word extends to no other than Webbs Bargains Body to his Son Francis and that Margaret should have it for Life Cann dies the Meadow was not one of Webb's Bargains Thomas had Issue Thomas the Lessor of the Plaintiff Henry made a Feoffment in Fée to A. and B. to the use of himself and his Wife and to the Heirs of their two Bodies Remainder to his own right Heirs with Warranty against all persons and died without Issue the Lessor of the Plaintiff enters being his Cousin and Heir and of full age when Henry died In this Case it was held that if it had béen found that Margaret had an Estate for Life and that Henry entred in her Life time that it had beén then a Warranty commenced by Disseisin and would not have bound Thomas the Reversioner But as it was those two Iudges held it no Barr because the Warranty began with the Feoffment to uses and Henry being himself the Feoffeé it returned instantly to him and was extinct as to the Reversion because that was revested in him in Fée and therefore they held he could have no benefit either by Voucher or Rebutter it being destroyed at the same time it was created But Berkly and Richardson Iustices held that quoad the Estate of Henry's Wife the Warranty had a Continuance and the ground of the contrary opinion might be because Iustice Jones said there was no such Resolution as is mentioned to be the fourth in Lincoln Colledge Case yet he affirmeth that very Resolution in his own Reports fol. 199. There is a Clause in the * 27 H. 8. c 10. Statute of Vses difficult to be understood by which 't is Enacted That every Cestuy que use may take such Advantage of vouching c. as the Feoffees themselves might so that Cestuy que use have the Estate executed in him before the first day of May 1536. which was a year after the making that Statute so that the Clause seems to be exclusive of all others who shall come in afterwards Answ But he supposed the Intention of the Law Makers to be That there should be no more Conveyances to Vses But because they presumed that at first Men might not know of it therefore lest the Parties should be any ways prejudiced they gave liberty till such a time to Vouch or Rebutt within which time they might have some knowledge of the Statute and then it was supposed they would make no more Limitations to Vses But though they imagined them to be left expiring yet they revived Since then the Parliament gave leave to Vouch or Rebutt whilst they could in reason think there would be any Conveyance to Vses 't is but reasonable whilst they do continue that the Parties should Rebutt especially since most Conveyances at this day are made to Vses Windham Iustice accord in omnibus and so Iudgment was given as aforesaid Anonymus DOwer The Tenant pleads That a Lease was made by the Husband for 99 years before any title of Dower did accrue which Lease was yet in being and shews that the Lessor afterwards granted the Reversion to J. S. and died and that J. S. devised to the Tenant for Life The Demandant replies That the Lessor made a Feoffment in Fee absque hoc that the Reversion was granted prout c. The Tenant Demurrs Newdigate Serjeant for the Demandant argued That the Plea was not good to which he tooke several Execeptions 1. Except The Tenant by his Plea confesseth That the Demandant ought to have Iudgment of the Reversion expectant upon the Lease for 99 years de tertia but doth not say parte 2. Except Here is the Grant of a Reversion pleaded and 't is not hic in Curia prolat ' Then for the Matter as 't is pleaded 't is not good He agreed if Dower be brought against Lessee for years he may discharge himself by pleading the continuance of his Lease during which time the Demandant can have no Execution but here the Tenant is no ways concerned in the Lease 't is Littleton's Case None shall take advantage of a Release but he who is party or privy and therefore the Lessee in this Case being party might have pleaded this but the Tenant is altogether a Stranger Before the Statute of Gloucester cap 11. If the Demandant had recovered in a real Action against the Tenant the Termor had been bound because at the Common Law no body could falsifie the Recovery of a Free-hold but he who had a Free-hold himself this Statute prevents that Mischief and Enacts That the Termor shall be received before Judgment to defend the Right of his Term upon the default of the Tenant and though the Iudgment cannot be hindred thereby yet Execution shall be suspended during the Term and therefore in Dyer 263. b. The Lady Arundel brought Dower against the Earl of Pembroke who made default and before Iudgment the Termor prays to be received upon this Statute and pleads a Lease made by the Husband after Coverture which was assigned to him and that Dower de tertia parte of the Rent of this Lease was assigned to the Demandant by the Court of Augmentations which was afterwards confirmed by Letters Patents that she accepted it and concludes That the Plea of the Tenant was by Collusion between him and her to make him lose his Term And this was held ill for the Reason given by my Lord * Hob 316. Not for that reason but because that Court could not assign Dower and so the Letters Patents of Confirmation could not make that good which was void before Hobart That it is absurd to admit two Persons to dispute the Interest of a third Man But whether the Traverse is good or not if the Plea is naught Iudgment ought to be given for the Demandant Jones Serjeant contra The Pleading is well enough 1. The Tenant confesseth That the Demandant ought to have Iudgment of the Reversion de tertia which is well enough omitting the word parte because he claims a third part of such Tenements and the Tenant confesses she ought to have Iudgment which is full enough if the words de tertia parte were wholly omitted 2. He agreed That whoever Claims under a Deed must shew it but the Tenant in this Case did not defend himself by any Title from the Deed for the substance of the Plea which secured him was That a Lease of 99 years was in being and by his alledging the Devise of an Estate to him for Life made by the Grantee of the Reversion he did but allow the Demandant's Writ to be true which mentions him as Tenant of the Free-hold Then for the Matter of the Plea he says it was good and that the Tenant might well plead the Lease for years By the * 3 Inst 32. b. Statute of Merton Damages are given in Dower where the Husband died seised which he did in this Case but yet no Damages ought to be paid here but for the third part
Authorities with great exactness and nicety yet this Matter of Livery upon Endorsements of Writing was always favourably expounded of later times unless where it plainly appeared that the Authority was not pursued at all Sid. 428. as if a Letter of Attorney be made to thrée joyntly and severally two cannot execute it because they are not the Parties delegated they do not agreé with the Authority And Iudgment was given accordingly Richards versus Sely. THIS was a Special Verdict in Ejectione firmae for Lands in the County of Cornwal The Case was this viz. Covenant made to enjoy a Copy-hold de anno in annum 't is a Lease and so a Forfeiture Thomas Sely was seised of the Lands in question for life according the Custom of the Mannor of P. and he together with one Peter Sely were bound in a Bond to a third person for the payment of 100 l. being the proper Debt of the said Thomas who gave Peter a Counter-bond to save himself harmless And that Thomas being so seised did execute a Déed to Peter as a Collateral Security to indempnifie him for the payment of this 100 l. by which Deéd after a recital of the Counterbond given to Peter and the Estate which Thomas had in the Lands he did covenant grant and agree for himself his Executors Administrators and Assigns with the said Peter that he his Executors and Administrators should hold and enjoy these Lands from the time of the making of the said Déed for seven years and so from the end of seven years to seven years for and during the term of 49 years if Thomas should so long live 2 Cro. 301. In which Déed there was a Covenant that if the said 100 l. should be paid and Peter saved harmless according to the Condition of the said Counterbond then the said Déed to be void The Question was whether this being in the Case of Copyhold Lands will amount to a Lease thereof and so make a Forfeiture of the Copyhold Estate there being no Custom to warrant it Ex parte Quer. This Case was argued this Term by Serjeant Pemberton for the Plaintiff and in Trinity Term following by Serjeant Maynard on the same side who said that this was not a good Lease to entitle the Lord to a Forfeiture It hath béen a general Rule that the Word Covenant will make a Lease though the Word Grant be omitted nay a Licence to hold Land for a time without either of those Words will amount to a Lease much more when the Words are to * 2 Cro. 92 398. Noy 14. 1 Roll. Abr. 848 849. Cro. Car. 207. have hold and enjoy his Land for a Term certain for those are Words which give an Interest and so it hath béen ruled in Tisdale and Sir William Essex's Case which is reported by several and is in Hob. 35. and 't is now setled that an Action of Debt may be brought upon such a Covenant And all this is regularly true in the Case of a Fréehold But if the construing of it to be a Lease will work a Wrong then 't is only a Covenant or Agreément and no Interest vests and therefore it shall never be intended a Lease in this Case because 't is in the Case of a Copyhold Estate for if it should there would be a Wrong done both to the Lessor and Lessée for it would be a Forfeiture of the Estate of the one and a defeating of the Security of the other It has beén generally used in such Cases to consider what was the intention of the Parties and not to intend it a Lease against their meaning for which there is an express Authority 2 Cro. 172. in the Case of Evans and Thomas Noy 128. in which Howel covenants with Morgan to make a Conveyance to him of Land by Fine provided that if he pay Morgan 100 l. at the end of thirtéen years that then the use of the Fine shall be to the Congnisor and covenants that Morgan shall enjoy the said Lands for thirtéen years and for ever after if the 100 l. be not paid The Assurance was not made and this was adjuged no Lease for thirtéen years because it was the intent of the Parties to make an Assurance only in the nature of a Mortgage which is but a Covenant And this appears likewise to be the intention of the Parties here because in the very Deed 't is recited that the Lands are Copihold It also sounds directly in Covenant for 't is that Peter shall or may enjoy without the lawful let or interruption of the Lessor All Agreements must be construed secundum subjectam materiam if the Matter will bear it and in most Cases are governed by the intention of the Parties and not to work a Wrong and therefore if Tenant in Tail makes a Lease for Life it shall be taken for his own Life and yet if before the Statute of Entails he made such Lease he being then Tenant in Fée-simple it had been an Estate during the Life of the Lessée but when the Statute had made it unlawful for him to bind his Heir then the Law construes it to be for his own Life because otherwise it would work a Wrong Hob. 276. Co. Lit. 42. So in this case it shall not amount to a Lease for the manifest inconveniency which would follow but it shall be construed as a Covenant and then no injury is done On the Defendants part it was argued by Serjeant Newdigate that though this was in the Case of a Copyhold Ex parte Def. that did not make any difference for the plain meaning of the Parties was to make a Lease But where the Words are doubtful and such as may admit of diverse constructions whether they will amount to a Lease or not there they shall be taken as a Covenant to prevent a Forfeiture So also if they are only Instructions as if a Man by Articles sealed and delivered is contented to demise such Lands and a Rent is reserved and Covenants to repair c. Or if one covenants with another to permit and suffer him to have and enjoy such Lands 1 Rol. Abr. 848. these and such like Words will not amount to a Lease because as hath béen said the intention of the Parties is only to make it a Covenant but here the Words are plain and can admit of no doubt But for an Authority in the Point the Lady * 2 Cro. 301. Mountagues Case was cited where it was adjudged that if a Copyholder make a Lease for a year warranted by the Custom sic de anno in annum during ten years 't is a good Lease for ten years and a Forfeiture of the Copyhold Estate Vide Hill 15 16 Car. 2. Rot. 233. the Case of Holt and Thomas in this Court The Court inclined that it was a good Lease Curia and by consequence a Forfeiture of the Copihold and that a Licence in this
Heir Male of the Body of the Devisor had by this Limitation an Estate Tayl as by Purchase and that the Inheritance in Fee simple did not vest in Francis 2. If Thomas the Covenantor had no Estate executed in him yet William his Son in this Case may take by way of future springing use because the Limitation of an Estate upon a Covenant to stand seised may be made to commence after the Ancestors Death for the old Seisin of the Covenantor is enough to support it There is a great difference between a Feoffment to Vses and a Covenant to stand seised for by the Feoffment the Estate is executed presently 1 Co. 154. Rector of Cheddington's Case So if there be a Feoffment to A. for Life Remainder to B. in Fee if A. refuse B. shall enter presently because the Feoffor parted with his whole Estate but if this had been in the Case of a Covenant to stand seised if A. had refused the Covenantor should have enjoyed it again till after the death of A. by way of springing use like the Case of Parsons and Willis 2 Roll. Abr. 794. Where a Man Covenants with B. That if he doth not marry he will stand seised to the use of B. and his Heirs B. dies the Covenantor doth not marry this Vse arises as well to the Heir of B. as to B. himself if he had been living and he shall have the Land in the nature of a descent But if William cannot take it either by purchase or by descent he shall take it 3. Per formam doni as special Heir to Thomas This Case was compared to that in Littleton Sect. 23. If Lands are given to a Man and the heirs Females of his Body if there be a Son the Daughter is not Heir but yet she shall take it for voluntas donatoris c. So if Lands are given to a Man and the Heirs Males of his Body the youngest Son shall have it after the death of the eldest leaving Issue only Daughters for these are descents secundum formam doni So in this Case the Estate Tail vested in Edward and when he died without Issue it comes to William per formam doni Object The Case of Greswold in 4 5 Ph. Mariae Dyer 156. seems to be express against this Opinion which was that Greswold was seised in Fee and made a Grant for Life the Remainder to the Heirs Males of his Body the Remainder to his own right Heirs he had Issue two Sons and dyed the eldest Son had Issue a Daughter and dyed and if the Daughter or her Vncle should have the Land was the question in that Case And it was adjudged that the Limitation of the Remainder was void because Greswold could not make his right Heir a Purchasor without departing with the whole Fee Postea Brittain and Charnock and therefore Iudgment was given against the special Heir in Tail for the Heir general which was the Daughter Answ Admit that Case to be Law yet the Iudges there differed in their Arguments 'T is not like this at Bar for that Case was not upon a Covenant to stand seised but upon a Deed indented and so a Conveyance at the Common Law But for an Authority in the point the Case of Pybus and Mitford was cited and relied on which was Trin. 24 Car. 2. Rot. 703. Mod. Rep. 159. 1 Ventris 372. adjudged by Hales Chief Iustice Rainsford and Wild but Iustice Twisden was of a contrary Opinion Serjeant Stroud who argued on the other side made three Points 1. Whether this Limitation be good in its creation 2. If the Estate Tail be well executed in Thomas the Covenantor 3. If it be good and well executed whether when Edward died without Issue the whole Estate Tail was not spent 1. And as to the first Point he held that this Limitation to the Heirs Males of Thomas was void in the creation because a Man cannot make himself or his own right Heir a Purchasor unless he will part with the whole Estate in Fee Dyer 309 b. If A. being seised in Fee makes a Lease for Life to B. the Remainder to himself for years this Remainder is void so if it had been to himself for Life because he hath an Estate in Fee and he cannot reserve to himself a lesser Estate than he had before 42 Ass 2. If I give Lands to A. for Life the Remainder to my self for Life the Remainder in Fee to B after the death of A. in this Case B. shall enter for the Remainder to me was void 1 H. 5. 8. 42 Edw. 3. 5. Bro. Estate 66. Dyer 69. b. 'T is true these Cases are put at the Common Law but the Statute of Vses makes no alteration for according to the Rules laid down in Chudleigh's Case by my Lord Chief Iustice Popham 1 Co. 138. 1. Vses are odious and so the Law will not favour them 2. A Rule at Common Law shall not be broke to vest an Vse and the Vses here cannot vest without breaking of a Rule in Law 3. Vses are raised so privately that he who takes them may not know when they vest and for that reason they are not to be favoured 4. The Statute annexes both the Possession and the Vse together as they vest and divest both together Moor 713. 2 Co. 91. Co. Lit. 22. Moor 284. 2. As to the second Point The Estate is not executed in Thomas and therefore William cannot take it by descent Heirs of his Body or Heirs Male are good Words of Limitation to take by Purchase from a Stranger but not from an Ancestor for there he shall take by descent and for this there is an Authority Co. Lit. 26. b. John had Issue by his Wife Roberga Robert and Mawd John dies Michael gave Lands to Roberga and to the Heirs of her Husband on her Body begotten Roberga in this Case had but an Estate for Life for the Fee Tail vested in Robert and when he died without Issue his Sister Maud was Tenant in Tail per formam Doni and in a Formedon she counted as Heir to Robert which she was not neither was she Heir to her Father at the time of the Gift yet it was held good for the Words Viz. Heirs of the Body of the Father were Words of Purchase in this Case If therefore no Vse for Life vested in Thomas then William cannot take by descent Dyer 156. Co. Lit. 22. Hob. 31. Dyer 309. 1 Co. 154. Lord Paget's Case cited in Hob. 151. 3. To the third Point Admitting both the former to be against him yet since Edward is dead without Issue the Estate Tail is spent But the whole Court were of Opinion Judgment That William should Inherit this Land in question for though at the Common Law a Man cannot be Donor and Donee without he part with the whole Estate yet 't is otherwise upon a Covenant to stand seised to Vses And if any other Construction should be made
Termino Paschae Anno 27 Car. II. in Communi Banco Naylor versus Sharpless and other Coroners of Lancashire AN Action on the Case was brought for a False Return in which the Plaintiff sets forth Case for a false Return Mod. Rep. 198. that upon a Writ issuing out of this Court to the Chancellor of the Dutchy of Lancaster Process was directed to six Coroners being the Defendants which was delivered to one of them being then in the presence of the Party who was to be arrested but he did not execute it and afterwards at the Return of the Writ they all returned Non est inventus This Action was laid in Middlesex and upon Not-Guilty pleaded the Cause came to Tryal and there was a Verdict for the Plaintiff Baldwyn Serjeant moved in arrest of Iugdment 1. Except That the Action ought not to be laid in Middlesex but in Lancashire where the Tort was committed But as to that it was answered by Serjeant Turner when two Matters both of which are material and are laid in two Counties the Action may be brought in either as if two libel in the Admiralty for a Contract made at Land in Dorsetshire and for which the Plaintiff brings an Action in London against one of them it has been adjudged the Action lies in either County 2. Except The Action will not lie against the six Coroners for the Tort was done by one alone As to that it was said all the Coroners are but one Officer so if one Sheriff suffer an Escape both are liable but in this Case it had been ill to have brought the Action only against one because the ground of it is the false Return which was made by six Coroners And as to the first Exception there could be no doubt now since after Verdict 't is * Stat. 16 17 Car. 2. c. 8. helped though the Trial be in a wrong County But the Court said that Statute helps a Mistrial in the proper County but not where the County is mistaken and inclined likewise that this Action was well brought against the six for this Tort committed by one Coroner but if it had béen for not arresting the Party in such a Case it ought to have been brought against the Coroner who was present with the person to be arrested for that had béen a personal Tort which could not have been charged upon the rest Edwards versus Roberts That he did totally forbear and doth not say hucusque good THE Plaintiff declares that the Defendant promised to pay him so much Mony in consideration that he would forbear to sue him and then he avers that he did extunc totaliter abstinere c. Vpon Non Assumpsit pleaded a Verdict was found for the Plaintiff And it was now moved by Turner Serjeant in Arrest of Iudgment 1. Except The consideration intends a total forbearance and the averment is that from the making of the promise he did totally forbear but doth not say hucusque Sed non allocatur for that shall be intended And it was the Opinion of the whole Court that if the Consideration be as in this Case wholly to forbear the Plaintiff by an Averment that from the making the promise hucusque he did forbear is well entituled to an Action A like Case was this Term where the Consideration was as before and the Averment was that he forbore seven Months and being moved in Arrest of Iudgment by Serjeant Baldwyn because 't is not said hucusque which implies that after the seven Months he did not forbear it was notwithstanding held good it being a reasonable time and the rather because if the Action had been brought within the seven Months and the Plaintiff had averred that hucusque he forbore it had been good enough Quaere Reed versus Hatton IN a special Verdict in Ejectment the Question did arise upon the construction of the Words in a Will Devise paying 5 l. per annum 't is a Fee The Case being this John Thatcher was seised in Feé of the Houses in question and did devise them to his Son Robert in which Will there was this Clause viz. Which Houses I give to my Son Robert upon this Condition that he pay unto his two Sisters five pounds a year the first payment to begin at the first of the four most usual Feasts that shall next happen after the death of the Testator so as the said Feast be a Month after his death with a Clause of Entry for Non-payment The Testator dies the Houses are worth 16 l. per annum and whether Robert the Son shall have an Estate for Life only or in Fee was the Question This was argued by Jones Serjeant for the Plaintiff and by Seys Serjeant for the Defendant And for the Plaintiff it was said Ex parte Quer. that Robert had but an Estate for Life 'T is true in most Cases the Word paying makes a Fee where there is no express Fee limited but the difference is viz. where the Mony to be paid is a Sum in gross let it be equivalent or not to the value of the thing devised the Devisee shall have a Fee though the Estate be not devised to him and his Heirs but if it be an annual payment out of the thing devised as in this Case it will not create a Fee without apt words because the Devisée hath no loss and therefore it hath beén held that if a Devise be made to two Sons to the intent that they shall bear equal share towards the payment of 40 l. to his Wife for Life the Sons had only an Estate for Life because 't is quasi an annuel Rent out of the Profits and no Sum in gross * Jones 211. Cro. Car. 157. Broke Abr. tit Estate 78. And * 6 Co. 16. Colliers Case was much relied on where this very difference was taken and allowed that paying 25 l. in gross makes a Fee but paying 50 s. per annum creates only an Estate for Life All Devises are intended for the benefit of the Deviseé and therefore where a Sum in gross is devised to be paid which is done accordingly in such Case if the Deviseé should die soon after the Mony would be lost if he should have only an Estate for Life but in the Case at Bar the Testator by a nice calculation had appointed when the first payment should be made viz. not until a Month after his decease which hath prevented that damage which otherwise might have happened to the Devisee if no such provision had béen made Vide Hob. 65. Green's Case Ex parte Def. But on the other side it was said that Robert had a Fée for though here is a Sum to be paid annually 't is a Sum in gross and Collier's Case was also relied upon on this side It was agreed where payment is to be made by which the Devisee can sustain no loss the Word Paying there will not make a Fée but if there
be any possibility of a loss there it will create a Fee which is the express resolution in Collier's Case Here the five pounds is payable quarterly and the first payment is to be made the next Quarter after the death of the Testator so as it be a Month after his decease if then he should die a Month before Christmas the Deviseé is to pay the whole quarterly payment at Christmas So that if he should dye the next day after instead of having any benefit he would lose by this Devise in case it should be construed that he had an Estate only for Life The Court were of Opinion that a Legacy or Devise is always intended for the benefit of the party so that 't is reasonable to make such construction of the Will that he may have no possibility of a loss And it hath been resolved where a Devise was to A. upon Condition to pay a Sum of Mony to B. and in case of failure that B. may enter 't is no Condition but an Executory Devise and that * 10 Co. 36. Mary Portington's Case was denyed to be Law in the Resolution of Fry and Porter's Case in the King 's Bench. Judgment And afterwards in this Term Iudgment was given for the Defendant For if there be a Devise to one upon Condition to pay a Sum of Mony if there be a possibility of a loss though not very probable that the Devisee may be damnified it shall be construed a Fee and such Construction hath been always allowed in Wills If A. devise 100 l. per annum to B. paying 20 s. 't is not likely that the Devisee should be dampnified but 't is possible he may and therefore the Estate in this Case being limited to Robert and charged with payments to the Sisters during their Lives doth plainly prove the intent of the Testator was that the Devisee should have an Estate in Fee simple and Iudgment was given accordingly Bridges versus Bedingfield DEBT was brought upon a Bond of Award Arbitrament Where the thing awarded is hindred to be done by the Act of a Stranger and the breach assigned was for not delivering of quiet possession to the Plaintiff of Seats in a Church The Defendant craves Oyer of the Bond and Condition which was for performance of an Award to be made de praemissis vel aliquâ parte inde and if there should be no Award made then for the performance of an Umpirage and pleads that the Arbitrators made no Award de praemissis but the Vmpire awarded that the Plaintiff should abinde upon all occasions hold two Seats quietly and peaceably in such a Church without any disturbance made by the Defendant and that on the first day of November following the Defendant should deliver up the Seats to the Plaintiff and that each should bear his own charge and by his Plea he farther sets forth that the Plaintiff enjoyed the Seats prout till the 30th day of October next following on which day the Seats were pulled down without his knowledge or consent per quod he could not deliver them to the Plaintiff on the said first day of November The Plaintiff demurred Ex parte Quer. and Serjeant Jones maintained the Demurrer and said that the Pleading of nullum fecerunt Arbitrium is not good for 't is said de praemissis only whereas it should have been nec de aliqua parte inde for if a Bond be to perform an Award of two persons or either of them it will not be sufficient to plead that those two persons made no Award without adding nec eorum aliquis But if an Award be to be made of the Mannors of Dale and Sale or either of them and the Award is made only of Dale 't is well enough 2. Except Viz. The Vmpirage is that the Plaintiff should hold the Seats abinde which is for ever and the Defendant pleads that the Plaintiff enjoyed them till the thirtieth day of October 3. Except Viz. The Seats were to be delivered to the Plaintiff on the first day of November and the Defendant pleads that they were pulled down before that day without his privity which is not a good Plea by way of excuse for being bound to deliver the Seats he is to prevent what may hinder the performance of the Condition 'T is agreed that if a thing be possible and afterwards by the Act of * Jones 179. Win's Case God becomes impossible to be done that will be a good excuse as if I promise to deliver a Horse at such a day and he dies before the day I am excused 21 E. 4. 70. b. So if a Scire Fac̄ be brought against the Bail and they plead that before the Writ brought the Principal was dead this was held not good upon Demurrer unless he is alledged to be dead before the Capias awarded against him Cro. Jac. 97. But if the Action of a Stranger interpose which makes the thing impossible that is no excuse 22 E. 4. 27. And therefore 't is no Plea for the Bail to say that the Principal was arrested at another Mans Suit and had to Prison for which reason he could not render him Cro. Eliz. 815. So if I deliver Goods to the Defendant and in Action of Detinue brought he pleads they were stole 't is no good Plea because the delivery charges him at his peril unless he undertake to keep them as his own 4 Co. * Cro. El. 815. Southcot's Case So if an Escape be brought against a Goaler he is not excused by alledging that Traitors broke the Prison Roll. Abr. 1. part 808. Et sic de similibus Ex parte Def. Seys Serjeant contra As to the first Exception nullum fecerunt Arbitrium de praemissis is well enough for that implies nec de aliqua inde parte especially if the contrary is not shewn in the Replication and therefore it shall never be intended that an Award was made of some part 2. 'T is said he enjoyed the Seats till the thirtieth of October and then they were taken down so not being in rerum natura they could not be enjoyed longer 3. And this is a good excuse for not delivering them to the Plaintiff on the first day of November and so a good performance of the Award Co. Lit. 206. b. If A. be bound to B. that C. shall marry Jane such a day and B. the Obligee doth marry her himself before that day the Obligor is excused because by his means the Condition could not be performed There is a difference taken where a Man is bound to deliver things which are in his Custody and other things which are not in his possession as in the first Case to deliver my Horse or Dog for such I may secure in my Stable from casualties But in this Case it is expresly said in the Award that the Property of the Seats was in the Plaintiff and that they were fixed in the Church so that he
Execution yet he may extend the very Lands so released so if the Debtee release to the Debtor all his right and title which he hath to his Lands and afterwards gets a Iudgment against him he may extend a Moiety of the same Lands by Elegit the reason is because at the time of these Releases given they had no title to the Land but only an inception of a right which might happen to take place in futuro so here a Release by the Executor of the Debtee to the Administrator of the Debtor before Probate of the Will is not good because by being made Executor he had only a possibility to be entituled to the Testators Estate and no Interest 'till Probate for he might refuse to prove the Will or renounce the Executorship It is true a Release of all * Godol 145. pl. 4. Actions had been good by the Executor before Probate because a right of Action is in him and a Debt which consists meerly in Action is thereby discharged but in such case a Release of all right and title would not be good for the reasons aforesaid Ex parte Def. But for the Defendant it was insisted that this Release was a good Plea in Barr for if a Release be made by an Executor of all his right and title to the Testators Estate and then the Executor sues the Party Released as the Administrator is sued in this Case for a Debt due to the Testator the Release is good because if he had recovered in this Case the Iudgment must be de bonis Testatoris which is the subject matter and that being released no Action can lye against the Administrator Adjornatur DE Term. Sancti Mich. Anno 28 Car. II. in Banco Regis Piggot Lessee of Sir Thomas Lee versus the Earl of Salisbury Intrat ' Pasch 26 Car. 2. Rot. 609. IN Ejectment for fourteén Houses and some Gardens in the Parish of St. Martin in the Fields Warranty where by displacing of a Right by a Fine sur concessit it shall barr the Heir Jones 68. the Iury find as to all but one Moiety for the Defendant as for the other Moiety they find that these were formerly the Houses of one Nightingale who was seised thereof in Fée and made a Lease of them which commenced 1 Apr. 7 Jac. yet in being That the Reversion descended to Briget his Daughter and Heir who married William Mitton by whom she had a Daughter named Elizabeth That upon the Marriage of the said Elizabeth with Francis the Son of Sir Oliver Lee by Fine and other Settlements these Houses were settled to the use of the said Bridget for Life then to the use of Francis Lee and the said Elizabeth and the Heirs on the Body of the said Elizabeth to be begotten by Francis And for want of such Issue to William Mitton for Life and afterwards to the right Heirs of Bridget Mitton for ever William Mitton and Bridget his Wife before the expiration of the Term levy a Fine sur concesserunt to two Cognisees wherein the said Husband and Wife conced ' tenementa praed ' totum quicquid habent in tenementis praed ' cum pertin̄ for the Life of the said Husband and Wife and the Survivor of them with Proclamations They find that the Lessee for years attorned and that the Fine thus levied was in Trust for the Earl of Salisbury and that before the first day of February before the Action brought he entred by the direction of the two Cognizees and that he was seised prout Lex postulat That 1 Febr. 7 Jac. Sir Oliver Lee Francis Lee his Son and Heir and Elizabeth his Wife William Mitton and Bridget his Wife by Bargain and Sale convey the Premises to the Earl and his Heirs which was enrolled in Chancery in which Deéd there was a Warranty against Sir Oliver and his Heirs That in the same Term viz. Octab. Purificationis William Mitton and Bridget his Wife levyed a Fine sur Cognisance de droit come ceo c. to the Earl That Francis Lee was Son and Heir of Sir Oliver Lee. That Sir Oliver and Elizabeth died in the Life-time of Francis and that Francis died leaving Issue Sir Thomas Lee the now Lessor of the Plaintiff That the Warranty discended upon him being inheritable to the Estate Tail That the Estate of the Earl of Salisbury descended to the present Earl who was the Defendant That Sir Thomas Lee entred and made a Lease to the Lessor of the Plaintiff Question The Question upon this Special Verdict was if by the Fine sur concesserunt levied 7 Jac. the Estate which the Husband and Wife had in possession only passed or whether that and the Estate for Life which the Husband had after the Tail spent passed likewise If the latter then they passed more than they could lawfully grant because of the intervention of the Estate Tail and then this Fine wrought a * Co. Lit. 338. b displacing or divesting the Estate of William Mitton for Life in Reversion and turned it into a Right and if so then this collateral Warranty of Sir Oliver Lee will discend on Sir Francis and from him to the Plaintiff and will barr his Entry But if the Estate was not displaced and turned into a Right at the time of the Warranty then the Heir is not barred by this collateral Warranty of his Ancestor This Case was argued by Serjeant Pemberton for the Plaintiff and by Sir William Jones the Attorny General for the Defendant Ex parte Quer. And for the Plaintiff it was said that this Fine passed only the Estate which William Mitton and his Wife had in possession and no other and therefore worked no divesting and his Reasons were 1. Such a Construction seems most agreeable to the intention of all the Parties to the Fine 2. It may well stand with the Nature and the Words of the Fine 3. It will be most agreeable both to the Iudgments and Opinions which have formerly béen given in the like Cases And as to the first of these it will be necessary to consider what will be the effect and consequence of levying this Fine both on the one side and the other It cannot be denyed but that there was a Purchase intended to be made under this Fine and that the Parties were willing to pass away their Estate with the least hazard that might be to themselves neither can it be imagined that they intended to defeat this Purchase as soon as it was made which they must do if this Fine works a Forfeiture for then he in Remainder in Tail is entituled to a present Entry and so the Estates for Life which the Baron and Feme had are lost and there was a possibility also of losing the Reversion in Feé which the Tenant in Tail after his Entry might have barred by a Common Recovery And had not the Parties intended only to pass both the Estates which they lawfully might
pass why did they levy this Fine sur concessit They might have levyed a Fine sur Cognisance de droit come ceo c. and that had beén a Disseisin Besides what need was there for them to mention any Estate which they had in these Houses if they had intended a Disseisin But this being done such a Construction is to be made as may support the intent of the Parties and it would be very unreasonable that what was intended to preserve the Estate should now be adjudged to work a Dissesin so as to forfeit it and such a Disseisin upon which this collateral Warranty shall operate and barr the Estate in Remainder And therefore no more shall pass by this Fine than what lawfully may and rather than it shall be construed to work a Wrong the Estate shall pass by fractions for both the Estates of William Mitton for Life are not so necessarily joyned and united by this Fine that no room can be left for such a Construction 2. Such a Construction will not agreé with the Nature and Words of this Fine 'T is true a Fine as it is of the most solemn and of the greatest Authority so 't is of the greatest force and efficacy to convey an Estate and the most effectual Feoffment of Record where 't is a Feoffment and likewise the most effectual Release where 't is to be a Release But on a bare Agreément made in Actions betwéen the Demandant and Tenant at the Barr and drawn up there the Iudges will alter and amend such Fines if they did not in all things answer the intention of the Parties 24 Ed. 3. 36. Postea 'T is agreed that Fines can work a Disseisin when they can have no other Interpretation as if Tenant pur auter vie levy a Fine to a Stranger for his own Life 't is more than such a Tenant could do because his Estate was during the Life of another and no longer So a Fine sur Cognisance de droit c. implies a Fée which being levyed by any one who has but a particular Estate will make a Disseisin But this Fine sur concessit has beén always taken to be the most harmless of all others and can be compared to nothing else than a Grant of totum statum suum quicquid habet c. by which no more is granted than what the Cognisor had at the time of the Grant and so it hath been always construed Indéed there is a Fine sur concessit which expresses no Estate of the Grantor and this is properly levyed by Tenant in Fée or Tail but when particular Tenants pass over their several Estates they generally grant totum quicquid habent in tenementis praedictis being very cautious to express what Estate they had therein When this Fine sur concessit was first invented the Iudges in those days looked upon the Words quicquid habent c. to be insignificant and for that reason in Anno 17 E. 3. 66. they were refused The case was Two Husbands and their Wives levied such a Fine to the Cognisee and thereby granted totum quicquid habent c. which Words were rejected and the Iudge would not pass the Fine because if the Party had nothing in the Land then nothing passed and so is 44 Ed. 3. 36. By which it appears that the Iudges in those times thought these Fines did pass no more than what the Cognisor had and for this there are multitude of Authorities in the Year Books Now these Words cannot have a signification to enlarge the Estate granted they serve only to explain what was intended to pass for in the Case at the Barr if the Grant had béen totum quicquid habent in tenementis praedictis there would have been no question of the Estate granted but the Cognisors having granted tenementa praedicta they seem by these subsequent Words to recollect themselves viz. totum quicquid habent in tenementis praedictis Object But it may be objected that the Limitation of the Estate viz. durante vita eorum alterius eorum diutius viventis works a Disseisin because by those Words two Estates for Life pass entire in possession whereas in truth there was but one Estate for Life of the Husband in possession and therefore this was more than they could grant because the Estate Tayl came between the Estate which the Husband and Wife had for their Lives and for the Survivor of them and the Estate which the Husband had for his own Life And this is farther enforced by that Rule in Law That Estates shall not pass by fractions for otherwise there can be no reason why they should not thus pass Answ But this Rule is very fallible and not so much to be regarded 't is true the Rule is so far admitted to be true where without inconveniency Estates may pass without fraction but where there is an inconveniency it may be dispensed withal it being such an inconveniency as may appear to the Iudges to make the thing granted to go contrary to the intent of the Parties And that such Interpretations have been made agrees with the third Reason proposed in this Case viz. That it hath received countenance by judicial Opinions and determinations in former Iudgments 14 E. 4. 4. 27 H. 8. 13. 1 Co. 67. Bredons Case which was thus Tenant for life remainder in tayl to A. remainder in tayl to B. Tenant for life and he in the first remainder levied a Fine sur cognisance de droit come ceo 't was adjudged that this was no Discontinuance of either of the Remainders 1 Roll. Abr. lit I. pl. 4. 1 Inst 45. a. Cro. Car. 406. because each of them gave what he might lawfully viz. The Tenant for Life granted his Estate and the Remainder-man passed a Fee-simple determinable upon his Estate Tail and yet each of their Estates were still divided On the other side it was said that in all Cases where the person who hath a particular Estate takes upon him either by Feoffment in pais or by Fine which is a Feoffment on Record to grant a greater Estate than he hath as in this Case is done though possibly the Estate of the Grantée may determin before that of the Grantor yet 't is a displacing the Reversion as if a Man has an Estate for ten Lives and makes a Grant for the Life of another here is a possibility that the Estate which he granted may be longer than the Estate he had in the thing granted because one Man may survive the Ten and for that reason 't is a divesting 1. In this Case the Estate which the Husband and Wife had is to be considered 2. What they granted And by comparing of these together it will appear whether they granted more than they had The Husband and Wife had an Estate for the Life of the Wife and after the Estate Tail the Husband had an Estate for his own Life now they grant
an Estate for the Life of the Husband and Wife and the Survivor What is this but one entire Estate in possession No other Interpretation can be agréeable to the sense of the Words for if it had been granted according to the true Estate which each had then it should have been first for the Life of the Wife and after the Tail spent then for the Life of the Husband The next thing to be considered is Whether the Estate shall pass entire or by fractions And as to that I need say no more than only to quote the Authority of that Iudgment given in Garret and Blizard's Case 1 Roll. Abr. 855. which is shortly thus viz. Tenant for Life Remainder for Life Remainder in Tail Remainder in Fee to the Tenant for Life in Remainder this Tenant for Life in Remainder levies a Fine come ceo c. it was adjudged a Forfeiture of his Estate for Life so that the Remainder Man in Tail might enter after the death of the Tenant for Life in possession for it shall not be intended that he passed his Estate by fractions viz. an Estate in Remainder for Life and a Remainder in Feé expectant upon the Estate Tail but one entire Estate in possession and 't is not like the Authority in Bredon's Case for there the Estate for Life and the Estate Tail followed one another Next it is to be considered whether after they granted omnia illa tenementa the subsequent Words totum statum suum c. do not come in by way of Restriction and qualifie what went before But those subsequent Words are placed in this Fine not by way of Restriction but of Accumulation Litt. 345 In Littleton Sect. 613. 't is said that if Tenant in Tail grants all his Estate in the Tenements Habendum all his Estate c. in this Case the Alienee hath but an Estate for the Life of the Tenant in Tail and 't is observable that totum statum in the Case put by Littleton is both in the Premisses and the Habendum But if I will grant tenementa praedicta in the Premisses and then make another Limitation in the Habendum there totum statum quicquid can make no Restriction if it should it will spoil most Conveyances It is agréed that if those Words had béen omitted in this Case then by this Fine the Reversion would be displaced and therefore much weight is laid upon these Words to explain the meaning of the Parties thereby and that when they granted tenementa praedicta they meant totum statum c. But here is no ground for such an Interpretation 't is an entire Grant of the Houses by the Words Tenementa praedicta and the subsequent Words shall never be allowed to make such a Restriction which shall overthrow the frame of the Déed If a Man who has no Estate in the Land passes it by Deéd this shall work against him by way of Estoppel and these Words totum quicquid c. which are usual in all Conveyances shall make no alteration of the Law for if such construction should be made of these Words as hath béen objected then in all Déeds where they are inserted if it happen that the Party hath no Estate or a void Estate nothing passes and then Covenants Estoppels and Warranties would be no Securities in the Law 2. These Words totum quicquid c. come in a distinct Clause of the Grant the precedent Words are Tenementa praedicta totum statum quicquid c. reddiderunt which are two parts a Grant and a Release and have no dependance upon each other being distinct Clauses and therefore these Words shall not be any Restriction of the former but if one Clause be carried on with a connexion so as 't is but an entire sentence in such Case a Man may restrain either general or particular Words Hob. 171. in Stukely and Butler's Case 3. Admitting these Words are a Restriction of the former yet the Estate is so limited that if the first Words were out of the Case this later Clause he said was enough for his purpose for the Grant is not in the usual Words by which Estates pass viz. Estate Right Title Interest but Totum quicquid c. for the Lives of the Grantors and the Survivor which shews that they took upon themselves to grant for a longer time than they had in possession if they had only granted it for both their Lives they might have some colourable pretence 4. 'T is apparent from the Clause of the Warranty that the intent of the Parties was to grant an Estate expresly in possession for the Lives both of the Husband and his Wife for 't is that which the Grantée shall hold c. during their Lives and the longest Liver Object The Case of * 2 Rol. Abr. 36 403. Eustace and Scaven has been objected 'T is reported in 2 Cro. 696. which is Feme Covert and A. are Iointenants for Life the Husband and Wife levy a Fine to A. the other Iointenant and grant the Land and totum quicquid habent c. to him during the Life of the Wife with Warranty the Wife survives A. her Companion Adjudged that these Words Totum quicquid shall not enure by way of Grant and severance of the Iointure of the Moiety for then there would be an Occupancy but they are restrictive only to the Estate of the Wife and shall enure by way of Release to A. so that after his death he in Reversion may enter Answ It would not be a Question in that Case whether these Words were restrictive or not for nothing was granted but what might lawfully pass viz. during the Life of the Wife the other Ioyntenant neither was there any stress laid on those Words for Mr. Iustice Jones who was a Learned Man and reported the same Case fol. 55. hath made no mention thereof but hath wholly omitted those Words which he would not have done if the Case had depended upon them 2. Object Next the Form of this Fine has been objected and a President was cited Rast Entr. 241. where such a Fine was levied and nothing passed but for the Life of the Conusor Answ But no Authority can be produced where a Man that had an Estate for Life in Possession and another in Remainder and granted by the same Words as in this Case but that it was a Forfeiture 3. Object That the Law will not make a Construction to work a Wrong and therefore if Tenant for Life grant generally for Life it shall be interpreted during the Life of the Grantor Answ That Case is without express Words or shewing any time for which the Grantee shall have the thing granted and therefore the Law restrains it to the Life of the Grantor because it will not make Words which are doubtful and of incertain signification to do any Wrong But where there are express Words as in this Case no other
unruly and endeavour to escape but 't is expresly against the Law to do it where there is no such reason because a Prison is for the safe Custody of Men and not to punish them 1 Inst 260. a. So that it appears by this that a stricter remedy was provided for Executions in Accompt than for those in Debt 3. There are certain persons also who are made chargeable by this Statute when the Execution is in Accompt who cannot be charged in Debt for the Statute Enacts That if the Party escape the Officer in whose Custody he is shall answer sive infra Libertatem sive extra so that the Gaoler shall be charged whether he be of a Franchise or of the County at large but if a Man is in Execution for Debt and then escapes the Gaoler is not lyable but the Sheriff though the * 3 Co. 71. Westby's Case Gaoler hath the Custody of the Body of one whom the late Sheriff did not deliver over to the present Sheriff So that in this also there is a difference upon this Statute between Actions of Accompt and Actions of Debt and therefore the Clause therein of Respondeat Superior being made upon a particular occasion only in the Case of Accompt shall not be extended to other Matters and can in no wise influence this Case which for other Reasons cannot be governed by that Rule if extended to all who have power to depute an Officer and thereby give him an Interest or to appoint one for a time 2. Point 1. Because he in Reversion is not in propriety of Speech a Superior for 't is not said that a Reversioner after an Estate for Life is Superior and of more accompt in the Law than he who hath the particular Estate but on the contrary he who hath the Fréehold is of greater accompt and regard in the Law than the Reversioner after him and if as it hath been objected both make but one Estate then there can be no Superiority and it would be very hard and difficult for any Man to prove that any Attendancy is made by the Tenant for Life upon him who hath the Reversion 2. Here is room enough within the Statute to satisfie that word Superior by a plain and clear construction without bringing in the Reversioner for if the Sheriff makes a Deputy or a Lord makes Bayliff of a Liberty the Sheriff and the Lord are properly the Superiors 3. This word Superior is used in the Statute made the same year with this cap. 2. in signification agreeable with the Case in question for it recites that where Lords of Fees distrain their Tenants for Rents and Services and they having replevied their Cattle do alien or sell them so that a Return cannot be made then it provides that the Sheriff or Bailiff shall take Pledges to prosecute the Suit before they make deliverance of the Distress and if the Bayliff be not able to restore that is if he take insufficient Pledges the Superior shall answer by which the Parliament could mean no other than the Lord of that Liberty for if it should be otherwise there would be no end of Superiors as if there is a Bailiwick in Fee of a Liberty and the Bayliff thereof grants it for Life in this Case there are two Superiors for the Lord of the Bayliff is one and the Bayliff himself is another which cannot be 2 Inst 382. There is a Congruity in Law in saying the Sheriff and Lord are Superiors but there can be none in making the Reversioner a Superior The Lord may lose the Liberty if his Bayliff for Life or in Fee commit a Forfeiture as by not attending the Iustices in Eyre but a Reversion cannot be lost by the Forfeiture of the Tenant for Life if the Bayliff make an ill Execution of a Writ or suffer the Party to escape the Lord shall answer so if the Marshal of England appoint a Marshal there may be a Forfeiture of his Office because 't is but still the same Office and therefore the Case in Cro. Eliz. 386. where 't is said If an Office be granted for Life the Forfeiture of Tenant for Life shall be the Forfeiture of the whole Office is mistaken for in Moor pl. 987. 't is held otherwise and upon the true difference between a Deputy and a Granteé for Life for in the first Case there may be a Forfeiture of the Superior because 't is still but the same Office but in the other Case the Superior shall not forfeit for any Misdemeanour of the Grantée for Life because he hath the Freehold of the whole Office and the other nothing but the Reversion and therefore if the Defendant be liable in this Case 't is in respect 1. That he hath granted the Estate 2. That he hath the Reversion or Residue after the Life of the Grantee He cannot be charged in respect that he hath granted the Estate because the Freehold is gone and in another neither can he be charged in respect of the Reversion because then not only his Heir but the Assigneé of the Reversion will be chargeable also which cannot be As to the second Point of this Argument if the Defendant is not chargeable by this Statute he is not to be charged at the Common Law Sid. 306 397. 2. Because the Common Law doth not give an Action of Debt for an Escape but an Action on the Case only neither doth it give any Remedy but against the Party offending As to the Case that hath beén objected upon the Statute de Scaccario where the several Officers in the Exchequer shall answer in their degrées of Superiority that cannot be applicable to this Case because there can be no proportion betweén things which concern the Kings Revenue and Prerogative and those of a common person The Cases of the Coroner and the Sheriff and of the recommending of a Receiver to the King are not like this Case because the King cannot inform himself of the sufficiency of the Party recommended and therefore 't is but reasonable that he who recommends should be liable and can it be said that when the Defendant was about to sell this Office to one Norwood which he hath since done that if a Stranger had recommended Norwood and he had proved insufficient that the Stranger would have béen liable As for the Civil Law and the Authorities therein cited to govern this Case he did not answer them because they judge after their Law and the Common Lawyers after another way This Office hath béen granted time out of mind for Life and no doubt but many Escapes have been made but never was any Action brought against him in the Reversion before now The Court of Common Pleas always examine the sufficiency of the Grantee for Life which shews that in all succession of Ages the Opinions of Learned Men were that no Escape could be brought against the Reversioner for if so what need is there of such Examination This was urged
of Lands Tenements and Hereditaments 't was adjudged entailed Lands did not pass do not concern this Case but now since they are made forfeitable by that Statute such general words are sufficient to serve the turn By the Statute of 16 R. 2. cap. 5. entailed Lands are not forfeited in a Praemunire but during the Life of Tenant in Tail because they were not then to be forfeited for Treason 2 Inst 334. 1 Inst 3. Co. Lit. 130. If then it appears that the Crime of which Sir John Danvers was guilty was Treason and if entailed Lands are forfeited for Treason then when the Act saith That he shall forfeit all his Lands by those general Words his entailed Lands shall be forfeited And though by the Common Law there can be no Attainder in this Case the Party being dead yet by Act of Parliament that may be done and the words in this Act amount to an Attainder The intent of it was to forfeit Estates Tail which may be collected from the general Words for if a Fee-simple is forfeited though not named why not an Estate Tail especially since the word Hereditaments is very comprehensive and may take in both those Estates Spelman's Glossary 227. 2 Roll. Rep. 503. In the very Act of 26 H. 8. cap. 13. Estates Tail are not named for the Words are Every Offender convict of Treason c. shall forfeit all such Lands Tenements and Hereditaments which he shall have of any Estate of Inheritance in use possession or by any Right Title or Means c. and yet a Construction hath been made thereupon in favour of the Crown so a Dignity of an Earldom intailed is forfeitable by this Statute by the Word Hereditament 7 Co. 34. Afterwards in Hillary Term Rainsford Chief Iustice delivered the Opinion of the Court Judgment That upon Construction of the Act of Pains and Penalties this Estate Tail was forfeited to the King He agreed the Series and progress of Estates Tail to have been as argued by the Solicitor and that the Question now was whether by the Act of Pains c. Estates Tail can be forfeited unless there are express Words to take away the force of the Statute de donis conditionalibus Preface to 3 Co. for by that Statute there was a settled perpetuity Tenant in Tail could neither forfeit or alien his Estate no not in Case of Treason and Forfeiture is a kind of Alienation but afterwards by the Resolution in Ed. 4. an Alienation by a Common Recovery was construed to be out of the said Statute and by the Statute of Fines 4 H. 7. which is expounded by a subsequent Statute of 32 H. 8. cap. 36. Tenant in Tail notwithstanding his former restraint had power to alien the Estate Tail and barr his Issue but all this while his Estate was not to be forfeited for Treason till the Statute of 33 H. 8. cap. 20. which gives Uses Rights Entries Conditions as well as Possessions Reversions Remainders and all other things of a person attainted of Treason by the Common or Statute Law of the Realm to the King as if such Attainder had been by Act of Parliament Then by the Statute of 5 6 Ed. cap. 11. 't is Enacted That an Offender being guilty of High Treason and lawfully convict shall forfeit to the King all such Lands Tenements and Hereditaments which he shall have of any Estate of Inheritance in his own Right in Use or Possession by which Statutes that de donis conditionalibus was taken off in Cases of Treason as it had been before by the resolution in 12 E. 4. and by the Statute of Fines as to the Alienation of an Estate Tail by Fine and Recovery If therefore this Act of Pains c. will admit of such a construction as to make Estates Tail forfeit here is a Crime great enough to deserve such a great punishment a Crime for which the Parliament hath ordered an Anniversary to be kept for ever with Fasting and Humiliation to implore that the Guilt of that innocent Blood then shed may not be required of our Posterity this they esteemed as another kind of Original Sin which unless thus expiated might extend not only ad Natos sed qui nascantur ab illis And that this Act will admit of such a Construction these Reasons were given 1. From the general comprehensive Words mentioning those things which are to be forfeited viz. Messuages Lands Tenements Reversions and Interests which last Word signifies the Estate in the Land as well as the Land it self or otherwise the Word must be construed to have no effect 2. Estates Tail are not now protected by the Clause in the Statute de donis * Inst 334. Non habet potestatem alienandi but are subject to the forfeiture by the Act of H. 8. which though it extends to Attainders only yet 't is a good Rule for the Iudges to make a Construction of an Act of Parliament by especially in such a Case as this wherein 't is plain that the Law did look upon these Offenders if not attainted yet in pari gradu with such persons and therefore may be a good Warrant to make the like Construction as in Cases of Attainder 3. Because the Offenders are dead for had they béen living there might have been better reason to have construed this Act not to extend to Estates Tail because then something might be forfeited viz. an Estate for Life and therefore the Act would signifie very little if such Construction could not be made of it to reach Estates Tail of such persons who were dead at the time of the making the Law especially since 't is well known that when Men engage in such Crimes they give what Protection they can to their Estates and place them as far as they can out of danger 4. It appears by the Act that the Law-makers did not intend that the Children of such Offenders should have any benefit of their Estates because in the Proviso there is a saving of all Estates of Purchasers for Mony bona fide paid and therein also a particular Exception of the Wife and Children and Heirs of the Offenders and if the Act would not protect the Estate of the Children though they should be Purchasers for a valuable consideration it will never protect their Estate under a voluntary Conveyance made by the Ancestor especially in this Case because the Entail carries a suspicion with it that it was designed with a prospect to commit this Crime for Sir John Danvers was Tenant in Tail before and in the year 1647. levies a Fine to barr that Entail and then limits a new Estate Tail to himself in which there is a Provision to make Leases for any number of years upon what Lives soever in Possession or Reversion with Rent or without it and this was but the year before the Crime committed 5. The Proviso in the Act for saving the Estates of Purchasers doth protect all Conveyances and
to such person or persons and to such use and uses intents and purposes as she should think fit and that the Plaintiff should assent thereunto and not impeach the same in Law or Equity The Marriage shortly afterwards took effect and Philippa by Will in Writing gave all her Estate away in Legacies and Charitable Vses and she devised to the Plaintiff 20 l. to buy him Mourning and gave to Sir William Turner the Defendant 100 l. and made him Executor and she devised to Mr. Hays and to Mr. Grace 20 l. apiece whom she made Overseers of her Will and died There was neither Date or Witnesses to this Will save only the Month and Year of our Lord therein mentioned and that this Will not being proved in the Spiritual Court the Plaintiff moved for a Prohibition and the Defendant took Issue upon the Suggestion In which Case these Points were resolved by the Court. Mod. Rep. 211. 1. If there be an Agreement before Marriage that the Wife may make a Will if she do so 't is a good Will unless the Husband disagreés and his Consent shall be implyed till the contrary appear And the Law is the same though he knew not when she made the Will which when made 't is in this Case as in others ambulatory till the death of the Wife and his dissent thereunto but if after her death he doth consent he can never afterwards dissent for then he might do it backwards and forwards in infinitum 2. If the Husband would not have such Will to stand he ought presently after the death of the Wife to shew his dissent 3. If the Husband consent that his Wife shall make a Will and accordingly she doth make such a Will and dieth and if after her death he comes to the Executor named in the Will and seems to approve her choice by saying He is glad that she had appointed so worthy a Person and seemed to be satisfied in the main with the Will and recommended a Coffin-maker to the Executor and a Goldsmith for making the Rings and a Herald Painter for making the Escutcheons this is a good assent and makes it a good Will though the Husband when he sees and reads the Will being thereat displeased opposes the Probate in the Spiritual Court by entring Caveats and the like and such disagreément after the former assent will not hurt the Will because such assent is good in Law though he know not the particular Bequests in the Will 4. When there is an express Agreement or Consent that a Woman may make a Will a little proof will be sufficient to make out the continuance of that Consent after her death and it will be needful on the other side to prove a Disagreement made in a solemn manner and those things which prove a dissatisfaction on the Husbands part may not prove a disagreement because the one is to be more formal than the other for if the Husband should say that he hoped to set aside the Will or by a Suit or otherwise to bring the Executor to terms this is not a dissent Sir Robert Howard versus the Queens Trustees and the Attorney General In the Dutchy UPON a Bill exhibited in the Dutchy Court Jones 126. The Question was whether the Stewardship of a Mannor was grantable in Reversion or not The Attorny General and the Queens Council Butler and Hanmore held that it was not But Serjeant Pemberton and Mr. Thursby would have argued to the contrary for they said it might be granted in Fée or for any less Estate and so in reversion for it may be executed by Deputy But this Question arising upon a Plea and Demurrer the Debate thereof was respited till the hearing of the Cause which was the usual Practice in Chancery as North Chief Iustice who assisted the Chancellor of the Dutchy informed the Court. And he said that in all Courts of Equity the usual course was when a Bill is exhibited to have Mony decreed due on a Bond upon a Suggestion that the Bond is lost there must be Oath made of it for otherwise the Cause is properly triable at the Common Law and such course is to be observed in all the like Cases where the Plaintiff by surmise of the loss of a Déed draws the Defendant into Equity but if the Case be proper in its own nature for a Court of Conscience and in case where the Déed is not lost the Remedy desired in Chancery could not be obtained upon a Trial at Law there though it be alledged that the Déed is lost Oath need not be made of it as if there be a Déed in which there is a Covenant for farther Assurance and the Party comes in Equity and prays the thing to be done in specie there is no need of an Oath of the loss of such Deed because if it 't is not lost the Party could not at Law have the thing for which he prayed Relief for he could only recover Damages Note also That he said in the Case of one Oldfeild that it was the constant practise where a Bill is exhibited in Equity to foreclose the right of Redemption if the Mortgagor be foreclosed he pays no Costs and though it was urged for him that he should pay no Costs in this Case because the Mortgagee was dead and the Heir within Age and the Mony could not safely be paid without a Decree yet it being necessary for him to come into Equity he must pay for that necessity Note also the difference between a Mortgage in Fee and for Years for if 't is in Fee the Mortgagor cannot have a Reconveyance upon payment of the Mony till the Heir comes of Age. It was agreed in this Case by the Court that if there be Tenant for Life Remainder in Fee and they joyn in a Deed purporting an absolute Sale if it be proved to be but a Mortgage he shall have his Estate for Life again paying pro rata and according to his Estate and so it shall be in the Case between Tenant in Dower and the Heir Loyd versus Langford Lessee for Years makes an Assignment of his Term where Debt lies upon the Contract and where not IN a special Verdict the Case was Viz. A. being Tenant in Fee of Lands demised the same to B. for seven years B. re-demises the same Lands to A. for the said Term of seven years reserving 20 l. Rent per Annum A. dyes his Wife enters as Guardian to the Heir of A. her Son and receives the Profits B. brings Debt against her as Executrix de son tort in the debet and detinet and whether this Action would lie or not was the Question Serjeant Baldwyn who argued for the Plaintiff held that it did lie for though the Rent in this Case reserved did not attend the Reversion because the Lessee had assigned over all his Term yet an Action of Debt will lie for that Rent upon the Contract Cro. Jac. 487.
Remainder for Life surrenders the Copyhold to the Lord pro tempore who was a Disseisor only of the Mannor ut inde faciat voluntatem suam the Disseisor grants it to a Stranger for Life the Disseiseé enters the Stranger dies and whether the Disseisor or he in the Remainder for Life who made the Surrender had the better Title was the Question So that the Point was Cro. Car. 205. 2 Sid. 151. 1 Roll. Abr. 540. whether this Surrender by a Copy-holder in Remainder into the Hands of the Disseisor be good and shall so extinguish the Right to the Copyhold that it shall not be revived by the Entry of the Disseisee into the said Mannor It was said that in some Cases a Surrender into the Hands of a Disseisor was good that is when the Surrender is made to him to the use of another and his Heirs and he admits him there the person admitted claims not under the Lord but under the Copyholder who made the Surrender 1 Inst 59. b. for nothing passes to the Lord but only to serve the Limitation of the Vse 1 Rol. Abr. 503. litt Q. pl. 1. 4 Co. 24. But in this Case the Grantée must claim from the Lord himself and not from the Copyholder because he had but an Estate for his own Life with which he wholly departed when he made the Surrender to the use of the Disseisor himself In Trinity-Term following this Case was argued by Serjeant Maynard on the other side There are two sorts of Surrenders of a Copyhold 1. Proper 2. Formal and Ceremonious If a Surrender be to the Lord to the use of another this is no proper Surrender for no Estate passeth to the Lord he being only the Instrument to convey it to the Surrendree and this is but nominal But here the Surrender was to the use of the Lord himself which is a proper Surrender and in such Case 't is necessary that the Lord have a Reversion for one Estate is to be turned into the other and there must be a continuing of Estates But Dominus pro tempore who is a Disseisor hath no such Estate Executor de son tort shall sue but he cannot retain If therefore he is not capable to take a Surrender to himself unless he hath such an Estate then here is no Disseisin of the Copyhold 't is only of the Mannor and then no greater Interest passeth to the Disseisor than to a Stranger whilst the true Lord had been in possession for so he is quoad this Copyhold if he was not disseised of it for if the Copyholder had the possession there could be then no Disseisin if he was out of possession then he had nothing but a Right and that cannot be surrendred for it must be an Estate as if a Lessee for years keep possession 't is the possession of the Lord and the Law is the same in case of a Copyhold 2 Co. Bettisworth's Case Piggot and Lord Salisbury's Case Ante The true Owner makes a Feoffment in Fee if Lessee for years continue in possession no Fréehold passeth If Tenant at Will of parcel of the Mannor be in possession that prevents a Disseisin of the Freehold much more in Case of a Copyhold Lessee for years the Remainder to B. for Life the Remainder to C. in Fee C. by Deed makes a Feoffment to B. and Livery c. 't is a void Conveyance because the possession of Lessee for years is the possession of him in the Remainder for Life and as long as the Lessee for years is in the possession the Owner of the Inheritance cannot be out Lit. 324. cap. Attornment North Chief Iustice and Wyndham enclined that the Surrender was not good for it was a material distinction where the Surrender was made to the use of a Stranger and where it terminates in the Lord that a Surrender made by a Copyholder for Life could not transfer but extinguish his Right for he could not give a greater Estate than he had that there must be a Reversion in the Lord to make a Surrender to him to be good and that if a Copyholder keeps in possession there could be no Disseisin But Iustice Atkins contra That this Surrender must have operation to extinguish his Right for though a Copyholder for Life cannot surrender for longer time than his own Life yet if a Surrender be made of such a Copyhold to an Vse 't is good and works by way of Extinguishment of his Right though the Vse be void and if a Copyholder of Inheritance surrender to a Disseisor ut faciat voluntatem who regrants to the said Copyholder an Estate in Tail according to the Surrender this shall bind the Disseisee 1 Roll. Abridg. 503. pl. 3. Tamen quaere The Copyholder in this Case might have sold his Estate to the Disseisor and it had béen good and though the Acts of a Disseisor shall not prejudice the Disseisee yet he could see no reason why the Copyholder who had parted with his Estate should have it again Taylor versus Biddal SPecial Verdict in Ejectment The Case was thus Devise till he be of Age then to him in Fee he dyed within Age yet a Fee vested in him presently Richard Ben was seised in Fee of the Lands in question and had a Sister named Elizabeth formerly married to one Smith by whom she had Issue Augustine Smith now Lessor of the Plaintiff and she afterwards married one Robert Wharton by whom she had Issue a Son called Benjamin and a Daughter called Mary the now Defendant Richard Ben devised these Lands to Elizabeth his Sister and Heir for so long time and until her Son Benjamin Wharton should attain his full Age of 21 years and after he shall have attained his said Age then to the said Benjamin and his Heirs for ever and if he dye before his Age of 21 years then to the Heirs of the Body of Robert Wharton and to their Heirs for ever as they should attain their respective Ages of 21 years Richard the Testator dies Benjamin dyed before he came to the Age of 21 years living Roberr Wharton his Father afterwards Robert dyed And the Question was Whether the Lessor of the Plaintiff as Heir to Elizabeth or Mary either as Heir to her Brother Benjamin or as Heir of the Body of Robert should have this Land This Case was argued by Serjeant Pemberton this Term Ex parte Quer. and by Serjeant Maynard in Easter-Term following for the Plaintiff and they held that Augustine Smith the Lessor of the Plaintiff should have this Land because no Estate vested in Benjamin Wharton he dying before he had attained his Age of 21 years and the Testator had declared that his Sister should have it till that time and then and not before he was to have it so that if he never attained that Age as in this Case he did not the Land shall descend to the Heir of the Testator that Elizabeth had only an
Estate for years and so having no Freehold the Contingent Remainder could not be supported that Mary could not take by way of Executory Devise because Robert was living when his Son Benjamin dyed within Age that therefore 't is quasi a Condition precedent Grant's Case 10 Co. cited in Lampet's Case 1 Leon. 101. There is a difference between Boraston's Case and this at the Barr for that was a Devise to Executors till Hugh shall attain his Age of 21 years and the mean Profits in the mean time to be applyed by them for payment of the Testators Debts and because he might have computed how long it would be before his Debts could be paid therefore it was adjudged that after the death of Hugh within Age the Executors should continue in possession till Hugh might have attained his full Age had he lived and so a present Devise to them But here the Devise is generally till Benjamin Wharton shall attain his Age of 21 years so that nothing vested in him until that time and he dying before then the Estate shall descend to the general Heir who is the Plaintiff 2. Admitting this should be taken as an executory Devise there must be some person capable to take when the Contingency happens and there was no such person in this Case for Robert was alive when Benjamin dyed and Mary could not then take as Heir of his Body for Nemo est haeres viventis like the Case of 2 Cro. 590. Vaugh. 272. Pell and Brown viz. Brown had Issue William and Thomas he devises Land to his youngest Son Thomas and his Heirs and if he dye living William then to William and his Heirs Thomas did dye without Issue living William and it was adjudged that if those Words Living William had been left out of the Will Thomas would have a Fee Tail which he might have docked by a Common Recovery but by reason of those Words he had only a limited Fee because the Words viz. If he dyed without Issue are not indefinite to create a Tail but are restrained to his dying without Issue Living William which is a limited Fee and his Estate being determined William then had a Fee but if he had died before the Contingency happened viz. in the Life time of Thomas and then Thomas had dyed without Issue the Heirs of William would not have an Estate in Fée for the Reasons aforesaid If therefore nothing vested in Benjamin Wharton nor in Mary his Sister then the Land descends to Augustine Smith as Heir at Law to Elizabeth who was Heir to the Testator and so the Plaintiff hath a good Title Ex parte Def. Newdigate Serjeant contra Here is only an Estate for years in the Sister of the Testator and an Estate in Fee presently vested in Benjamin Wharton and he relyed upon Boraston's Case where the Father having Issue Humfry and Henry devised to his Executors till Hugh his Grandson the Son of Henry should be of Age and then to him in Fée it was there adjudged that the Executors had a Term till Hugh might have attained his full Age and that though he dyed at the Age of nine years yet the Remainder did immediately vest in him in possession upon the death of his Grandfather and that by his dying without Issue the Lands did descend to his Brother So here the Fee descends to Benjamin Wharton in possession and he dying without Issue and within Age the Land shall then descend to his Sister and Heir The like Iudgment was given in the Case of Taylor and Wharton about 12 years since and in Dyer 124. a. A Devise to his Wife till his Son shall be of the Age of 24 years then to the Son in Fee and if he die before 24 years without Issue then to the Wife for Life the Remainder to A. c. The Testator dyed 2 Leon. 11. pl. 16. Dyer 354. a. it was adjudged that the Son had a Fee simple presently for an Estate tail he could not have till he was 24 years old and after the death of his Father there was no particular Estate to support that Estate in the Remainder till he should come to the Age of 24 years so that he took by descent immediately So here a Feé vested in Benjamin presently and he being dead within Age Mary may take as Heir however when she is of Age she shall take as Heir of the Body of Robert by way of executory Devise arising out of the Estate of the Devisor Stiles 240. Owen 148. which needs no particular Estate to support it as in case of a Contingent Remainder for before Mary was of Age Robert her Father was dead and so she might well take Trin. 19 Car. 2. in B. R. Snow versus Cutler Rot. 1704. North Chief Iustice Curia Favourable distinctions have béen always admitted to supply the meaning of Men in their last Wills and therefore a Devise to A. till he be of Age then to B. and his Heirs this is an Estate for years in A. with a Remainder in Feé to B And if such a Devise to A. who is also made Executor or for payment of Debts it shall be for a certain Term of years viz. for so long as according to computation he might have attained that Age had he lived Contingent Remainders are at the Common Law and arise upon Conveyances as well as Wills one may limit an Estate to A. the Remainder to another and so it may be by Devise if the intent of the Parties will have it so But as at the Common Law all Contingent Remainders shall not be good so in Wills no such latitude is given as if none could be bad they are subject to the same Fate in Wills as in Conveyances In this Case Elizabeth had a Term till Benjamin Wharton be of Age for she is Executrix she was likewise Heir at Law to the Devisor and this Land had gone to her had it not béen for this Will so that 't is plain the Testator never intended that a Fee-simple should vest in her but somewhere else for he could never intend the Descent of the Inheritance to that person to whom he had devised the Term. It has beén argued that Mary is Heir at Law to Benjamin as well as Heir of the Body of Robert and so if she can take either way 't is good but to make her Heir to Benjamin 't is necessary that the Estate vest in him before he comes to 21 years and for that Boraston's Case was much relyed on which was also said not to differ from this at the Barr that an Estate passes to Benjamin Wharton in praesenti and that there was no Incapacity for Mary to take by way of Executory Devise as was urged on the other side and therefore why should she not take by way of Executory Devise as Heir of the Body of her Father or at least as Heir of Benjamin her Brother An Executory Devise needs no
particular Estate to support it for it shall descend to the Heir till the Contingency happen 't is not like a Remainder at the Common Law which must vest eo instanti that the particular Estate determines but the Learning of Exeecutory Devises stands upon the Reasons of the old Law wherein the intent of the Devisor is to be observed For when it appears by the Will that he intends not the Devisee to take but in futuro and no disposition being made thereof in the mean time it shall then descend to the Heir till the Contingency happen but if the intent be that he shall take in praesenti and there is no incapacity in him to do it he shall not take in futuro by an executory Devise Sid. 153. pl. 2. A Devise to an Infant in ventre sa mere is good and it shall descend to the Heir in the mean time for the Testator could not intend he should take presently he must first be in rerum natura 3 Co. 20. a. 1 Inst 378. a. If an Estate be given to A. for Life the Remainder to the right Heirs of B. this is a contingent Remainder and shall be governed by the Rules of the Law for if B. dye during the Life of A. 't is good but if he survive 't is void because no Body can be his right Heir whilst he is living and there shall be no descent to the Heir of the Donor in the mean time to support this contingent Remainder that so when B. dies his right Heirs may take In this Case a Fée did vest in Benjamin presently and therefore after his death without Issue the Defendant is his Heir and hath a good Title if not as Heir at Law yet she may take by way of Executory Devise as Heir of the Body of her Father which though it could not be whilst he was living because nemo est haeres viventis yet after his death she was Heir of his Body and was then of Age at which time and not before she was to take by the Will That Elizabeth the general Heir had only an Estate for years till Benjamin should or might be of Age And so by the Opinion of the whole Court Iudgment was given for the Defendant Evered versus Hone. SPecial Verdict in Ejectment wherein the Case was thus viz. A Man hath Issue two Sons Thomas his eldest and Richard his youngest Son Thomas hath Issue John Richard hath Issue Mary The Father devised Lands to his Son Thomas for Life Constructi-of Words in a Devise and afterwards to his Grandson John and the Heirs Males of his Body and if he die without Issue Male then to his Grandaughter Mary in Tail and charged it with some Payments in which Will there was this Proviso viz. Provided if my Son Richard should have a Son by his now Wife Margaret then all his Lands should go to such first Son and his Heirs he paying as Mary should have done Afterwards a Son was born and the Question was whether the Estate limited to Thomas the eldest Son was thereby defeated And the Court were all clear of Opinion that this Proviso did only extend to the Case of Mary's being intituled and had no influence upon the first Estate limited to the eldest Son Anonymus IN the Exchequer Chamber before the Lord Chancellor Executor of an Executor de son tort not liable at Law the Lord Treasurer and two Chief Iustices the Case was thus viz. The Plaintiff had declared against the Defendant as Executor of Edward Nichols who was Executor of the Debtor The Defendant pleads that the Debtor died intestate and Administration of his Goods was granted to a Stranger absque hoc that Edward Nichols was ever Executor but doth not say or ever administred as Executor for in truth he was Executor de son tort The Plaintiff replies that before the Administration granted to the Stranger Edward Nichols possessed himself of divers Goods of the said Debtor and made the Defendant Executor and dyed and the Defendant demurred and Iudgment was given for the Plaintiff but reversed here for an Executor of an Executor de son tort is not lyable at Law though the Lord Chancellor said he would help the Plaintiff in Equity But here Administration of the Goods of the Debtor was granted before the death of the Executor de son tort so his Executorship vanished and nothing shall survive The Lady Wyndham's Case IF Flotsam come to land and is taken by him who hath no Title the Action shall not be brought at the Common Law and no Proceedings shall be thereon in the Court of Admiralty for there is no need of Condemnation thereof as there is of Prizes By the Opinion of the whole Court of Common Pleas. Rose versus Standen Action where misconceived by the Plaintiff and Verdict against him no Barr to a new Action IN Accompt for Sugar and Indigoe the Defendant pleaded that the Plaintiff brought an Indebitatus Assumpsit a quantum meruit and an insimul computasset for 100 l. due to him for Wares sold to which he pleaded Non assumpsit and that there was a Verdict against him and then averrs that the Wares mentioned in that Action are the same with those mentioned here in the Action of Accompt The Plaintiff demurred and it was said for him that he had brought his former Action on the Case too soon for if no Accompt be stated the Action on the Case on the Insimul computasset will not lye and so the former Verdict might be given against him for that Reason Ex parte Def. But on the contrary the Defendant shall not be twice troubled for the same thing and if the Verdict had been for the Plaintiff that might have been pleaded in Barr to him in a new Action Curia 2 Cro. 284. But the Court were of another Opinion that this Plea was not good and that if the Plaintiff had recovered it could not have been pleaded in Barr to him for if he misconceives his Action and a Verdict is against him and then brings a proper Action the Defendant cannot plead that he was barred to bring such Action by a former Verdict Antea Putt and Roster Postea Rosal and Lamper Ante. because where 't is insufficient it shall not be pleaded in Barr as in Debt upon Bond the Defendant pleaded another Action upon the same Bond and the Iury found Non est factum the Entry of the Verdict was that the Defendant should recover damages eat inde sine die but not quod Querens nil capiat per Breve so no Iudgment to barr him 2 Cro. 284. But pending one Action another cannot be brought for they cannot both be true If no Accompt be stated the Action on the Case upon an Insimul computasset would not lye the Insimul computasset implies an Accompt and upon Non assumpsit pleaded the Defendant might have given payment in Evidence and for that
Nomen collectivum and if twenty Breaches had been assigned he still counts de placito quod teneat ei Conventionem inter eos fact ' And of that Opinion was the Court and that the Breach being of all three Covenants the Recovery in one would be a good Barr in any Action afterwards to be brought upon either of those Covenants Parrington versus Lee. INdebitatus Assumpsit Limitation of personal Actions only extends to accompt between Merchants Mod. Rep. 268. 2 Sand. 125 127. Pl. Com. 54. for Mony had and received to the use of the Plaintiff a quantum meruit for Wares sold and an Insimul computasset c. The Defendant pleads the Statute of Limitations viz. non assumpsit infra sex annos The Plaintiff replyed that this Action was grounded on the Trade of Merchants and brought against the Defendant as his Factor c. The Defendant rejoyns that this was not an Action of Accompt and the Plaintiff demurred for that this Statute was made in restraint of the Common Law and therefore is not to be favoured or extended by Equity but to be taken strictly and that if a Man hath a double remedy he may take which he pleaseth and here the Plaintiff might have brought an Action of Accompt or an Action on the Case grounded on an Accompt But Baldwyn Serjeant insisted that the Declaration was not full enough for the Plaintiff ought to set forth that the Action did concern Merchants Accompts and that the Replication did not help it The Court were of another Opinion for that it need not be so set forth in the Declaration because he could not tell what the Defendant would plead so that supposing him to be within the Saving of the Act his Replication is good and 't is the usual way of Pleading and no departure because the Plea of the Defendant gives him occasion thus to reply But the Saving extends only to Accompts between Merchants their Factors and Servants and an Action on the Case will not lie against a Bayliff or Factor where Allowances and Deductions are to be made unless the Accompt be adjusted and stated as it was resolved in Sir Paul Neals Case against his Bayliff Where the Accompt is once stated as it was here the Plaintiff must bring his Action within six years but if it be adjusted and a following Accompt is added in such case the Plaintiff shall not be barred by the Statute Mod. Rep. 71. because 't is a running Accompt but if he should not be barred here then the Exception would extend to all Actions between Merchants and their Factors as well as to Actions of Accompt which was never intended and therefore this Plea is good and the Saving extends only to Actions of Accompt whereupon Iudgment was given for the Defendant Astry versus Ballard In Banco Regis Principals in Execution the Bail are lyable 1 Ventris 315 THE Defendant became Bail for six persons against whom the Plaintiff got a Iudgment and two were put in Execution the Plaintiff afterwards brought a Scire Facias against the Bail who pleaded that two of the Principals were taken in Execution before the Scire Facias brought and whether the Bail was not discharged thereby was now the Question It was agreed that if five had surrendred themselves after Iudgment 2 Cro. 320. 1 Roll. 897. yet the Bail had been lyable but are not so if the Plaintiff as in this Case hath once made his Election by suing out Execution against the Principals and thereupon two are taken and in Custody Before the Return of the second Scire Facias they have Liberty by the Law to bring in the Principals but the Plaintiff having taken out Execution he hath made it now impossible for the Bail to bring them in to render themselves But Sypmson argued that the Bail was not discharged for he ought to bring in the other four or else he hath not performed his Recognizance and so it was adjudged by the Court Sid. 107. for the Law expects a compleat satisfaction The like Resolution was in this Court between Orlibear and Norris Steed versus Perryer IN a Special Verdict in Ejectment the Case was this Republication makes it a new Will viz. Robert Perryer being seised in Fee of the Lands in question had Issue two Sons William his eldest and Robert his youngest Son and being so seised he devises these Lands to his youngest Son Robert and his Heirs Robert the Devisee dies in the Life time of his Father Jones 135. 1 Ventris 341 Mod. Rep. 267. and leaves Issue a Son named Robert who had a Legacy devised to him by the same Will The Grandfather afterwards annexed a Codicil to his Will which was agreed to be a Republication and then he expresly publishes the Will de novo and declared that his Grandson Robert should have the Land as his Son Robert should have enjoyed it had he lived And whether the Grandson or the Heir at Law had the better Title was the Question Pemberton and Maynard Serjeants argued for the Title of the Plaintiff who was Heir at Law That if a Devise be to S. and his Heirs if S. dye living the Devisor the Heir shall take nothing because no Estate vested in his Ancestor so if a Devise be to the Heirs of S. after his decease the Heir shall take by Purchase for he cannot take as Heir for the Reason aforesaid By the death of Robert the Son the Devise to him and his Heirs was void and the annexing a Codicile and Republication of the Will cannot make that good which was void before if it cannot make it good then the Heir cannot take by Purchase and by descent he cannot take for his Ancestor had no Estate and therefore he shall have none Besides this is not a good Will within the Statute which requires it to be in Writing Now the Devise by the written Will was to the Son and the Republication to the Grandson was by Words and not in Writing so that if he cannot take by the Words of the Will he is remediless and that he cannot take as Heir because his Ancestor dyed in the Life time of the Testator Moor 353. Cro. Eliz. 243. Cro. Eliz. 422. Moor 353 404. Skipwith and Barrel on the other side That the new Publication makes it good for it makes a new Will in Writing and it shall take according to the Publication which makes it have the effect of a new Will 'T is true Deeds shall not be extended father than the intent and meaning of the Parties at the time of the Delivery but Wills are to be expounded by another Rule therefore though by the death of the Son the Will was void yet by the Republication it hath a new Life 1 Roll. Abr. 618. 5 Co. 68. 8 Co. 125. The Chief Justice Wyndham and Atkins Iustices were of Opinion for the Grandson against the Heir at Law viz. That the Republication made it a
Habens legale jus titulum need not shew what Title the disturber had after Verdict 213 In a Bond to pay 40 l. when an Accompt is stated by two Attornies to be chosen between the Parties 't is a Covenant and not a solvendum 266 Breach is assigned relating to three Covenants and concludes sic Conventionem fregit 't is good 311 Where an Agreement to pay will amount to a Covenant 269 Covenants reciprocal cannot be pleaded in bar to each other 34 75 76 309 Breach where assigned and not necessary to aver performance on the part of the Plaintiff 309 Court Inferiour the cause of Action must arise within the Jurisdiction 30 Judgment therein arrested because the Damages were laid to 30 l. 101 102 For not saying that the Jurors were electi ad triand ' 102 Taliter processum fuit and the proceedings not set forth at large well enough in a Plea but not in a Writ of Error 102 195 Vi armis contra pacem whether good or not 102 Cannot hold Plea for work done without the Jurisdiction though the Promise be made within 141 Cause of Action must appear to be within the Jurisdiction to oust the Courts above 197 Where it doth not appear that the Court was held either by Grant or Prescription good 197 198 If the cause of Action doth not appear to be within the Jurisdiction though there is a Judgment recovered below yet an Action of Trespass will lye and false Imprisonment upon the taking out of that Judgment 197 If upon Evidence it appear that the cause of Action did arise extra Jurisdictionem the Plaintiff must be non-suit 273 If Jurisdiction be admitted in pleading and Verdict and Judgment thereon t is too late for a Prohibition Ibid. Court Ecclesiastical In what Case a Bishop shall administer an Oath in Temporal Matters 118 Custom One cannot be pleaded in bar to another 105 In pleading it must be strictly alledged 41 Where 't is a reasonable Custom for the Lord to have derelict Lands 107 D. Day Vide Plea WHere 't is excluded being alledged in the Declaration it makes the Plea ill 146 'T is but punctum temporis and of no consideration in the Law 281 Release of all demands usque 26 April a Bond dated that day is not released 281 Debt Upon the Sheriffs Bond will be good though the Statute be not pleaded 36 Will lye upon the Contract where the whole Term is assigned 174 175 176 Whether it will lye for a Fine set by a Steward for 't is ex quasi contractu 230 It must be upon the Contract or ex quasi contractu 262 Deed. Where 't is lost the Party must make Oath of it to entitle himself to a Bill in Equity to have it performed in Specie 173 Demand Must be made where an Interest is to be determined 264 Devise To a Man and his Heirs if the Devisee die in the Life time of the Devisor his Heir takes nothing 313 Republication makes it a new Will ibid. To the Heir at Law makes a Limitation and not a Condition 7 To an Infant in ventre sa mere if there is a sufficient description of him 't is good 9 Where the word paying makes a Fee where not 26 To him till he be of Age then to him in Fee he dyed within Age yet a Free-hold vested in him presently 289 To him in Fee when of Age if he dye before then to the Heirs of the Body of R. and their Heirs he died living R. within Age his Sister and Heir shall take by way of Executory devise 289 Executory devise how it differs from a contingent Remainder at Common Law ibid. Construction of words therein 290 Departure From his Plea 31 Disability By a Statute where it ought to be removed by the Party to enable himself to execute an Office 299 Discharge By Parol good before the breach of promise but not afterwards 259 Discontinuance Where amendable 316 In pleading the Plaintiff declared of taking several things the Defenant justifies as to part and saith nothing of the residue 259 In the Adjournment of a Court where a day certain is not given 59 Distress Cannot be of Sheaves of Corn in Shocks for Rent 61 Distribution Shall be equally made amongst the Children of the whole and half Blood 204 205 206 Disturbance Coactus fuit to pay is a sufficient Disturbance 55 E. Escape THE Plaintiff declared upon Process in an Inferiour Court and the Bond was not made infra Jurisdictionem the Action would not lye 29 30 Debt thereon lies against the Warden of the Fleet as Superior where the Grantee for Life is insufficient 119 After an Escape the Plaintiff may have a Capias ad satisfaciendum or Scire facias at his Election 136 Whether it will lye against the Sheriff for taking insufficient Bail 181 Election In disjunctive Conditions where the Election is in the Obligor 201 304 'T is at the Plaintiffs Election to have a Ca. Sa. or Scire facias after an Escape 136 Enclosure Where a Custom is good to Enclose in a Common Field 105 Entry Not necessary to avoid an Estate in case of a Limitation 7 Error Where a Writ of Error will lye upon a Fine in the Old Bayly 219 Error in Fact cannot be assigned in the Exchequer-Chamber 194 If one be dead after the Judgment he must be named in a Writ of Error 285 Where a Judgment shall be avoided by a Plea without a Writ of Error 276 Estate Where the word Body makes an Estate for Life and no Tail 16 Estoppel Good by a Fine levied by a Remainder man in Tail 90 No Uses can be declared of a Fine by Estoppel 90 One who has no Estate levies a Fine 't is good by Estoppel 115 Evidence A Decree in Chancery or Sentence in in the Ecclesiastical Court read as Evidence of the fact 231 232 Excuse If one Man doth not perform his Covenant 't is no Excuse for the breach on the other side 75 76 What is a good Plea by way of Excuse and what not 27 28 29 Executor De son tort cannot retain 51 Where the Judgment shall be de bonis Testatoris 108 What is requisite to make an Executor 147 What must be done when he refuseth Ibid. De son tort where he may be of a Term but not of a Term in futuro because he cannot enter 175 Cannot plead non detinet where the Testator could not plead nil debet 266 Executor of an Executor de son tort where not liable at Law 293 294 Where he pleads a Judgment kept on Foot by fraud 36 Explain A Man grants Tenementa praedicta then follows totum quicquid habet whether these subsequent words shall explain or enlarge the Grant 112 113 c. Execution Payment of the Mony to the Marshal the Defendant may be taken again in Execution at the Suit of the Plaintiff 212 213 Executory Decree Is of no force in Equity 232 Existen
be in an Act of Parliament to restrain the power of the Courts at Westminster 128 Negative pregnant 138 Negative Plea that three did not such a thing it must be said nec eorum aliquis 284 285 Non Obstante Where it makes a Grant good 107 Where a general Non obstante will not dispense with a particular Statute 261 Notice Where the Agreement is that it shall be in writing it must be so pleaded 268 Where 't is made to the Testator alone it shall not be personal but is good if given to the Executor 268 269 O. Oath EX Officio lawful 118 Where it ought to be made of the loss of a Deed to entitle a Man to a Bill in Equity 173 Office and Officer Grant thereof to two and the Survivor one surrenders and another is admitted the benefit of Survivorship is gon 95 96 Of the Warden of the Fleet not to be granted for years 120 Where a person recomended proves insufficient the recommender shall be liable 121 In an Office of Trust there shall be no Survivorship 260 Officer excusable for executing an erroneous Process 196 Ordinary When his Power began 148 Outlary Pleaded in Disability to an Information and good 267 268 Where it needed not to be pleaded sub pede sigilli being in the same Court 267 P. Parish HOW it differs from a Vill 237 Pardon Where nothing vests but by Office found a Pardon restores the Party 53 Where the thing it self is pardoned and the consequence not 52 Parliament Where the time of the Session is misrecited and yet good 241 Where the Court ought to take notice of the commencement of a private or general Act 241 Difference between an Adjournment and a Prorogation 242 Partners The Action cannot be brought against one without setting forth the death of the other 280 If Judgment be against one the Goods of the other may be taken in Execution ibid. Paying In the Case of an Heir is not a Condition but a Limitation 286 Place Where it shall be intended not being laid in the pleadings 304 Pleas and Pleading What the Parties have admitted in pleading shall be good though the Jury find otherwise 5 Shall not afterwards be assigned for Error 193 194 Pleading of a Grant of a Reversion without hic in Curia prolat ' whether good or not 19 In Dower that the Demandant ought to have Judgment de tertia and doth not say parte and yet good 17 18 19 Award nullum fecerunt arbitrium de praemissis whether good without adding nec de aliqua parte 27 28 29 Plea to a Bond not good 33 A Judgment ultra quod no Assets where good 36 Estoppel you must relie upon it and not conclude with a Traverse 37 38 One promise in discharge of another where good or not 43 44 Of an accord in must be averred to be executed in all points 43 Replication where the Heir pleads a Settlement in Tail and a Lease for 99 years and that he had not Assets praeter the Reversion a general Replication of Assets is good because the praeter is idle 50 51 Justification in Trespass for taking corrupt Victuals held good 56 Justification by Arrest upon process out of an Inferiour Court 58 59 Justification by the Defendant where he must shew the Commencement of his Estate or not 70 71 Where 't is incertain 76 Touts temps prist not good after Imparlance 62 Profert hic in Curia where it must be pleaded formally 77 78 It must be pleaded when the Title is by Deed either as party or privy 64 De injuria propria sua where a Servant is Defendant 't is good without a Traverse 68 Plea where 't is naught with a Traverse ibid. Where the Defendant may plead any thing which amounts to a performance 139 Where the Defendant was charged with receiving 80 Pigs of Lead and he saith that he was not Receiver but omits aliquam partem inde the Plea was ill 146 Hoc paratus est verificare where good or not ibid. The Defednant was charged as Bayliff 1 Martii he saith he was not from the 1st of March and so excludes the day 146 In Covenant for not Repairing the Defendant pleads recuperavit generally and held good after Verdict 176 Affirmative Plea ought to be particular as if the Defendant pleads a Conveyance made he must shew what 239 Of another Action depending for the same Cause in another Court 246 Where good though it amounts to the general Issue 274 275 276 277 278 Argumentative Plea where good 276 Negative Plea viz. that three did not such a thing the Defendant must say nec eorum aliquis 284 Otherwise in an affirmative Plea ibid. Plea puis darrein Continuance must be certified as part of the Record of Nisi Prius 307 Non damnificatus generally no good Plea where the person and Lands are to be indempnified 305 Where a Judgment shall be avoided by a Plea without bringing of a Writ of Error the party being a Stranger to it 308 Prescription Not to be pleaded against another without a Traverse of the first 104 Must be alledged with a Seisin in Fee and not for Life 318 To a Modus where good 320 Presentation The King being entituled by the Symony of the Patron presents though the Symony be pardoned the Presentee shall not be removed 52 53 54 Between three by turns they are Tenants in Common of the Advowson and one may grant the next Avoidance the Church being full 97 How it must be pleaded tempore pacis 184 185 Possibility A Grant made thereof and good 106 107 By an Executor before Probate is but a Possibility and yet good 108 Priviledge Will not extend to a Case of necessity 182 Of a Serjeant at Law 296 Of an Attorny of the Kings Bench 181 Process Where an Action will not lie against the Defendant for doing a thing in Execution of the Process of Law 244 Prohibition To the Bishops Commission to set Rates upon the Parishioners to repair the Church 8 Prohibition printed in English and dispersed a Crime fit to be punished 119 Not granted for a Rate for building of a Church 222 223 Where it shall be granted at any time 273 Where a Sentence of Divorce was intended to adnul a Marriage 314 Upon a Suggestion of Excommunication because he refused to accuse himself 278 Power Where 't is coupled with an Interest 't is assignable 317 Promise Where they are mutual the performance need not be averred 33 34 Purchase Where the Heir takes by Purchase the Ancestor must depart with his whole Fee 208 Where the Heir shall take by Purchase and where by Descent 286 Q. Quare Impedit REal Mainpernors must be returned upon the Summons Pone and Grand Cape if the disturber do not appear and not John Doe and Richard Roe 264 265 Que Estate Where 't is pleadable 143 144 R. Rates FOR building of a Church shall be set by the Parishioners 222 Recital Where a Title is set