Livery nor is visible and Coke 9. Rep. 96. An Advowson is not manuall but is Haereditas incorporata and so Littleton 3. of things which do not lye in manuall occupation or possession as an Advowson he shall not plead as seised in his Demesne as of fee but as of fee and so Littleton 139. If Tenant in Taile grants the Advowson it is no discontinuance And the reason is apparent because that nothing can passe by Livery but that whereof possession may be taken by the Feoffor or Donor and given to him by the Feoffee or Donee And it is more colourable to say that he in Reversion upon an Estate for life may make Livery for although a Reversion be not visible or mannuall yet Terra revertens which the Grantee shall have after the Estate determined is manuall and yet I conceive that none will hold that such a Reversion so long as it continues a Reversion may passe by Livery If it be admitted that an Advowson may passe by Livery yet it shall be intended by this Verdict that it doth not passe because it is found that Valentine did grant it by Deed and there is no doubt but it may passe by Deed without Livery and therefore no Livery being found Livery shall not be intended for it shall not be intended to be a discontinuance whereby the Tenant in Taile shall do wrong when the Advowson may well passe by Deed which is no wrong And therefore I conceive that notwithstanding this objection that here is no discontinuance but only a grant of an Advowson which is determinable by the death of the Tenant in Taile who made it from whence it follows that Sir Richard at the time of his grant of the Lease had only a Remainder in fee in the Advowson determinable on the death of Valentine his Father which Estate is only charged by his confirmation for as Issue in Taile he cannot make any confirmation because he had nothing in him at that time 10 Ed. 3. 2. Confirmation 22. If the Son confirmes the Estate of the Disseisor in the life of his Father and the Father dies the Son shall not be barred by his confirmation without Warranty 13 Ed. 1. Confirmation 19. If one doth quit Claime for him and his heirs all his Right before that his Right doth happen the quite claim is nothing and so is Littleton 106. Releases and the reason of these Cases is upon the Rule of the Common Law which is that one cannot grant or charge that which one hath not By which it plainly appears that this implyed Confirmation made by Sir Richard does make the Lease good only for so long time as he hath Estate in the Advowson which is determinable by the death of Valentine And to prove that it is so determinable it is a certain Rule that all Grants and Charges made by Tenant in taile are determined with his life and so is Littleton Discontinuance 139. If Tenant in taile of an Advowson or Common does grant this in fee it is no Discontinuance for the Grantee hath no Estate but for life of the Tenant in taile who made the Grant 22 H. 3. Discontinuance 52. If a Rent be granted to husband and wife in fee and the husband grants this in fee and dies yet the wife may distrain and shall not be put to her Action 36. Assise 8. Tenant in taile of a Reversion grants the same in fee with Warranty and dies leaving Assets the Tenant for life dies and the Issue enters and his entry congeable for the Grant is meerly determined by his death so that the Warranty cannot work 38 H. 8. b. Discontinuance 35. If the King Tenant in taile grants the Land for lifâ— it is no discontinuance for a Grant without Livery makes no discontinuance but this shall not bind but during the life of the Grantor 26 H. 7. 4. Fineaux Tenant in taile of Services is like Tenant for life and by his Grant nothing doth passe but for his life and after his death the Issue may distrain but if he brings a Formedon he shall be barred by the Warranty for then he admits it to be a Discontinuance And Hil. 39 Eliz. Rot. 941. In the Common Pleas between Keen and Cox Thomas Jennings Tenant in taile the Remainder to John his Brother made a Lease for three lives according to the Statute of 32 H. 8. with Warranty and dies without Issue John being his heire who entered and agreed good for the Estate of the Lessee was determined by the death of the Lessor without Issue wherefore the Warranty could be no bar to the Remainder And although the Issue in case of Grant of a Rent by his Ancestor may have a Formedon yet that is no proof that the Grant is not determined for although it be determined yet may he admit himself out of possession if he will and is like to the Case where one takes my Rent yet he gains no possession by this but that I may distrain notwithstanding yet if I will I may admit the possession to be out of me and so maintain an Assise against the Pernor And as to the opinion in the case of Fines in the 3. Rep. That if there be Tenant in taile of a Rent or a thing which lies in Grant who grants the same by Fine and dies before the Proclamations made that the Grant is not determined but that the Proclamations may be made is grounded upon the reasonable construction of the Statute of the 4 H. 7. of Fines for otherwise the provision of the Statute that the fine shall be a bar cannot be for that is the reason there given But it hath been objected Object that because it was not found by the Iury that Sir Richard Knightley was dead it shall be intended that he is alive and then his confirmation remains in force To which I answer 1. That his being alive cannot be presumed Answer because it is not so found for although a Fee-simple being once alledged shall be intended to continue untill the contrary appears yet is it not so of an Estate-taile or such other particular Estate but he who will take advantage of such Estate ought to aver the continuance thereof and that is a certain Rule in pleading as in the 15 Ed. 3. Tenant in Taile of a Rent grants the Rent over the Grantee when he makes Title there ought to aver the life of the Tenant in Taile for by his death the Grant is determined vide Dyer 73. 19 H. 6. 73. 5 H. 7. 39. 15 Ed. 4. 6. And although there is a speciall Verdict in our Case which shall be taken more
Bartons Case Two Ioynt-tenants are for life and one lets his moyety for years to commence after his death and dies and agreed to be a good Lease against the Survivor for as Litton saith every joynt-Ioynt-tenant is seised Per my per tout and hath an Estate in one moyety not only for his own life or his own time but also for the time and life of his Companion and therefore every Estate made by him is good for a moyety so long as the Estate of himself and his Companion continues but a Rent-charge shall not bind his Companion because he claimes by the first Conveyance which is above his Companions Estate And as to the second point it is cleer that when Husband and Wife Part. 2 make a Feoffment in Fee or a Lease for years of the Land of the Wife rendring Rent the Wife after the death of her Husband may accept the Rent and make the Lease good as in 26 H. 8. 2. the case of the Feoffment is agreed and if a Woman after the death of her Husband does accept the Rent she shall be barred in a Cui in vita 11. H. 7. 13. 15. Ed. 4. 17. and Dyer 91. B. Husband and Wife make a Lease for years by Indenture and the Husband dies and she accepts the Rent she shall be bound thereby and shall not avoid the Lease Vpon which two things being as I conceive unquestionable it follows that this Lease at the time of the making thereof is not void but voidable And therefore the sole question will be how this Lease is voidable and if it may be avoided by the surviving Ioynt-tenant or not And I conceive that it is avoidable by the Wife only if she survive her Husband and not by the other Ioynt-tenant and that for two reasons First Because the Survivor comes in above the Lease and therefore cannot take advantage of any imperfection or defect to avoid the Lease 14. Ed. 4. 1. B. If a Feoffment or a Lease for life be made to two and one dies the other may plead the Estate to be made to him only for he is not in by him that is dead but by the Feoffor or Lessor and Dyer 187. a. Two joynt-Ioynt-tenants for life one makes a Lease for yeares rendring Rent and dies the Survivor shall not have the Rent And if Tenant for life makes a Lease for years rendring Rent and surrenders to the Lessor the Lessor shall not have the Rent for he is in by his Reversion which is above the Lease for years and 28. H. 8. 96. a. An Executor had Iudgment to râ—cover a Debt and died intestate whereupon Administration is committed to another he shall not have a Scire facias upon this Iudgment because that he being Administrator immediately to the Testator is above the recovery Secondly There is no privity between the surviving Ioynt-tenant and the Lessor to make him avoid the Lease which is voidable as in 8. Rep. Whittinghams case Privies in blood as Heir generall or speciall shall avoid a voidable estate made by the Ancestor as if an Infant make a Feoffment in Fee his Heir may well enter and avoid the Feoffment but Privies in Law as Lord by escheat Lord of a Villain or Lord who enters for Mortmain shall never take benefit of the Infancy because they are but strangers And therefore if an Infant make a Feoffment in Fee and dies without Heir the Feoffment is unavoidable 49. Ed. 3. 13. 6. H. 4. 3 7. H. 5. 9. 39. H. 6. 42. And as to Privies in Estate as Ioynt-tenants Husband and Wife Donor in Tail and Donee Lessor and Lessee it is there also resolved that they shall not take advantage of Infancy unleâ—â—e it be in some speciall cases And therefore if Tenant in Tail within age makes a Feoffment in Fee and dies without Issue the Donor shall not enter contrary to the opinion of Rick and Frisby 6. H. 4. 3. because that here is only a Privity in Estate between them and no right does accrue to the Donor by the death of the Donee So if two Ioynt-tenants in Fee be and one of them being within age makes a Feoffment in Fee and dies the Survivor shall not enter but if two Ioynt-tenants within age do make a Feoffment one joynt Right remains in them and therefore if one dies the Right will survive and the Survivor may enter in all and the same Law of Covertue or non sanae memoriae as it is said also in Whittinghams case and in Fitzherb N. B. 192. K. If two Ioynt-tenants within age do alien in Fee they must sue severall Writs of Dum fuit infra aetatem because that the cause of their Action is their nonage which is severall for the nonage of the one is not the nonage of the other But if Husband and Wife within age do make a Feoffment of the Wifes land and the Husband dye the Wife shall have a Dum fuit infra aetatem 14. Ed. 3. Dum fuit infra aetatem 6. and 12. H. 7. 18. B. Kelloway In a Formedon by the Lord Brook against the Lord Latimer if an Infant does make a Feoffment none shall avoid this but the Infant himself and his Heirs and no stranger and the same Law of a Feme Covert And as to the case of Harvey and Thomas 33. Eliz. cited in the Lord Cromwells case Where the Husband made a Lease of his Wifes Land for years and then he and his Wife aliened by Fine and the Husband dies the Conusee shall avoid this Lease which I agree to for the Lease being made by the Husband only is utterly void against the Wife and cannot be made good by any Act done by the Wife and the Land passeth all from the woman by the Fine and therefore the Lease cannot bind the Conusee The Survivor in one case cannot make the Lease good by the acceptance of the Rent because that the Rent does not belong unto him and therefore he shall not be received to avoid this Lease as in Nat. B. 138. B. the Heir shall not have a Cessavit for ceasing in the time of his Ancestor for he shall not have the Rent or the arrearages incurred in the life of his Ancestors and the reason is as I conceive because that the Law does give this benefit to the Tenant for the saving of his Tenancy for the tender of arrearages the which cannot be to the Lord because that the Rent is not due to him and therefore the Lord shall lose his action rather then the Tenant shall be deprived of his advantage of saving the land by his tender And by this case also the Aunt and the Neice shall not joyne in a Cessavit for a ceasing made before the Title of the Neice accrued but in Nat. F.B. 139. it is otherwise there of joynt-tenants as I conceive the reason whereof is because as I conceive the Survivor shall have all the Rent and therefore the tender may be made to him
Sister and he to enter at the age of one and twenty years and if any of his Sons died before the age of one and twenty years his part should be divided amongst the Sâ—â—vivors and so every one should be heire to the other and all of them came of age and paid the money and it was holden that each of them had an Estate in Fee and not in Taile and Dyer 357. Chick did devise the Fee-simple of a Messuage to A. his wife and after her death to W. his Son which W. was his Heir apparent A. did enter and married again and dyed having Issue by him and adjudged that A. had an Estate for life the Reversion to W. for life the Remainder to A. in Fee and 14 Eliz. a. One seised of Lands in Fee devised them to B. and the heirs of his body and if he died that it should remain to A. in fee yet B. shall have an Estate in Taile by the first words and shall not be restrained by the last words And Trinit 37 Eliz Rot. 382. Bacon against Hill and having three Tenements did devise them to his wife for life and then one of them to each of his three Sons and if any did die his part should remain to the Survivors and if any had Issue and died before he entred his Issue should have it and R. one of the Sons had Issue the wife died and R. died and adjudged that his Issue should have nothing Object But it may be objected that Francis cannot die without heire so long and his Sisters are living and therefore it shall be construed that the Devisor did intend only the heires of his body Answer But it does not appear that the Daughters were of the whole blood to Francis so that they may be heires to him for although where a Brother or Sister is spoken of in pleading it shall be intended of the whole blood because a Brother of the half blood is but half a Brother yet here when the Father onely does call them his Sons and Daughters and is so found by the Iury that they were his Sons and Daughters yet this is no proof that they were of the whole blood for they are daughters to the Father by what ever wife they were had And so I conceive upon the whole matter that the wife does take an Estate for life by the devise and that the Son shall have a Fee-simple but yet subject to this future devise sc if he die without heire that the Wittingb shall have it and so all the Will shall be good except the limitation to the Daughters for their lives and it cannot be intended that the Devisor did intend to prefer the Wittingb being his collaterall Cosins before the Issue of his Daughters which Issues are of his owne body Judgment And before that I argued againe Hillar 14 Jacob. Iudgment was given for the Plaintiff for they all agreed that Francis had but an Estate-tail by these words of the Will viz. If M. A. and A. do out live their Mother and their brother Francis and his heires and Francis cannot die without heire so long as his Sisters are living and therefore the word Heirs shall not be intended Heires generall but heires of his body wherefore Iudgment was entred ut supra c. Mich. 14 Jac. Mason against Manning IN an Ejectment upon a Lease made by John Crooker and Christopher Crooker the two and twentieth of May 14 Jac. of two houses forty acres of Land forty of Meadow and forty of Pasture in S. Needs Habendum from the Annunciation last past for three years The Ejectment was the twenty third of May in the same yeare The Defendant as to the force and armes c. pleaded not guilty and as to the residue he said that Queen Elizabeth was seised in Fee of the Mannor of S. Needs whereof the said Tenements are and time out of mind were parcell and that the Queen the ninth of March in the one and thirtieth year of her Raign by her Letters Patents shewed here under the Exchequer Seal did devise the said Tenements to Robert Croker for life the Remainder to Edward Bett for life the Remainder to Edward Adams for life the Queen dies whereby the Reversion does descend to the King Robert Croker dies and the thirtieth of March 14 Jacob. Edward Bet doth devise the said Tenements to the Defendant from the Annunciation last past for three years whereby he entred and was possessed untill the said John and Christopher Croker did oust him and did disseise the said Edward Bet whereby they were seised in fee by disseisin and made the Lease to the Plaintiff upon which the Defendant claiming his term did enter and did out him and the Defendant was and yet is possessed of the said Tenements the Reversion to Edward Bet for life the remainder to Edward Adams for life the Reversion to the King unde non intendit quod curia domino Rege inconsulto ulterius procedere vellet aut debeat and prayed ayd of the King and did aver the life of Edward Bet. And I conceive that ayd is not grantable in this case 1. Because that it is but an Action of Trespass 4 H. 6. 10. Tenant for life of a Lease from the King shall not have ayd of the King for that no Freehold is to be recovered and he is able to plead to all matters in a Trespass 2. The Defendant shall not have ayd of the King because he is not his immediate Tenant but he may pray in ayd of Edward Bet his Lessor and he of the King 1 H. 4. 18. In a Scire facias to execute a Fine the Tenant said that the Land was given to him for life the remainder to N. in Tail the remainder to W. in fee who was attaint of Treason whereby his remainder came to the King and he prayed ayd c. And the Court said that he ought to pray ayd of N. and he of the King and after he said that W. was also attaint of Treason whereby he had ayd of the King 33 H. 6. 29. In a Trespass where the Defendant justified as Baily of a Hundred to distrain for amercements and prayed ayd of the King and by Prisot he could not have it for the Sheriff is the immediate Officer to the King and to this agrees 11 H. 6. 39. where such justification was for taking of Toll and 9 H. 6. 26. In a Replevin the Defendant made Conusance as Baily of I. who held of the King for life and prayed ayd of the King and adjudged he should not have it for there is no privity betwixt the King and him because he is not immediate and 28 H. 6. 13. A man shall not have ayd of the King and Queen or of the King and his Tenant for life but first of the Queen or Tenant for life and they of the King and a man shall not have ayd of the King but where he is Baily or Servant
time as in 11 Ed. 3. and 8 H. 5. 10. and 2 H. 4. 2. The Successor shall maintain an Action of Waste against such Lessee for life but a Lease for years is meerly determined by the death of the Lessor 38 H. 8. 6. Leases 18. and 24 H. 8. 6. There a diversity is taken and agreed between a Lease for life made by a Parson in which case the acceptance of the Rent or fealty by the Successor shall make it good for his time and a Lease for years which is meerly determined by the death of the Lessor so that no acceptance of the Rent or fealty can make it good and therefore the acceptance of the Rent in our case which is found to be made by the Lessor himself and all the succeeding persons and also by the Rule of these Books is nothing to the purpose and therefore I shall speak no more of that Vide 2 Ed. 6. 33. Dyer 239. And as to the second Point sc If here be any sufficient confirmation of the Lease against the Plaintiff or not The Defendant hath endeavoured to have many things to be found by the Iury to make a confirmation 1. The expresse confirmation by Valentine Knightley the Father of Sir Richard 2. The Grant of the Lease by Sir Richard to Edward Knightley his Son 3. The taking of the Profits by Sir Richard to the use of his Son being within age 4. The Lease made by Sir Richard the 21. of Eliz. to Rogers the Incumbent for I cannot conceive for what cause any of these things are found unlesse it be to opperate as to a confirmation And as to the first third and fourth I do conceive that they nor none of them can make this Lease good for by the first it is found that Valentine at the making of his confirmation had but an Estate for life of Ursula Knightley the which is meerly determined by the death of Valentine and although Ursula be not found dead yet is not that materiall for this Advowson being a thing that lies only in Grant and not in Law cannot go to any Occupant And therefore the death of Valentine hath determined this as fully as if Ursula had been dead And therefore the diversity is when a rent or other thing which lies in grant is granted to one and his heirs for the life of another and the Grantee dies I agree that the heir by speciall limitation shall have this as Littleton 169. 19 Ed. 3. Account 56. but no Estranger can have it and the reason is because that the sole means that the Law doth give to one to gain an Estate of Occupancy is by Entry but no Entry can be in an Advowson Rent or any other thing that lies in Grant and therefore here can be no Occupancy 26. Assise 38. and 12 H. 7. 16. If he in Reversion doth enter after the Occupant and brings an Action against him the Occupant ought to plead the Lease for Cestuy que use whose Estate he hath but for a Rent or an Estate that lies in Grant none can plead a que Estate but ought to entitle himself by the Grant and that cannot any one do in this Case And as to the third matter of confirmation which is the taking of the Profits by Sir Richard Knightley this cannot be any confirmation of the Lease for although the assent of the Patron be sufficient yet it ought to be by Deed otherwise it cannot be good And as to the fourth which is the Lease made by Sir Richard by Rogers the Incumbent that is not any confirmation 1. Because this Lease does not concern the Lease made by Briggs but is an absolute and originall Lease made by Sir Richard himself as Owner of the Rectory 2. Because that at the making of this Sir Richard had nothing in the Rectory for he had granted all his term before to Edward Knightley and therefore his Lease to Rogers is void unlesse it be by way of Estoppell Then as to the second matter of confirmation sc whether the Grant of the Term by Sir Richard to Edward Knightley I will not agree to it at all but according to the resolution in Hodges case that this is a confirmation as good as Sir Richard could make it But this confirmation being in the nature of a charge upon the Advowson ought to be directed by the Estate which Sir Richard then had and being derived out of that Estate it cannot endure longer then the Estate as in Littleton 122. a. If a Parson doth charge the Glebe and the Patron and Ordinary confirm it the Grant shall be in force but in such case the Patron ought to have an Estate in fee for if he hath an Estate but for life or in Taile the Grant is good but during his life and the life of the Parson who grants it 31 Ed. 3. Grants 61. A Parson grants an Annuity to a Pryor which is confirmed by the Tenant in Dower of the Advowson this is not good after the death of the Tenant in Dower and Dyer 252. A Chantry Priest made a Lease for ninety nine years which was confirmed by the Patron who was Tenant in Taile and after the Chantry is dissolved by the 1. of Ed. 6. it is a question if the King shall avoid the Lease but it was agreed clearly that if the Chantry had continued that the Lease should be void against the Incumbent who comes in upon the presentation of the Tenant in Taile And this Rule being clear as I conceive it is that the confirmation shall not bind according to the Estate of the Patron the Estate which Sir Richard had in the Advowson at the time of his assignment which does imply a confirmation is to be considered And as to that the Case is That Valentine being Tenant in Tail of the Advowson by Deed did give and grant the Advowson to one in fee to the use of himself during the life of Ursula the Remainder to the use of Sir Richard being his Issue in Taile and thereupon it follows that Sir Richard had an Advowson in Remainder in Fee-taile depending on an Estate for anothers life but this fee was determinable upon the death of Valentine the Tenant in Taile But objection was made in the Argument against one Object that this Advowson being found to be granted by Valentine shall be intended to passe by Livery for it was said that an Advowson might passe by Livery and then here is a discontinuance But I deny first that an Advowson can passe by Livery Answer but admitting it would yet secondly Shall it not be taken by this Verdict to passe so And as to the first I must confesse that there are some suddain opinions in your Book that an Advowson may passe by Livery as 43 Ed. 3. 5. 11 H. 6. 4. and 20 Ed. 4. 5. yet are there many Authorities against it and so is the true reason of the Law 18 Ed. 3. 16. Shard It was never heard that
a Lease for four years the Lessee entred and the Lessor did grant the Land habendum from Midsomer next for life the Lesses after Midsomer did attorn and adjudged that the Grant was void and in Barkwicks Case 5 Rep. the reason thereof is given because that if the Grant should be good the Grantor should have a particular Estate scil during the first day of the date or in the mean time untill the Grant did begin to take effect without any Donor or Lessor which is against the Rules of Law And although this Grant of the Reversion be but for years yet is it all one for the diversity is between a Lease for years made Tenant in Fee or for life to commence in future and a grant of a Reversion for in the first Case it is but a future Charge upon the Land so that the Lessor hath his former Estate untill the Lease doth begin and the Lessee hath no Term but only interesse termin and therefore Hil. 38. Eliz in the Common Pleas between Row and White it was agreed that if the Lessor be disseised before the Lease begins the Lessee after the day of the Commencement may grant the term otherwise where a Lessee for yeares in possession is outed by an estranger for there his Term is turned into a Right but in the first Case he hath not any Term in esse and therefore it cannot be turned into a Right nor any wrong done thereunto And for direct Authorities in this Case 29 Eliz. in the Common Pleas the Countesse of Kents Case Where one having a Reversion in Fee does grant this Habendum after the death of I. S. for years and it was adjudged a void Grant And Trin. 39 Eliz. Johnson and Somerset in the Common Pleas Lessee for life grants the Reversion Habendum a die dat for ten years and adjudged a void Grant And in the Comment 155. by Brown If one having a Reversion does grant it habendum after a day to come for years this is a void Grant for if it may be granted from a day to come the Grantor shall have a particular Estate in the mean time by his own making which cannot be that one may be Lessor to himself or diminish his own Estate and there it is taken for a Rule that when there is a Rent in Esse or a Reversion c. a man cannot make this to be in esse for a time and to cease for another time or to grant it to another after the death of any or from a day to come relinquishing to himself an Estate in the mean time And in the Comment 197. b. Adams against Wortesbey agreed there that a Reversion cannot passe as a Reversion according to the common understanding thereof from a day to come But Haughton conceived that this Case being a bargain and sale whereby the use doth passe first this may well passe from a day to come Quod nullus dedixit Thirdly It is not averred that the twenty acres in which the Distresse was taken was not part of the Closes excepted so that it may be part of them and then no Distresse for the Rent can be taken there And although it may be gathered by some words in the Bar to the Avowry that the place where c. was parcell of the Land devised to Wiseman yet this shall not help the Conusans as in Cokes 7. Rep. fol. 24 25. where one having Land in Fee and another Land for years did grant a Rent for life out of both the Grantee distrained for the Rent and avowed that the Rent was granted out of the Lease land amongst other lands whereas he ought to have alledged the Rent to be granted out of the Land in Fee only and although the Plaintiff in his Bar to the Avowry hath shewed the truth of the Case yet this will not make the Avowry which wants substance to be good Judgment And all the Court did agree the Avowry to be naught for this exception Wherefore Iudgment was given for the Plaintiff in the Replevin Mich. 14 Jac. Webb and Jucks Case against Worfeild Rot. 266. IN a Writ of Error to reverse a Iudgment given in the Common Pleas for the now Defendant against the now Plaintiffs In which the Plaintiff did declare that the Defendants the fourteenth of Febr. 9 Jac. at Ponick in a place called Brancefords Court did take an Oxe from the Plaintiff ad damnum forty pounds The Defendants did acknowledge the taking of the said Oxe as Bayliffs to Elizabeth Ligon Widow for that the place where c. contained two acres of Land and that one Anne Ligon was seised in Fee of the Scite of the Mannor of Bransford and of seven Messuages three Gardens and a hundred and fifty acres of Land forty two of Meadow sixty six of Pasture five of Wood and seventy of Furzes and Heath in Ponick aforesaid Bransford Leigh Newland and Wick whereof the place where c. is parcell That the sixth of September the twenty fourth of H 8. Anne Ligon did devise this to John Parsons and Anne his Daughter for seventy years after the death of Elizabeth his wife if they or either of them shall so long live rendring five pounds four shillings eight pence Rent at the Annunciation Christmas Midsummer and Michaelmas That the eleventh of August 1554. Elizabeth Parsons died whereupon John and Anne Parsons entred And Ligon dies whereby the Reversion descended to Sir Rich. Ligon her Son and Heir and Sir Richard died wherby the same descended to William Ligon his Son and Heir who died also whereby the same descended to Richard Ligon his Son and Heir who died also and the same descended to Sir Richard Ligon his Son and heire who Hil. 33 Eliz. did levy a Fine Sur Conusans de droit come ceo c. to the use of himself for life the Remainder to the said Elizabeth Ligon then his Wife for life the Remainder to the Heirs of the body of Sir William the Remainder to the right Heires of Sir William 10 May 4. Jac. John Parsons died Pasch 6 Jac. Sir William Ligon and Elizabeth his wife did levy a Fine to the Plaintiff to the use of the Plaintiff for the life of Sir William the Remainder to the said Elizabeth for her life the Remainder to the Plaintiff in Fee Sir William dies whereby the Reversion does remain to Elizabeth his Wife And for seventy eight pounds six pence of the said Rent for three quarters of a year ending at Christmas 9 Jacob. they did acknowledge c. and they averred the lives of the said Elizabeth Ligon and the said Anne Parsons Bar. The Plaintiff said that the Fine levied by Sir William and Elizabeth his wife was to the use of the Plaintiff and his Heirs and justified the putting in of the said Oxe by the license of the said Anne Parsons Absque hoc that the said Fine was to the use of the Plaintiff for the life of
him and his heirs for ever if B. shall have issue of his body and if he die without heirs of his body that the Land shall revert to the Donor and his heirs B. had issue which died without issue and it was adjudged that B. had but an Estate in tail and because he died without heirs of his body it was adjudged that the Donor should recover against the collaterall heire of B. And if the Law be so in Deeds or Grants executed in the life of the Donor a fortiori in a Devise which is to be taken more favourably then an estate made by Deed and therefore it is sufficient in a Devise to have the intention of the Devisor understood either to make an estate in fee or in tail although proper words to make such an estate be not used and the intent of the Devisor cannot be more manifest to have an estate in tail then in this case As to the second Point the question will be whether the younger Son hath an estate in Tail or in Fee determinable by this limitation and it seemed to them that he shall have but an Estate in tail In which the question is to which estate these words of limitation to wit living the elder Son shall be referred viz. Whether to the Estate made to the younger Son or to the Estate given to the elder for if they be referred to the Estate made to the younger there is no question but these words do abridge restrain the estate but if to the elder then they make no restraint or restriction as to the estate of the younger Son but onely limit the remainder to the elder Son on this contingency only viz. If he be alive at the time of the death of the youngest Son without issue And to prove that these words shall be referred to the estate devised to the elder brother They said That if the land had been devised to the younger Son and the heirs of his body and if he dyed without issue living the elder that the elder should have the estate to him and his heirs it is clear that the younger hath an absolute estate tail and that then the remainder to the elder shall be on this contingency viz. If he be living when the younger dies without issue And so is Frenchmans Case 1 2. Eliz. who demised land to his wife for life the remainder to Charles Frenchman and the heirs males of his body and if he died without heirs males of his body the remainder to Arthur Frenchman and the heires males of his body Charles had issue a Daughter and died without issue male and it was adjudged that the Daughter should not have the land for this contingency does not alter the Estatetail that was first limited to Charles and although the Devise in the case at Bar be to the youngest Son and his Heirs without any limitation of his body yet the limitation afterwards to wit if he die without issue does explain well enough that the heires of his body are intended and then the subsequent words living the Eldest Son cannot alter the estate first given to the younger Son And Hil. 40. Eliz. in the Kings Bench by Walmesly If one deviseth land to his Son and his heirs and further deviseth that if he die without issue that the land shall be sold yet the Son shall have an estate in fee and not in tail but otherwise if he devised that if he died without issue that the lands should remain over for in the first case he disposeth of no more of the estate by the last words then he did at the first but in the last case he disposeth of the estate it self in remainder And this was agreed by Owen 18 19. Eliz. Rot. 354. and 15. 16. Eliz. Rot. 330. where the case was That one Edward Clark being seised in fee of two houses had issue Henry and two Daughters Alice and Thomasin Henry dyed before the two daughters living the Father the Father devised one house to his daughter Alice and her heirs for ever and the other to Thomasin who was at that time but eight years of age and her heirs for ever and if she died before the age of sixteen years Alice then living Alice should have it to her and heirs and if Alice should die having no issue living Thomasin Thomasin should have the house of Alice to her and her heirs and if both of them died without issue he devised the two houses to the two Daughters of his Son Henry and their heirs and if they died without issue he devised the remainder to a stranger Proviso That if Alice should marry I. S. that Thomasin should have her part to her and her heirs and if Thomasin should dye having no Child that the daughters of Henry should have all and if they died having no Child the remainder to a stranger as aforesaid The Devisor dies then Alice marries N. but not I. S. and enters into her house Thomasin after sixteen years of age dies without issue And if Alice or the daughters of Henry should have the estate of Thomasin was the question And it was holden by three Iustices that the daughters of Henry should have it because that Thomasin did not die within the age of sixteen years and that it being objected that there was no estate tail to any of the daughters but a fee simple conditionall upon a contingent it was at last adjudged 14. Eliz. Rot. 340. that they were Tenants in tail by this Devise in Mich. 37 38. Eliz. 42. Mich. 14 15. Eliz. And Michaelmas 18. Jacobi Judgment This Case was argued by Montague cheif Iustice Doderidge Haughton and Chamberlain who all agreed that by this Devise the youngest Son had not an Estate-tail but a limited see so that by his dying without issue living the elder Son his estate was quite determined and all except Doderidge agreed that the Recovery could not hurt the future Devise But Doderidge was much against this opinion by reason of great mischeif that might ensue by making of Perpetuities in Devises and cited Archers Case and Capels Case but notwithstanding Iudgment was affirmed as aforesaid De Termin Trinitat 18 Jacob. Rot. 1198. Dawtree against Dee and others IN an Action on the Case wherein the Plaintiff Declared That he the fifth of July 16 Jacobi was and is seised in Fee of a Capital Messuage called Moor-place with the appurtenances and of 600 Acres of Land meadow and pasture in Petworth with the said Messuage used of the annual value of 100 l. which Messuage he and those whose Estate he hath in the said Messuage and Tenements therein Farmors and Tenants have time out of minde used to keep good hospitality for the relieving of the Poor in Petworth aforesaid and that in the Church of Petworth aforesaid on the said fifth of July and also time out of minde there hath been and is a little Chancel on the North part of
any Lands Tenements or Hereditaments parcel of their Bishopricks or any charge or incumbrance out of the same or of any other thing in their disposition to binde their Successors except onely Leases for 21 years or three lives of such Lands Tenements and Hereditaments which have been usually demised or whereupon the usual Rents have been reserved according to the said Act. And although such Lease be made of such Lands usually demised reserving the usual Rent according to the said Statute yet unless all the limitations prescribed by the Statute of the 32 of Hen. 8. be not pursued as if it be not all in possession or that the old Lease be not expired or surrendred within one year which is not prohibited by the first of Eliz. as it was adjudged in Foxes Case then such Lease will not binde the Successor unless it be confirmed by the Dean and Chapter And such construction as aforesaid hath been made to disable a Bishop to make any Estate except Leases for 21 years or for three lives as is aforesaid as concerning the binding of the Successor as the Grant of the next avoydance by a Bishop to another although it be confirmed by the Dean and Chapter is restrained by the said Statute of Elizabeth to binde the Successor as it hath often been judged and the reason is because it is such an Hereditament whereon no Rent may be reserved for all in the Statute that is not permitted in the Exception is restrained as to the Successor by the general purview of the said Act but yet such Grant will binde the Bishop himself although the Statute says that it shall be voyd against all intents and purposes for the makers of the said Act did intend not onely the advancement of Religion but also increase of good Hospitality and avoyding dilapidations and ruine of the Church which the Successor if the Acts of his Predecessor should binde him were not able to remedy and therefore the makers of that Act did rather regard the Successor And these words in the Act viz. Parcel of the possessions of his Archbishoprick or Bishoprick or united belonging or appertaining to the said Archbishoprick or Bishoprick may be very aptly construed That the Gift of this Office and all other such like things that are belonging to the Archbishoprick or Bishoprick for although the Bishop cannot exercise this Office himself yet hath he an inheritance in the gift and disposing thereof and so it is adjudged in Cooks 8 Rep. Earl of Rutlands Case And these words Belonging to the Archbishoprick or Bishoprick shall be expounded for Concerning the Archbishoprick or Bishoprick And therefore if a Writ of Annuity be brought against a Bishop upon a title of prescription or otherwise and Iudgment be given against him upon Verdict or confession this is restrained by this Act because the Bishop is charged with this Annuity in respect of his Bishoprick and therefore the Successor shall be charged with the arrears incurred in the life of the Predecessor 21 H. 7. 4. 48 Ed. 3.26 33 H. 6. 44. and yet is not the Annuity issuing out of the Bishoprick as appears in the 10 H. 6. 10. and 10 Ed. 4. 10. But because this does concern the Bishoprick and does tend to the diminution of the revenues and the impoverishing of the revenues this is restrained by the said Act of the first of Eliz. And therefore to answer to the Objection Wherefore such an Office should be granted to one solely I answer and it was also agreed to by all the Court That if the Office be ancient and necessary the Grant thereof with the ancient fee is no diminution of the Revenue or dispoverishing the Successor and therefore of necessity such Grants are exempted out of the general restraint of the said Act of Elizabeth For as Bracton saith Illud quod alias licitum non est necessitas facit licitum necessitas inducit privilegium quod jure privatur And if Bishops have not power to grant such Offices of service and necessity for the life of the Grantees but that their estates shall depend on incertainties as on the death or transmutation of the Bishop then no able or sufficient persons will be willing to serve them in such Offices or at least will not discharge their Office with any cheerfulness or alacrity if they may not have such estate in certain for the term of their lives as their Predecessors had but when an ancient Office is granted to one it is not of necessity to grant the same to two and therefore such Grant is not exempted out of the general restraint of the Statute no more then if the Bishop should grant an Office with the ancient fee to one and then he grants the Reversion to another this is restrained by the Statute because it is not of necessity and if the Bishop may grant such Offices to two he may grant them without any limitation of lives and by consequence ad infinitum and so if he may grant a Reversion to one so he may to others also without any limitation and by the same reason he may grant them in Tail or in Fee which is quite contrary to the intention of the said Act. And of such opinion was Popham Chief Iustice Michaelm 44 45 Eliz. in Stumblers Case and Dyer 23 Eliz. 370. where Horn Bishop of Winchester did grant to Dr. Dale during his life a Rent out of the Mannor of Waltham pro concilio impendendo the Bishop dyed and because the Rent was arrear Dr. Dale brought an Action of Debt for the arrears incurred in his life against the Executors In which two points are to be observed 1. That the Grant was not voyd against the Bishop himself The other That although the Rent was issuing out of the possessions and not parcel this was voyd by his death And Trin. 30 Eliz. Rot. 346. in this Court The Bishop of Chester after the Statute of 1 Eliz. did grant to George Boulton an Annuity of five marks per annum pro concilio impenso impendendo which was confirmed by the Dean and Chapter and then the Bishop dyed and Boulton brought a Writ of Annuity against the Successor and in his Count did aver that the Predecessors of the said Bishop had granted reasonable Fees but did not aver that this Fee had been granted before and did aver that he was homo consiliarius in lege peritus and the Opinion of the Court was against the Plaintiff But there it was resolved that although the said Bishoprick was founded but of late times to wit in the time of Hen. the eight yet a Grant of an Office of necessity to one in possession with reasonable fees the reasonableness whereof is to be decided by the Court of Iustice wherein the same doth depend is good and is restrained out of the general words of the said Act. And in our Case the avowant hath averred this Office to be an ancient Office and which hath
of price every quarter twenty shillings Ad revendendum contra formam statuti c. And did aver that Stephen Bointon named in the first Information and Stephen Bointon named in the last Information are one person and not divers and that the said three hundred quarters of Barley and a hundred quarters of Beans specified in the last Information are parcell of the aforesaid Barly and Beans in the first Information Unde petit judicium of the said last Information the said first Information depending determinable Vpon which Plea Mr. Attorney demurred in Law And I conceive that Iudgment ought to be given for the King and the Informer for two reasons The offence in the first Information is alledged to be between the first of June 12. Jac. and the two and twentieth of May 13. Jac. so that for any thing appears to the contrary this may be done between the first of June 12. Jac. and twentieth of July next which is not any part of the time contained in the last Information and then that is no answer to the ingrossing between the twentieth of July 12. Jac. and the two and twentieth of May next unlesse he had averred in fact that it was within the time contained in the last information The twenty second of May 13. Jac. is not answered to at all and it may be that the Ingrosment was on that day for the plea of Not guilty goes only between the two and twentieth of May 13. Jac. and the fourth of July next and the last information is between the first of June 12. Jac. and the twenty second of May so that the twenty second of May is utterly excluded and that is part of the time contained in the last information The first Information is for ingrossing of Beans and Pease being a mixt Grain and the last Information is for Beans only and Beans by themselves cannot be parcel of Beans and Pease being a mixt Graine And after Iudgment was given for the King and the Informer Judgment and that principally for the second exception Michalm 14. Jacob. Frosett against Walshe IN an Ejectment of one Messuage ten acres of Land six of Meadow and thirty of Pasture in Mansell Lacy upon a Lease made by Hen Hering the younger the twenty fourth of October 13. Jac. to have from the twenty third of October last past unto the twenty second of October next c. The Defendant pleaded not guilty And the Iury found that the said Tenements were Copyhold parcell of the Mannor of Mansell Lacy devisable in Fee and that there is a Custome within the said Mannor that every customary Tenant of the said Mannor of any Inheritance may surrender the said Tenements out of Court into the hands of two customary Tenants of the aforesaid Mannor to the use of any person or persons and their Heirs and that the said surrender by the Custome of the said Mannor ought to be presented at the next Court to be holden within the said Mannor otherwise the surrender to be void And they found that one Thomas Herring was seised in Fee at the will of the Lord according to the custome of the Mannor of the said Tenements and that he and Anne his Wife the twenty second of Decemb. the 28. of Eliz. at Mansell aforesaid did surrender the said Tenements out of Court into the hands of William Garrows and Hugh Ireland then being two customary Tenants of the said Mannor to the use of Rowland Whittington George Whittington and Robert Whittington and their Heirs and that the said Rowland George and Robert by vertue of the said surrender did enter into the said Tenements and held the same and paid the Rents thereof that were due to the Lord and that the said Thomas Herring before the Ejectment died and that no Court was holden within the said Mannor during his life nor ever since and that the said Rowland Whittington afterwards and before the Ejectment died and the said William Garnar and Hugh Ireton also died before the Ejectment and that the said Henry Herring is the Son and Heir of the said Thomas Herring and that the said Henry the twenty fourth of October the 13. Jac. did enter and made the Lease to the Plaintiff who did enter and was possest untill the Defendant as Servant of the said Rowland and Robert Whittington the twenty sixth of October the same year did enter and oust the Plaintiff And if it seemed to the Court that the Defendant was guilty the Iury found for the Plaintiff and if otherwise for the Defendant And I conceive that Iudgment ought to be given for the Plaintiff The Custome is precisely found that the surrender which is made out of Court is good so it be presented at the next Court so that here is a perfect assurance made according to the custome of the Mannor which the Copyholder that surrenders cannot avoid unlesse something fall out afterward that may avoid the surrender for as to the Cases that have been put by the other side that every Custome shall be taken strictly and therefore the custome of Rent that saves the Land of him that is hanged for Felony does not extend to an Attainder by Outlawry nor the custome that an Infant of the age of fifteen years may make a Feoffment does not warrant a Lease and Release I agree all these to be Law but I cannot conceive how any of them can be applyed to the present question for I do not endeavour to extend this custome in any point beyond the true expresse Letter of the custome viz. That the surrender shall be good if it be presented at the next Court. Object 1 But there have been two things objected to impeach this surrender That Herring who made the surrender is dead And as to that I conceive that the surrender is good notwithstanding for every Copyholder of Inheritance hath as good power to dispose of his land according to the Custome as a Tenant in Fee-sipmple hath by the Rules of the Common-law for although he that comes in by surrender ought to be admitted by the Lord yet all the Estate passeth from the Copyholder who surrenders and the Lord is but an instrument to make the admittance and he gives not the Estate and therefore it follows that the Estate is given by the Copyholder himself Cooks Rep. 4. Charls Pennifathers Case That Copyholders derive not their Estates from the Estate of the Lord and therefore if a Disseisor or Tenant at sufferance do make an admittance upon a surrender or upon a descent this shall binde the Disseisee and if Tenant for years of a Mannor or a Tenant at will does make a voluntary Grant according to the custom this shall binde him in the Reversion and the same Law of a Feoffee upon Condition Dyer 342. And so if there be Lord of a Mannor wherein are Copyholds for life and the Lord marries and grants Copies the Wife shall not avoyd this 9 Rep. Swans Case and 4 Rep.
in Bar to wit the Fine with proclamations pleaded by Mary Taylor and the warranty pleaded by Robert Leigh and 28 others of the Ter-tenants or by any of these pleas or not And as to the first If he in remainder depending upon an estate in Tayl may maintain a Writ of Error to reverse a Recovery against the first Tenant in Tayl after his death without issue And I conceive clearly that he in the remainder shall have a Writ of Error for the Writ of Error doth always pursue the nature of the Land and not the privity of the blood And therefore 5 H. 8. the Writ of Error shall go with the Land and therefore the Heir in special tayl shall have it although there be another Heir at the Common-Law And so in Fitz Herb. N. B. 21 K. He who is Heir to the Land that is lost shall have a Writ of Error and not the Heir at Common-Law as if Land in Borough-English be lost by erroneous Iudgment the younger Son shall have a Writ of Error and 3 H. 4. 19. The Heir in special tail shal have the Writ of Error although there be another Heir at the Common Law And 1 Mariae Dyer 90. Verneys Case The Writ of Error shall be brought by him who had the thing whereon erroneous Iudgment was given And as the especial Heir shall have the Writ of Error so shall he also in remainder or reversion upon an Estate for life after the death of the Tenant for life 4 H. 8. 21 H. 6. 29. But the sole Objection that hath any coulor against this was Object that this Writ of Error ought to be given to him in remainder by the Common-Law for it is not given by the Statâ—te of the 9th of Rich. 2. and then there can be no remainder upon an Estate tail at the Common-Law and therefore he in such remainder cannot have any Writ of Error But this is easily answered for the Common-Law being Answer that when an erroneous Recovery is had against a pâ—rticular Tenant that he in the Reversion or Remainder shall have a Writ of Error after the determination of the particular Estate it follows that when this new particular Estate is made by the Statute of Westm 2. he in the remainder shall have the same remedy And this is proved by the case of the Tenant in Tayl for although that his Estate was not at the Common-Law yet now he shall have all Actions which the Common-Law gives to a Tenant in fee which may stand with his Estate and therefore he shall have a Writ of Escheat a Quod permittat Nat. B. 124. 4 Ed. 5. 48. Nat. B. 212. and so he shall have an Assize and many other Writs which lie for a Tenant in fee at the Common-Law And for Authorities in this point Dyer 188. That he in the remainder after the Estate-tail spent shall have a Writ of Error and so is it in Dyer 40. in Verneys Case And in the 3 Rep. fol. 3. B. if is resolved that he who hath a remainder expectant upon an Estate in Tayl shall have a Writ of Error upon a Iudgment given against the Tenant in Tayl although there were no such remainder at the Common-Law for when the Statute de Donis Conditionalibus does enable the Donor to limit a remainder upon the Estate-tail all actions which the Common-Law doth give to the privies in Estate are by the same act as incidents tacitly given also according to the rule of the Common-Law and therefore as he in Reversion or Remainder upon an Estate for life shall have a Writ of Error by the Common-Law upon a Iudgment given against a Tenant for life although that they were not parties by Hyde Pryer Voucher c. so since the Statute de Donis conditionalibus shall he have who hath a Reversion or Remainder expectant upon an Estate in Tayl. And therefore I conceive the Writ of Error is good notwithstanding that Objection But now it is to be considered if this Plea of non-tenure shall avoyd the Writ of Error and I conceive it will not for three Reasons 1. I conceive that it is no plea to abate the Writ for the Plaintiffs might have reversed the Recovery against the Lessors of the Reversion onely without having made the Ter-tenants parties for the Writ of Error being grounded upon the Recovery does always lie against the parties to the Iudgment and their Heirs and may be reversed against them although they have nothing in the Land and this is clear by Nat. Brev. 107. and 26 Assis 12. A Writ of Error does lie against him who recovers and after the Error found a Scire facias shall issue against the Tenant and 42 Assis 22. and 44 Ed. 3. and 10 Ed. 4. 13. Non-tenure is no plea in a Writ of Error for the party to the Iudgment or his Heir And here in this case if those who have pleaded Non-tenure are not Tenants they are at no loss for they can lose nothing but this plea does discharge themselves onely and the Scire facias remains good against the Heirs and the other Ter-tenants 2. If Non-tenure could be a good Plea for the Ter-tenants in a Scire facias yet at the least it ought to be in such a Scire facias wherein the Ter-tenants are named and not in such a general Writ as this is For here the Plaintiffs have pursued their Scire facias in as good a form as may be viz. generally against the Heirs and the Ter-tenants and if there be any default it is in the Sheriff who hath returned those to be Tenants who indeed are not so and it shall be very hard if the Writ should abate for default of the Sheriff 20 Ed. 3. Scir facias 121. In a Scire facias on a Recognizance against the Ter-tenants it was said that one of them that ware warned had but a Lease for years of such a one who had the Freehold Iudgment of the Writ c. And there Birton said That the Sheriff had a general command to warn the Ter-tenants wherefore this is no Plea to the Writ And Hill and Wilby answered that it was otherwise for that the Plaintiffs at their peril should name the Ter-tenants in their Writ whereupon there was a new Writ Whereupon I observe that if the Writ be special naming the Ter-tenants as it was anciently then it ought to be so but of late such course hath been changed as appears by the 8 of H. 4. 18. and the Writ awarded generally and therefore such special Non-tenure shall be a good Plea for it is the default of the Plaintiff to pursue his Writ against one who is not Tenant but when the Writ is general Non-tenure is no Plea to the abatement of the Writ 48 Ed. 3 15. 8 H. 18. 48 Assis 2. and the 2 H. 4. 18. B. In a Writ of Account against the Sheriff of Northumberland of a Receit in Newcastle upon Tine and it was pleaded that Newcastle was
of age or not 29 Assise 67. In an Assise against Husband and Wife the Husband did answer as Tenant and the Wife would not but the Husband said that his Wife was within age and that she was taken away but did not say by whom and he did appear for himself and his Wife as her Guardian and pleaded in Bar and one of the Counsell said that the Wife had made default which is the default of the Husband and because that he answered as Guardian without Warranty by Record in this Court to do the same Iudgment c. And there Thoâ—â— said that he ought to have a Warranty in such case wherefore the Assise was awarded 35 H. 8. 56. In a Writ of Right by the Husband and Wife the wife being within age and she appeared by her next of Kin and was admitted by the Court. New Book of Entries 256. In a writ of Error to reverse a Fine by Maurice Pierce and Joane his wife and John Pierce and Elizab. his wife the three first appeared in person and Elizabeth being within age by one Laurence Gibson her Guardian and admitted by the Court. And so in this Case forasmuch as the Land is the Inheritance of the wife which is demanded which she will lose by this Recovery she ought to appear by her Guardian notwithstanding the full age of the husband who is joyned only for form sake with his wife 30 31 Eli. Morseby against Charnock The husband and wife levied a Fine and after this was reversed by Error because that the wife was within age the husband shall not have the Land for all the Estate passeth from the wife and the husband joyned only for conformity Coke 2. Rep. Cromwels and Beckwiths Case But it may be objected also Object that this Error concerning the nonage of the wife is so appropriated to her person in privity that no stranger can take any advantage thereof I conceive not so Answer for the constituting of an Attorney is utterly void as to the wife and therefore every stranger shall take advantage there as is not like the Case where an Infant makes a Feoffment which is but voidable and therefore the Lord by escheat nor any stranger shall not avoid it 22 H. 6. 31. The Plaintiffs within age did sue by an Attorney and there it was ruled that the Defendants might have a Writ of Error and placit 37. Eliz. Rot. 253. Bartholomew brought a Writ of Error against Dighton for that Dighton recovered against him in an Action of false Imprisonment in which he being within age did sue by an Attorney and adjudged that Iudgment should be reversed And this Case is not to be resembled to the Case of a Fine levied by an Infant which cannot be reversed by any but by the Infant himself and the same Law is of a Recognizance by an Infant and the reason of these Cases is because it is the Act of the Court to admit him to levy a Fine or to acknowledge a Recognizance and therefore this ought to be reformed by the Court and that must be by inspection of the Infant and therefore it ought to be done during nonage But the nonage in this Case ought to be tryed per pais as it was adjudged in the said cases of Bartholomew and Dighton and the case of Hobbs in which case the Infant was brought to the Bar to be inspected but adjudged by the Court that it should not be so because the matter was tryable per pais and 10. Rep Mary Portingtons case A common Recovery against an Infant although he appears by his Guardian shall not bind him for an Infant hath not such a disposing power of his Land as the Husbands wife have but is utterly disabled by the Law to transfer or convey his Inheritance or Freehold to others during his minority And of late daies a common Recovery does appear to be a common conveyance and assurance of Land The third part of the Case is If the two matters pleaded in Bar of Part. 3 the Writ of Error or any of them be sufficient or not I conceive not And first as to the Fine with Proclamations levied before the Recovery had which is the Plea of Mary Taylor one of the Ter-tenants I conceive that it is utterly insufficient as well for the manner as the matter of the Plea for she hath disabled her self to plead this Plea for she sets forth that the twentieth of May 31 Eliz. Thomas Leigh and Katherine his wife did let to the said Mary a Cottage and three acres of Land parcell of the Tenements expressed in the Fine and Recovery for life but doth not shew in what Town the said Cottage and three acres do lye wherefore the Plea is altogether uncertaine and insufficient for the Tenements in the Recovery do lye in two Towns viz. In Alkington and Prestwick and it doth not appear by this Plea in which of these the Cottage and three acres do lye 5 Ed. 4. 116. b. In a Formedon in Discender of a house and forty acres of Land and six of Wood in three Towns and the Issue being to be tryed the Tenant said that the Demandant had entred into the house and thirty acres of Land and three of wood And by the Court the Plea was naught because it did not appear in which Town the Entry was And in Moore and Hoskins case in the Exchequer 8 Jacob. In an Ejectment of Land in Overkiddington and Netherkiddington the Defendant pleaded not guilty and when the Issue came to be tryed by Nisi prius in the County of Oxon the Defendant pleaded an Entry of the Plaintiff in three acres of the Land contained in the Declaration since the last Declaration whereupon the Plaintiff demurred and adjudged that the Plea was insufficient and thereupon the Plaintiff had Iudgment to recover Secondly for the matter this Fine being precedent to the Recovery whereby the cause of this Action is given cannot extinguish it for it is a Rule in Law that one cannot give or grant that which one hath not 22 H. 7. Kelway 84. If the eldest Son in the life-time of his Father infeoffs another it is void as to bind the Land and Littleton Releases 106. These words in a Release Quae quo vis modo in futuro habere potero are void in Law for no Right doth passe but only the Right which the Releasor had at the time of the Release as if the Son release to the Disseisor of his Father all the right which he hath or may have and the Father dye the Son may enter because that he had no right in the life of his Father but only a descent to him after the Release by the death of his Father 13 Ed. 1. 10 Ed. 2. and 4 H. 7. cap. 24. It is enacted that Fines with Proclamations shall conclude as well Privies as Strangers saving to the strangers such right claim and interest as they had at the time ingrossed so as they
James of a house in the Parish of St. Mary Abchurch in the Ward of Candlewick-street Habendum from Michaelm last past for three years and layd the Ejectment to be the 28 Octob. in the same year The Defendant pleaded Not guilty And the Iury found that William Say was seised in Fee of the said Messuage and of two other Messuages in the Parish of St. Johns in Walbrook London and held them in Socage And that the 8 Octob. 1562. the said William having issue Francis his Son and Margaret Agnes and Alice by his Will in writing did devise the said Messuage in these words I bequeath to Francis my Son all my three Houses after the death of my Wife Barbara and his Mother and if Margaret Agnes and Alice and either of them do out-live their Mother and their Brother Francis and his Heirs then they to enjoy the three Houses for their lives and the three Houses then I give freely to my Sisters Sons Iohn Wittinbury and Roger Wittinbury and they to pay unto the Wardens of the Batchelors Company of the Merchant-Taylors 6 l. 10 s. yearly to be given to the poor and needy Brethren of the same Company for ever and if the said Iohn and Roger and their Successors do deny the said payment of 6 l. 10 s. it shall be lawful that the said Wardens to enter into the three Houses and to discharge them for ever William Say the Devisor dyes Barbara enters Francis Agnes and Alice dye without issue Barbara dyes Margaret enters John Wittinbury dyes without issue Roger Wittinbury dyes without issue and the Lessor is Cosin and Heir to him viz. Son of Margaret Pierson Sister of the said Roger. The 18 of August 13 Jacob. Margaret dyed seised having issue John Savage her Son and Heir who entered which Son the 17 February 13 Jacob. did infeoff Edward Jackson in Fee who the second of September 13 Jacob did infeoff Richard Slydhurst in Fee who the third of September 13 Jacob. did make the Lease to the Defendant for four years who entered upon whom the Lessor did enter and made the Lease to the Plaintiff upon whom the Defendant did enter And prayed the Opinion of the Court c. And I conceive Iudgment ought to be given for the Defendant But first as to the Question that hath been made scil What Estate John and Roger Wittingbury shall take if they shall take any Estate at all by this Will I shall not argue for I agree that if they have any Estate it is a Fee-simple in respect of the continual and perpetual charge imposed upon them for the payment of 6 l. 10 s. to the Wardens c. for that is to have a perpetual continuance in respect of the persons to whom it is to be payd scil the Poor And also the persons to pay are the two Wittingburies and their successors who in the Exposition of the Will shall be taken for their Heirs and Assigns and also in respect of the limitation of the payment scil for ever which in a Will makes a Fee-simple and â—â—â—â—s much as the charge is to continue for ever it follows also that the Estate ought to continue for without the Estate the charge cannot be But I conceive that John and Roger shall take nothing by this will or at least that they shall take but a future Estate to begin after the death of Francis without Heir and then their time will never come for John Savage under whom the Defendant doth derive his Estate is Heire to Francis and therefore the Plaintiff nor his Lessor being Heire to Robert Wittingb the Survivor cannot have this house And to prove this here is an Estate limited by expresse words to Francis and his Heirs and no apparent intent by the Devisor that the word Heirs shall be restrained to the Heirs of his body unlesse by reason of the limitation of the Remainders afterwards which cannot be as hath been said if Francis had a Fee-simple But as to this I say that the same reason may be given when a man deviseth Land to A. and his Heires and if he die without Heire that it shall remain to B. and his Heires in which case if the Devise to A. shall be restrained to an Estate in Taile the Remainder to be is good but no such intent can be collected against expresse words and therefore the Remainder is utterly void as in 19 H. 8. 8. B. where the Rule is given that when the intent of the Testator does not agree with the Law his intent shall be void and this is a certain Rule And West 2. cap. 1. where it is provided Quod voluntas donatoris observetur yet it ought alwaies to agree with the Rules of Law as is proved by the 8. Assise 33. where was a Gift in Taile to two and if one dies that the Survivor shall have all to him and the heirs of his body now doth the Law say that they have severall Inheritances but the will of the Donor was that the Survivor should have all which being repugnant to the Rule of Law was adjudged to be a void Clause 35 H. 8. 6. Estates 75. Estates given to the husband and wife for their lives the Remainder to the heires of their bodies is an Estate-taile executed notwithstanding the expresse will of the Donor because an Estate for life and of Inheritance cannot be distinct in one and the same person without a mean Estate in another So that in Wills if the intent be against Law they are void And so is it if the intent be ambiguous and not manifestly to be collected out of the words of the Will And in our Case no manifest intent does appear to make the Estate of Francis an Estate in Tail Câ—ke 6. Rep. Wildes Case One devised land to A. for life the Remainder to B. in Taile the Remainder to R. and his wife and after their deaths to their Children who then had two Children the Devisor dies and A. dies and B. dies without Issue and and it was adjudged that the Children of R. and his wife should have only an Estate for life because that by Iudgment of Law they have but an Estate for life and if R. and his wife should have an Estate in Taile it ought to be by the intent of the Devisor which intent ought to be manifest and certain and so expressed in the Will and in this case no such intent does appear for perhaps his intent was to accord with the Rule of Law 15 16 Eliz. 9. a. A. having three Houses having three Sons and a Daughter did devise to B. his first Son a House paying ten pounds to his Sister and he to enter after the death of the wife of the Devisor and did devise to his second Son another Houses paying to the Daughter ten pounds and he to enter at the age of one and twenty years and did devise the third House to the third Son paying ten pounds to his
an Action of Debt for forty pounds upon the Statute of 2 Edw. 6. For that the Plaintiff is and was for two years past Rector of Bifeild and the Defendant the first of October 12 Jacob. was Occupier of eighteen acres of Land and thirty of Pasture in Bifeild aforesaid and did continue the occupation thereof for a yeare after and the first of Septemb. the 13 Jacob. did mow and reap the Hay growing upon the Meadow and the Grain viz. Barley Wheat Pease Beans and Oates growing upon the Land and the same day did take and carry them away without setting out the Tithes or agreeing with the Plaintiff for them and did aver the value of the Tithes to be thirteen pounds six shillings eight pence The Defendant pleaded Non debet The Iury found that King Henry the eighth was seised in Fee of the Advowson of Bifeild and the five and twentieth of April 34 H. 8. the King granted the same to Sir Edward Knightly and Ursula his wife and to the Heirs Males of the body of Sir Edmund the remainder to Valentine Knightley his brother and the heires males of his body the Remainder to the right heires of Sir Richard Knightley then dead Father of the said Sir Edmund Sir Edmund died seised without Issue Ursula did surrender to Valentine and the fifth of September 4 5 Phil. Mar. Valentine did give and grant the Advowson to Sir John Spencer and others and their heires to the use of himself for the life of Ursula and after the decease of which of them should first die to the use of Richard Knightley his Son and Mary his wife and the heires males of the body of Richard the Remainder to the right heires of Sir Richard Father of Valentine That the twentieth of Febr. 6 Eliz. William Briggs Rector of Bifeild by Indenture did let the Rectory to the said Richard Knightley habendum from the next Annunciation for sixty one yeares rendring 28. pounds Rent And that the twenty fourth of Febr. 6 Eliz. Valentine Knightley did confirm the Lease and the last day of February in the same year the Bishop of Peterborow being ordinary did confirm it That the thirtieth of July in the same year Richard Knightley did grant the Lease to Edward Knightley his second Son and afterwards recovered the profits to the use of Edward being within age That the eighth of May 8 Eliz. Valentine died seised of the Advowson having Issue the said Richard his eldest Son William Briggs did recover the Rent during his life and dies whereby Richard Knightley does present William Reynolds who was admitted instituted and inducted Reynolds did resigne whereupon Richard Knightley did present Richard Burdsale who was admitted c. and Burdsale did resigne wherefore Richard Knightley did present Simon Rogers who was admitted c. And they found that all these persons did accept the Rent And that the first of Septemb. 21 Eliz. Richard Knightley did take the profits to the use of Edward and did devise the Rectory to Rogers the Parson for forty years if he should be so long Parson there That the thirteenth of Novemb. 27 Eliz. Sir Richard Knightley did grant the Advowson to Valentine his Son in Fee That the 34 of Eliz. A Fine was levied between Bartholomew Tate and Henry Yelverton Esquires Plaintiffs and Valentine Knightley Esquire Deforceator of the said Advowson Sur conusans de droit come ceo with Warranty to the use of the Conusees and their heirs Rogers did resigne whereupon the said Valentine did present Jonas Challoner who afterwards died and the Ordinary did present the Plaintiff by Laps who did accept the Rent for divers years And they found the carrying away of the Tithes and to the value of ten pounds And prayed the opinion of the Court upon the whole matter whether the Defendant owed the thirty pound to the Plaintiff or not Vpon which Verdict the case is this Valentine Knightley seised of an Advowson in Taile to him and the Heirs males of his body the Remainder to the right Heirs of Sir Richard Knightley his Father then dead the 4 5 of Philip and Mary did give and grant the Advowson in Fee to the use of himself for the life of Ursula Knightley the Remainder to Richard his Son and Mary his wife and the heirs males of the body of Richard the Remainder to the right heirs of the said Sir Richard the Father The twentieth of February 6 Eliz. William Briggs the Incumbent does make a Lease of the Rectory by Indenture to Richard the Son for sixty one years from the Annunciation next c. rendring twenty eight pounds Rent And the twenty fourth of Febr. 6 Eliz. Valentine Knightley does confirm the Lease and the last of February in the same year the Ordinary confirms it The thirtieth of July in the same year Richard the Lessee grants the Term to Edward Knightley his second Son within age and takes the profits to his use And the 8. of Eliz. Valentine dies Richard being his eldest Son William Briggs dies whereby Sir Richard does present William Reynolds who was admitted c. And he did resigne whereby Sir Richard did present Burdsale c. who did resigne c. whereby he presented Rogers and all these persons did receive the Rent And the 21 Eliz. Sir Richard did make a Lease of the Rectory to Rogers the Parson for forty yeares if he shall be there Parson so long 27 Eliz. Sir Richard grants the Advowson to Valentine his Son in fee and 34 Eliz. A Fine was levied of the Advowson between Bartholomew Tate and Henry Yelverton Plaintiffs and Valentine Knightley Deforceator to the use of the Conusees and their heirs Rogers did resigne whereby the said Valentine did present John Challoner c. who died and the Ordinary collated the Plaintiff by Laps who for many years accepted the Rent and the Defendant did take and carry the Tithes to the value of ten pounds And whether this Lease be good to bind the Plaintiff or not is the question and I conceive it is not And for the arguing of this Case I will consider these three things The Validity of the Lease without any confirmation If here be any confirmation of this Lease and if it continues in force against the now Plaintiff Admitting here be not any sufficient confirmation of it self if the Fine levied by Valentine Knightley hath given any force and strength to it And as to the first I conceive without any doubt that this Lease without any confirmation is determined by the death of the person who made it and is so determined as no acceptance of Rent by the Successor can make it good and therefore the difference is between a Lease for life and a Lease for years made by a person rendring Rent for the Lease for life is only voidable and not void by the death of the Lessor so that if the Successor does accept the Rent and Fealty he shall be bound for his
profits thereof as in Colliers Case 6 Rep. where one devised Land to his Wife and with the profits that she should bring up his Daughter and that after her death the Estate should remain to his Brother paying to other persons 40 s. and the value of the Land was 3 l. per annum and agreed there that the Brother had a Fee-simple and this diversity was resolved in that case That if the Devise had been to the Brother to the intent that he should maintain his Daughter with the profits or pay out of the profits thereof so much to one and so much to another that this is but an Estate for life for he is sure to have no loss so is it if it be to pay certain sums yearly under the value of the Land for he may pay it out of the profits and is sure to be no loser And this is in effect our very case For first the Charge is imposed for Dower which cannot be intended to exceed the annual value of the Land Secondly it is to be payd out of the Land and therefore there is no charge imposed upon the person of the Devisee but onely upon the Land devised to him so that he takes the Land with this charge and when his Estate determines in the Land yet the charge does always remain upon the Land and the Devisee is discharged thereof and therefore this charge may as well be if he have an Estate for life as if he have a Fee-simple And as to that in Borastons Case 3 Rep. fo 20. b. between W. Allock and Hammond where a Copyholder devised his Land paying to his Daughter and to each of his younger Sons 40 s. within two years after his death and surrendered accordingly and dyed and agreed that the Devisee had an Estate in Fee although the annual profits exceeded the mony that was to be payd and the Reason is plain for it is not limited to be payd out of â—â—e Land or profits but is a payment in gross and it may happen that the Devisee may dye before he can receive so much of the profits And afterwards viz. Trinit 17 Jacob. All the Barons scil Tanfield Bromley and Denham delivered their Opinions severally That Henry and Michael Lock had an Estate onely for their lives because there is no express words in the Devise to make any greater Estate to pass and the condition or clause of the charge imposed by the Wtill does not necessarily imply that they should have a greater Estae then for life for such Estate may satisfie both these clauses as well as an Estate in Fee and the condition is more proper to be annext to an Estate for life then in Fee Judgment Wherefore they resolved That Iudgment should be given for the Plaintiffs but because Sir Thomas Muschamp one of the Plaintiffs dyed hanging the Action no Iudgment could be enter'd Trinit 16 Jacob. Wood against Searl and Jeo IN an Action of Trespass for that the Defendants the 16 of December 15 Jacob. ten Hides of Leather of the Plaintiffs amounting to the value of 10 l. at Tiverton did take and carry away ad damnum 20 l. c. The Defendants as to the force and arms pleaded Not guilty and as to the residue they said that the City of Exeter is and time out of minde was an ancient City and that within the said City there is and for all the said time was a Society of the Art of Cordwainers incorporate by the name of The Master Assistants Wardens and Commonalty of Cordwainers of the City of Exeter and that the said Master Assistants and Wardens have used for all the said time to make By-laws for the government and profit of the said Society and to impose reasonable Fines and punishments upon the breakers thereof And that the 24 of July 44 Elizab. the Master Assistants and Wardens did ordain That no person Burgess or Foreigner not being a Brother of the said Society should make sell or offer to sell or procure to be sold within the aforesaid City of Exon the County or liberty thereof any Boots Shooes Pantofles Pumps or Startops or any other wares belonging to the said Art under pain of forfeiting to the said Master and Wardens for the time being for every offence such sum not exceeding 40 s. as shall be assessed by the Master Wardens and Assistants or the greater part of them and that if any person of the said Society or any other exercising the said Art or any thing concerning the same inhabiting within the said City or the County or liberty of the same who shall break the said Order shall refuse to pay such sum as shall be assessed upon true proof first thereof had of the breach of the said Order that it shall be lawful for the said Master Assistants and Wardens or any three of them taking with them a Constable Bayliff or Serjeant of the Mace or other fit Officer of the Kings to enter into the House Booth Shop Warehouse or Cellar of such person so refusing and there by the discretion of the said Master Assistants and Wardens or the greater part of them to distrain any of their goods then being within the said Houses c. for the said sums forfeited so that it doth not exceed the treble value of the sums forfeited and to detain the same Yet nevertheless if the owner within thirty days shall satisfie the penalty then they shall redeliver the goods And if he doth not satisfie that then the said Master Wardens and Assistants or the greater part of them have power to appraise the goods taken by the oath of six persons and thereupon to sell them and to restore the surplussage to the owner And the Defendants said That at the said time in which c. and time out of minde there was and ought to be a Master two Wardens and twelve Assistants of the said Society within the said City and no more and that the said Edward the sixth of December and before and ever since was Master and the said William and Thomas Payn were Wardens That the 29 of July 15 Jacob. the Plaintiff at the said City then being an Inhabitant within the said City and no Brother of the said Society did make divers Shooes and them there to sale did expose and that the said Master and Wardens and one J. G. T. K. R. J. W. T. K. T. C.G. and J. G. being seven and the major part of the said Assistants the thirtieth of July the 15 Jacob. did impose upon the Plaintiff 33 s. 4. d. for the said offence And they said further that the Plaintiff committed the like offence the seventh of October 15 Jacob. and 33 s. 4 d. imposed by the Master Wardens and Assistants and the like offence the 20 of Novemb. 15 Jacob. and 33 s. 4 d. imposed by the Master Wardens and eight of the Assistants and the like offence the second of December 15 Jacob. and 33 s. 4