such power nay if he have Children they must be living at his death Further by these Provisoes if the Contingencies do happen he hath but a power to declare the Vses he hath no Interest in him at all Litt. Sect. 463. It is one thing to have a power or possibility of limiting an Interest another to have an Interest vested 7 Rep. 11. Moor's Reports 366. about the delivery of a Ring where they hold that if it had been to have been done with his own hand it had not been forfeited The case of Sir Edward Clere is different from ours for if a man make a feoffment to the use of his last Will or to the use of such persons as shall be appointed by his last Will in this case he remains a perfect owner of the Land But if a man makes a Conveyance with power to make Leases or to make an Estate to pay Debts he hath here no Interest but a naked power The Duke of Norfolk's case is full in the point A Conveyance to the use of himself for life the Remainder to his Son in Tail with power to revoke under Hand and Seal adjudged not forfeited and yet he had a power to declare his mind as in our case Pagett's case Moor 193 194. Keeling If this way be taken a man may commit Treason pretty cheaply Twisden Whoever hath a power of Revocation hath a power of Limitation The reason is because else the feoffées would be seized to their own Vse Sir William Shelly's case in Latch Twisden There is no difference betwixt the Duke of Norfolk's case and this only here it is under his hand writing and there under his proper hand writing Afterward Term. Pasch 23 Car. 2. 1671. the Court delivered their Opinions Hales being then Chief Iustice Morton I conceive the Iudgment in the Common-Pleas is well given As for the first point whether this Conveyance made by Sir Simon Mayn be fraudulent or not the Counsel themselves have declined it and therefore I shall say nothing to it For the second I conceive no larger Interest is forfeited then during the Life of the Father If it be objected that the Father had by this Proviso jus disponendi I answer it is true he had a power if he had been minded so to do but it was not his mind and Will Now animus hominis est ipse homo but he must not only be minded so to do but he must declare his pleasure Hobart saith if a man will create a power to himself and impose a Condition or Qualification for the Execution of it it must be observed Now here is a personal and individual power seated in the heart of a man And it seems to me a stronger case then that of the Duke of Norfolk put in Englefield's case where yet the Condition was not given to the King by the Statute of Hen. 8. There was a later case adjudged in Latch betwéen Warner and Hynde a case that walked through all the Courts in Westminster-hall there by reason of the ipso declarante it could not be forfeited Rainsford I hold it is not forfeited My reason is because the Proviso is at an end and determined for when he dyed and made no Will there 's an end of the Proviso The altering of the old Trust is to be done by Sir Simon Mayn and it is inseparable from his person nothing can be more inseparable then a mans Will Moor 193. Twisd I am of the same Opinion Hales was of the same Opinion that nothing was forfeited but during Sir Simon 's life The Proviso he said did not create a Trust but potestatem disponendi which is not a Trust He said he did not understand the difference betwéen the Duke of Norfolk's case and this Accordingly the Iudgment was affirm'd In a cause wherein one Aston was Attorney Keeling said That a man may discontinue his Action here before an Action brought in the Common-Pleas But if he do begin there and then they plead another Action depending here and then they discontinue I take it the Attorney ought to be committed for this practice Twisden When I was at the Bar Error was brought and Infancy assigned when the Man was thirty years old and the Attorney was threatned to be turned out of the Roll. Serjeant Newdigate moved for a Certiorari to remove an Indictment hither from Bedford against several Frenchmen for Robbery Keeling Will it remove the Recognisances there to appear Twisden I never knew such a motion made by any but the King's Attorney or Solicitor Rainsford There is no Indictment yet before a Iudge of Assise Keeling You may have a Certiorari but it must not be delivered till the Indictment be found and then the Iudge hath the Prosecutors there and may bind them over hither and so the Trial may be here Keel A Iury was never ordered to a view before their appearance unless in an Assise Twisd Neither shall you have it here but by consent Nosworthy versus Wyldeman THe Plaintiff declares in an Indeb Assumpsit that the Defendant was endebted to him in 50 l. for so much money received of the Plaintiff by one Thomas Buckner by the appointment and to the use of the Defendant After a Verdict for the Plaintiff it was moved in Arrest of Iudgment that the Plaintiff could not have an Action for money received by the Defendant to the use of the Defendant But because it might be money lent which the Defendant received to his own use though he was to make good the value to the Plaintiff the Court will presume after a Verdict that it appeared so to the Iury at the Trial. For where a Declaration will bear two constructions and one will make it good and the other bad the Court after a Verdict will take it in the better sense And accordingly the Plaintiff had Iudgment Willams versus Lee. AN Action of Account It was prayed that the Court would give further day for giving the Account the matter being referred to Auditors Twisden The Auditors themselves must give further day Keeling The Auditors are Iudges whether there be a voluntary delay or not If they find the parties remiss and negligent they must certifie to the Court that they will not account Roberts Mariott MOved to discontinue an Action of Debt upon a Bond. Keeling We will not favour Conditions Ruled that the other side should shew cause why they should not discontinue Buckly versus Turner ACtion upon the case upon a Promise The case was that Edward Turner Brother to the Defendant was endebted to the Plaintiff for a Quarters Rent and the Defendant in consideration that the Plaintiff mitteret prosequi praedictum Edwardum Turner so the words are in the Declaration promised to pay the money After a Verdict for the Plaintiff it was moved in Arrest of Iudgment that here is not any consideration for there is no loss to the Plaintiff in sending to prosecute c. nor any benefit but
out of it The Stat. de donis conditionalibus brought in a new Estate of Inheritance by way of entail now this Estate Tail in Gavelkind Lands hath been taken to descend to all the Brothers and the reason is because it is part of the Fee-simple though created de novo so Vses follow the nature of the Land The cases that have béen cited were not the Opinion of the Court but of them that argued Lamb. 47. saith that the Custom extends to Advowsons Commons Rent-charges as well as to Land It is objected that here must be a prescription I answer Gavel-kind Law is the Law of Kent and is never pleaded but presumed 7 Edw. 3. 38. Co. Litt. 175. 2 Edw. 4. 18. Co. Litt. 140. saith the Customs of Kent are of common right and if so then our Rent-charge will go of common right to all the Brothers Hales Rainsford and Wyld were of Opinion that the Rent ought to descend to all the Brothers according to the descent of the Land because the Rent is part of the profits of the Land and issues out of the Land and they gave Iudgment accordingly A man covenanted to stand seized to the use of the Heirs of his body Hales The Heir and the Ancestor are correlates and as one thing in the eye of the Law and that is the reason why a man shall not make his right Heir a Purchasor without putting the whole feé-simple out of himself If the Fathers Estate turns to an Estate for life there will be no question In the case of Bennet Mitford there did result an Estate for life to knit the Limitation to the original Estate Here 1. We are in the case of an Estate Tail and the Iudges use to go far in making such a Limitation good then 2. We are in the case of an Vse which is construed as favourably as may be to comply with the intention of the party This case is not as if he should have covenanted to stand seized to the use of the Heirs of the body of J. D. there the Covenantor would have had a Fee-simple in the mean time but the case is all one as if the Limitation had been to himself and the Heirs of his own body Vide the Earl of Bedford's case Twisden We must make it good if we can Cur ' advisare vult Austin Lippencott A Special Verdict Francis the Father was Tenant for life the Remainder in Fée to Francis the Son and by the Deed by which this Estate was thus settled 100 l. a year was appointed to be paid to Francis the Son during the Fathers life The Son releaseth to the Father all arrears of Rent Annuities Titles and Demands by virtue of that Indenture and the question was whether this Release passed the Inheritance as well as the Annuity Polynxfen I conceive this Release shall not pass any Estate in the Land and my reason is because there is no mention of the Land nor of any Estate therein The principal thing intended and expressed is the Annuity then the Release concludes to the day of the Release which doth manifest that he did not intend to Release any thing that was not to come to him till after the death of his Father It is true here is the word demand but that will not do it 3 Cro. 258. Then for the word Titles by Plowd 494. and 8 Rep. 153. it is where a man hath lawful cause to have that that another doth possess sometimes it is taken in a larger sense and then it doth include right Vpon construction of this Release I think it ought to be taken in the stricter sense and the intention of the party must guide the construction For where there are general words in the beginning and particular words afterwards the particular do restrain the general and so vice versa for enlargement he cited Hen Hanson's case 15 Car. 2. in this Court where a Release of all demands would not Release a Rent-charge by the Opinion of thrée Iudges against Twisden for that reason and because words in Deeds are to be taken according to common acceptation he cited 2 Rolls 409. In our case the general words of all Suits and Titles are limited and restrained to the Annuity and Title of that and shall not by a large construction be extended to any thing else Hales How hath the Inheritance gone Polynxfen The Grandchild has that Hales I think a Release of all demands will not extinguish a Rent but if it were all demands out of Land it were another thing It hath béen held over and over again that it does not extinguish and discharge a Covenant not broken But what say you to this Release of all Titles for it appears in express terms that the Son did not only release the arrears of the Annuity but the thing it self and not only so but all other Titles by virtue of that Deed suppose the case had been but thus the Father is Tenant for life the Remainder to the Son for Life the Son releaseth to his Father all the Title that he has by vertue of that Deed had not this passed the Sons Estate for life In the cases that you have cited it is allowed that a Release of all Titles will pass a right to Land He had a Title to the Annuity and a title to the Remainder now he releaseth the Annuity and all other Titles which he hath by that Deed or otherwise howsoever To hear Serjeant Maynard on the other side Wilson Robinson A Man deviseth all his Tenant-right Estate at Brickend and all that my Father and I took of Rowland Hobbs c. Levings I conceive that these words pass only an Estate for life for it is not mentioned what Estate he hath 1 Cro. 447 449. a Devise of all the rest of his Goods Chattels Leases Estates Mortgages Debts ready money c. and the Court held that no Fee passed and said it was a doubt whether any Estate would pass in that case but what was for years being coupled only with personal things Trin. 1649. Rot. 153. Jerman Johnson One devised all his Estate paying his Debts and Legacies now his personal Estate came but to 20 l. and his Debts were 100 l. there indeed all his real Estate passed because of the payment of his Debts And in our case the following particulars are but a description of the Land and contain no limitation of the Estate If a man deviseth black Acre to one and the Heirs of his body and also deviseth white Acre to the same person he hath but an Estate for life in white Acre though he hath a Fee-simple in the other for the word also is not so strong as if it had been in the same manner Moor 152. Yel 209. Weston contra I conceive an Estate of Inheritance doth pass for the word Estate comprehendeth all his Interest When a man deviseth all his Estate he leaves nothing in himself in that case
that he had cured her the consideration of the first promise being future and both promises found and entire damages given Twisd It is well enough for now it lies upon the whole Record whether he hath cured her or no if it had rested upon the first promise it had been nought And in the second promise there is an averment that he had cured her So that now after a Verdict it is help'd and the want of an averment is holpen by a Verdict in many cases Iudgement nisi c. Twisd If a man be in prison and the Marshal dye and the Prisoner escape there is no remedy but to take him again Twisd Pleas in abatement come too late after imparlance Hall Sebright AN Action of Trespass wherein the Plaintiff declared That the Defendant on the 24th of January did enter and take possession of his house and did keep him out of possession to the day of the exhibiting the Bill The Defendant pleads that ante praedict tempus quo sc c. the Plaintiff did licence the Defendant to enjoy the house until such a day Saunders The plea is naught in substance for a licence to enjoy from such a time to such a time is a Lease and ought to be pleaded as a Lease and not as a Licence it is a certain present Interest Twisd It is true 5 H. 7. fo 1. is That if one doth licence another to enjoy his house till such a time it is a Lease but whether it may not be pleaded as a Licence I have known it doubted Judgment nisi c. Coppin versus Hernall TWisden said upon a motion in arrest of Iudgment because an Award was not good that the Vmpirage could not be made till the Arbitrators time were out And if any such power be given to the Vmpire it s naught in its constitution for two persons cannot have a several Iurisdiction at one and the same time The Law allows the Defendant a Copy of the Pannel to provide himself for his challenges Fetyplace versus ACtion upon the Case upon a promise in consideration that the Plaintiff would affeerere instead of afferre c. it was moved in arrest of Iudgment Cr. 3 part 466. was cited Bedel Wingfield Twisd I remember districtionem for destructionem cannot be help'd so neither vaccaria instead of vicaria So the Court gave directions to see if it were right upon the Roll. Holloway THe Condition of a Bond for performance of Covenants in an Indenture doth estop to say there is no such Indenture but doth not estop to say there are no Covenants Keel The course of the Court is that if a man be brought in upon a Latitat for 20 l. or 30 l. we take the bail for no more but yet he stands bail for all Actions at the same parties suit otherwise if a stranger bring an Action against him Twisd They cannot declare till he hath put in Bail and when we take bail it is but for the sum in the Latitat perhaps 30 l. or 40 l. but when he is once in he may be declared against for 200 l. Smith versus Wheeler A Writ of Error was brought to reverse a Iudgment given in the Common Pleas upon a special Verdict in an Ejectione firmae The Iury found that one Simon Mayne was possest of a Rectory for a long term and having conveyed the whole term in part of it to certain persons absolutely he conveyed his term in the residue being two parts in this manner sc in trust for himself during life and afterwards in trust for the payment of the Rent reserved upon the original Lease and for several of his Friends c. Provided that if he should have any issue of his body at the time of his death then the trusts to cease and the Assignment to be in trust for such issue c. and there was another Proviso that if he were minded to change the uses or otherwise to dispose of the premisses that he should have power so to do by writing in the presence of two or more Witnesses or by his last Will and Testament They further find that he had Issue male at the time of his death but made no disposition pursuant to his power and that in his life time he had committed Treason and they find the Act of his Attainder The question was whether the rest of the term that remained unexpired at the time of his death were forfeited to the King The points made were two 1. Whether the Deed were fraudulent 2. Whether the whole term were not forfeited by reason of the trust or the power of revocation Pemberton argued that the Deed was fraudulent because he took the profits during his life and the Assignees knew not of the Deed of trust The Court hath in these cases adjudged fraud upon circumstances appearing upon Record without any Verdict the case that comes nearest to this is in Lane 42. c. The King against the Earl of Nottingham and others 2dly He argued that there was a Trust by express words and if there be a Trust then not only the Trust but the Estate is vested in the King by the express words of the Stat. of 33 Hen. 8. The King indeed can have no larger Estate in the Land then the person attainted had in the Trust and if this Conveyance were in Trust for Simon Mayne only during his life the King can have the Land no longer but he conceived it was a Trust for Simon Mayne during the whole term A Trust he said was a right to receive the profits of the Land and to dispose of the Lands in Equity Now if Simon Mayne had a right to receive the profits and a present power to dispose of the Land he took it to be a Trust for him and that consequently by his attainder it was forfeited to the King Coleman contra As for the matter of Fraud first there is no Fraud found by the Iury and for you to judge of Fraud upon Circumstances is against the Chancellor of Oxfords case 10th Rep. As for the Trust it must be agreed that if there be any either Trust or Condition by construction upon these Provisoes in Simon Mayne in his life between Mich. 1646. and the time of making the Act the Trust will be vested in the King but whether will it be vested in the King as a Trust or as an Estate For I am informed that it hath been adjudged between the King and Holland Styles Reports That if an Alien purchase Copy-hold Lands the King shall not have the Estate but as a Trust and the particular reason was because the King shall not be Tenant to the Lord of the Mannor Keeling The Act of Parliament takes the Estate out of the Trustees and puts it in the King Coleman But I say here is no Trust forfeitable By the body of the Déed all is out of him If a man makes a feoffment in Fée to the use of his
the Spiritual Court for Tyth-wood Barrell prayed a Prohibition suggesting that time out of mind they paid no small Tythe to the Vicar but that small Tythes by the Custom of the Parish were paid to the Parson Twisden If the Endowment of the Vicarage be lost small Tythes must be paid according to prescription Jordan versus Fawcett ERror of a Iudgment in the Common Pleas. An Action was brought against an Executor who pleaded several Iudgments but for the last Iudgment that he pleads he doth not express where it was entred nor when obtained Coleman held it well enough upon a general demurrer Twisden It is not good for by this plea he is tyed up to plead nothing but nul tiel record He might if the Iudgment had been pleaded as it ought to have been have pleaded perhaps obtent per fraudem And Iudgment was given accordingly Love versus Wyndham Wyndham UPon an issue out of Chancery the Iury find a special Verdict viz. That one Gilbert Thirle was seized of the Lands in question for three lives and did demise the same to Nicholas Love the Father if he should so long live that he being so possessed made his Will and devised them in this manner viz. to his Wife for her life and after her decease to Nicholas his Son for his life and if Nicholas his Son should dye without Issue of his body begotten then he deviseth them to Barnaby the Plaintiff Then they find that the Wife was Executrix and that she did agree to this Devise And whether this be a good Limitation to Barnaby or not is the question Jones I conceive it is a good Limitation to Barnaby I shall enquire whether a Termor having devised to one for life and after his death to another for life may go any further And secondly admitting that he may go further whether the Limitation in our case which is to begin after the death of the second without Issue of his body be good or no For the first point he said the reason given in Plo. Com. 519. in 8. Co. 94. why an Executory Devise of a term is good in Law is because the Law takes it as devised to the last man first and then afterwards to the first man without which transposition it is not good for if it should be a Devise to the first man first there would be nothing left for the last but a possibility which is not grantable over Now then if a man may devise a term after the death of another then he may devise it after the death of two other It is true this cannot be in Grants for they are founded upon Contracts and there must be a certainty in them according to the Rector of Chedington's case Now if a Devise may be good after the death of one or two it is all one if it be limited after the death of five or six Now that a contingency may be devised upon a Contingency I take it that the Authorities are clear 14 Car. 1. Cotton Herle 1 Roll 612. resolved by three Iustices Et Hill 9 Jac. Rot. 889. 2 Cr. 461. And for the case of Child and Bayly reported in 2 Cro. 459. and in Roll 613. I conceive it is not against our case for they held the Devise to be void not because it was a Contingency upon a Contingency but in respect of the remoteness of the possibility and because the term was wholly devised to a man and his Assigns So that by the express Authority of the two first cases and by the implication of this case I do think that a Devise to a man after such a manner is good provided that it do not introduce a perpetuity so that where there is not the inconvenience of a perpetuity though there are many Contingencies they are no impediment to the Devise Therefore where a Devise is upon a Contingency that may happen upon the expiration of one or more mens lives and where it is upon a Contingency that may endure for ever there is a great difference The reason of the Rector of Chedington's case was because of the uncertainty for in case of a grant of a term there is a great uncertainty but ours is in case of a Devise which is not taken in the Law by way of remainder 12 Ass 5. so that I conceive a Contingency may be limited upon a Contingency provided that it be not remote The second point is whether this Devise thus limited be a good Devise Now I conceive the limitation is as good as if it had been to his Wife for her life and after her death to Nicholas for life and after his death to Barnaby I agree that if these words if Nicholas dye without heirs of his body shall not be applied to the time of his death it will be a void Devise But the meaning is That if at the time of his death he shall have no Issue then c. Now that they must have such construction I prove from the words of the Will The limitation of the Remainder must be taken so as to quadrate with the particular Estate As if there be a Conveyance to one for life and if he dye without Issue to another this is a good Remainder upon Condition and the Remainder shall rest upon the determination of the particular Estate if the Tenant for life have no Issue when he dyeth but if a Man Convey to one and the heirs of his body and if he dye without Issue to another there it must be understood of a failer of Issue at any time because the precedent limitation goes further then his life But admitting there were no precedent words to guide the intention and that common parlance were against me yet if there be but a possibility of a good construction it shall be so construed and they may very well be understood of his dying without Issue of his body at the time of his death In Goodyer Clerk's case in this Court Trin. 12 Car. Rot. 1048. I confess it was adjudged that it should be understood of a failer of Issue at any time but in our case if you shall not understand it of a failer of Issue at the time of his death it cannot have any construction at all to take effect I think there are no express Authorities against me those that may seem to be so I will put and endeavour to give an answer to them As for Child Baylie's case Reports differ upon the reason of that Iudgment For Cro. says it was held to be a void Devise because it was taken if he dye without Issue at any time during the term But Sergeant Rolls goes upon another reason Rolls 613. there he says it is void because given absolutely to the Son and his Assigns before In Rolls first part 611. Leventhorp Ashly's case the Remainder there is said to be void because when he had devised the term to A. and the Heirs Males of his body it shall
go to the Executors of A. and the Remainder there was to begin upon his dying without Issue at any time The case of Saunders and Cornish will not come to ours for there were many limitations for life successively to persons not in being c. In the case cited 1st Report 135. of an Estate for life limited to one and to every heir successively an Estate for life the limitation was naught because it would make a perpetual Free-hold and no body would know where the absolute Estate should vest So he prayed Iudgment for the Plaintiff Coleman for the Defendant I conceive this to be a void limitation Mr. Jones would make this a middle case I shall discharge him of the first point though he has taken pains to argue it and I shall rest upon this That the limitation of a term after the death of a man without Issue of his body is void The case is put as a middle case to these two viz. If a man possessed of a Lease for years Devise it to I. S. for life the Remainder to J. N. for life the Remainder to J. G. for life these Remainders are good But if he do Devise to J. S. and the Heirs of his body the Remainder over this Remainder he admits to be void because it depends upon so remote a possibility as may never happen Now I conceive it is the same thing to limit it to one for life and if he dye without Issue then to another for life as to limit it to one and the Heirs of his body with a Remainder over He would tye it up from the ordinary and Legal Construction to issue at the time of his death If it be to be understood of dying without Issue at any time then Child Baylie's case and Cornishe's case are full Authorities in the point Vide 2 Cro. 459. Rolls 612 614. There Lessée for years deviseth to one for life and after to Wms. and his Assigns and if he dye without Issue then living the Remainder to I. G. This they say is good in case of a Fée-simple but they will not allow it in case of a term for years Now Mr. Jones would by Construction bring the words then living into our case The Legal Construction of the words dying without Issue is if there be a failer of Issue at any time to come In Pell Brown's case if the words then living had not been in the Will the case had not béen so adjudged Keeling You go up Hill a little Can Barnaby take so long as there is any Issue in being of Nicholas Jones He cannot Keeling Then Barnaby's Interest depends upon a Contingency that may never happen Jones I grant if Nicholas hath Issue at the time of his death that Barnaby shall never take but if he hath none he shall Keeling If I Devise Lands to A. for life and if he dye without Issue of his body to B. A. shall have an Estate Tail So in our case the words and limitation is the same though the Devisor having but a Lease for years there cannot be an Estate Tail of it yet he intended not that Barnaby should have any Estate as long as there were any Issue in being of Nicholas his body Twisden It appears to me upon the reason of the cases that have been cited that the Remainder to Barnaby must be void because of the remote possibility But then there will be a question to whom the Remainder of the term will go if Nicholas dye without Issue whether to the Executors of Nicholas or to the Executors of Doctor Love If A. Tenant for life of a term Devise it to B. for life the Remainder to C. for life the Remainder to D. for life I have heard it questioned whether these Remainders are good or not But it hath been held that if all the Remainder-men are living at the time of the Devise it is good if all the Candles be light at once good But if you limit a Remainder to a person not in being as to the first begotten Son c. and the like there would be no end if such limitations were admitted and therefore they are void And some Iudges are of the same Opinion to this hour If I Devise a term to A. for life after the death of A. his Executors shall not have it but it shall go to the Executors of the Devisor But if it be devised to A. generally without saying for life it shall go to his Executors after his death But a Devise for life vests in him only during his life and you may make a limitation over Keeling I take it that A. carries the whole term when devised to him for life because an Estate for life is larger then the longest term Twisden As a term for years doth admit of Remainders so it doth of Reversions if you will have it so and when he deviseth to A. during his life A. shall have it for his life but the Reversion shall be to the Devisors Executors But if he Devise it to A. for life and if he dye without Issue of his body the Remainder to B. what shall become of the Reversion then Keeling You start a new point Court You shall have our Iudgments this Term. Knowles versus Richardson ERror of a Iudgment in the Common Pleas in an Action upon the Case for obstructing a Prospect Sympson The stopping of a Prospect is no Nusance and consequently no Action on the Case will lie for it Aldred's Case 9th Report is express that for obstructing a Prospect being matter of delight only and not of necessity an Action will not lye Twisden Why may not I build up a Wall that another man may not look into my Yard Prospects may be stopt so you do not darken the light Iudgment nisi c. Twisden A man may be Indicted for Perjury in a Court-Baron Jones moved to have a Trial at Bar for Lands in Northumberland of 50 l. per annum Keeling It s a great way of off and never any Iury came from thence in your time Twisden But I have been of Councel in Causes wherein Trials have been granted at Bar for Lands there We have lost Cornwall no Iuries from thence come to the Bar and we shall lose Northumberland too The other side to shew cause Keeling upon a motion of Mr. Holt's said I have known many Attachments for Arresting a man upon a Sunday but still the Affidavit contained that he might have been taken on another day Twisd So for arresting a man as he was going to Church to disgrace him Term. Trin. 22 Car. II. 1670. in B. R. Parker VVelby AN Action upon the Case against a Sheriff for making a false Return The Plaintiff sets forth that one Wright was endebted to him in 60 l. and did promise to pay him and that thereupon a Writ was sued out against him directed to the Defendant being Sheriff of Lincolnshire who took him into his custody and after
Hales in that case said that upon a penalty you need not make a demand as in case of a nomnine poenae as if I bind my self to pay 20 l. on such a day and in default thereof to pay 40 l. the 40 l. must be paid without any demand Hales If a man cut and carry away Corn at the same time it is not Felony because it is but one Act but if he cut it and lay it by and carry it away afterwards it is Felony Hales If a Declaration be general Quare clausum fregit and doth not express what Close there the Defendant may mention the Trespass at another day and put the Plaintiff to a new Assignment But if he say Quare clausum vocat Dale fregit c. there the conclusion Quae est eadem transgressio will not help Fitz-gerard Maskall ERror of a Iudgment in the Kings Bench in Ireland the general Error assigned Offered 1. That the Eject was brought de quatuor molendinis without expressing whether they were Wind-mills or Water-mills Hales That is well enough The Presidents in the Register are so Secondly That it was of so many Acres Jampnor ' bruer ' not expressing how many of each Cur ' That hath always been held good It was then objected that the Record was not removed upon which it was ordered to stay Pemberton moved for a Prohibition to the Spiritual Court for that they cited the Minister of Mary-bone which is a Donative to take a faculty of Preaching from the Bishop Hales If the Bishop go about to visit a Donative this Court will grant a Prohibition But if all the pretence be that it is a Chappel and the Chaplain hired and the Bishop send to him that he must not Preach without Licence it may be otherwise Twisden Fitzherbert saith if a Chaplain of the Kings Free-Chappel keep a Concubine the Bishop shall not Visit but the King Hales Indeed whether there be all Ornaments requisite for a Church the Bishop shall not enquire nor shall he punish for not Repairing Originally Free-Chappels were Colledges and some did belong to the King and some to private men And in such a Chappel he that was in was entituled as Incumbent and not a Stipendiary To hear Counsel Moved by Stroud for a Prohibition to the Bishops Court of Exeter because they proceeded to the Probate of a Will that contained Devises of Lands as well as bequests of personal things Hales Their proving the Will signifies nothing as to the Land Stroud urged Denton's case and some other Authorities Hales The Will is entire and we are not advised to grant a Prohibition in such case Hales It is the course of the Exchequer in case of an Outlawry to prefer an Information in the nature of a Trover and Conversion against him that hath the Goods of the party Outlawed Parsons Perns TWo Women were Ioyntenants in Fée One of them made a Charter of Feoffment and delivered the Déed to the Feoffee and said to him being within view of the Land Go enter and take possession but before any actual entry by the Feoffee the feoffor and feoffee entermarry And the question was whether or no this Marriage coming between the delivery of the Deed and the Feoffees Entry had destroyed the operation of the Livery within the view Polynxfen It hath not for the power and authority that the Feoffee hath to enter is coupled with an Interest and not countermandable in Fact and if so not in Law If I grant one of my Horses in my Stable nothing passeth till Election and yet the grant is not revocable so till attornment nothing passeth and yet the Deed is not revocable If the Woman in our case had married a Stranger that would not have been a revocation Perk. 29. I shall compare it to the case of 1 Cro. 284. Burdet versus Now for the interest gotten by the Husband by the Marriage he hath no Estate in his own right If a man be seized in the right of his Wife and the Wife be attainted of Felony the Lord shall enter and oust the Husband he gains nothing but a bare perception of profits till Issue had after Issue had he has an Estate for life Where a man that hath title to enter comes into possession the Law doth execute the Estate to him 7 H. 7. 4. 2 R. 2. tit Attornment 28 Ed. 3. 11. Bro. tit Feoffment 57. Moor fol. 85. 3 Cro. 370. Hales said to the other side you will never get over the case of 38 Ed. 3. My Lord Coke to that case saith that the Marriage without Attornment is an execution of the grant but that I do not believe for the attendance of the Tenant shall not be altered without his consent The effectual part of the Feoffment is Go enter and take possession Twisden Suppose there be two Women seized one of one Acre and another of another Acre and they make an exchange and then one of them marries before Entry shall that defeat the Exchange Hales That is the same case So Iudgment was given accordingly Zouch Clare THomas Tenant for life the Remainder to his first second and third son the Remainder to William for life and then to his first second and third son and the like Remainders to Paul Francis and Edward with Remainders to the first second and third son of every one of them William Paul Francis and Edward levy a Fine to Thomas Paul having Issue two Sons at the time Then Thomas made a Feoffment And it was urged by Mr. Leak that the Remainders were hereby destroyed Hales Suppose A. be Tenant for life the Remainder to B. for life the Remainder to C. for life the Remainder to a Contingent and A. and B. do joyn in a Fine doth not C's right of Entry preserve the contingent Estates If there had béen in this case no Son born the contingent Remainders had béen destroyed but there being a Son born it left in him a right of Entry which supports the Remainders and if we should question that we should question all for that is the very basis of all Conveyances at this day And Iudgment was given accordingly Term. Pasch 24 Car. II. 1672. in B. R. Monke versus Morris Clayton AN Action was brought by Monke against the Defendants and Iudgment was given for him They brought a Writ of Error and the Iudgment was affirmed Jones moved that the money might be brought into Court the Plaintiff being become a Bankrupt Winning ' This case was adjudged in the Common-Pleas viz. a man brought an Action of Debt upon a Bond and had a Verdict and before the day in Bank became a Bankrupt it was moved that that Debt was assigned over and prayed to have the money brought into Court but the Court refused it Coleman We have the very words for us in effect for now it is all one as if Iudgment had been given for the Assignées of the Commissioners Twisden How can we
not Repair but if you will discharge your self you must do it by prescription or ratione tenurae and say that such an one ratione tenurae or such part of the Parish hath always used time out of mind c. Anonymus AN Action of Debt upon a Bond the Condition Whereas one Bardue did give by his Will so much if he should pay it such a day c. The Defendant pleads bene verum est he did give him so much by his Will and Testament but he revoked that and made another last Will. The Court said he was estopped to plead so Hales It doth not appear when the Bond was made and it shall be intended to be made after the parties death Iudgment pro Querente Deereing versus Farrington AN Action of Covenant declaring upon a Deed by which the Defendant assignavit transposuit all the money that should be allowed by any Order of a Forreign State to come to him in lieu of his share in a Ship Tompson moved that an Action of Covenant would not lye for it was neither an express nor implied Covenant 1 Leon. 179. Hales You should rather have applyed your self to this viz. whether it would not be a good Covenant against the party as If a man doth demise that is an implied Covenant but if there be a particular express Covenant that he shall quietly enjoy against all claiming under him that restrains the general implyed Covenant But it is a good Covenant against the party himself If I will make a Lease for years reserving Rent to a Stranger an Action of Covenant will lye by the party for to pay the Rent to the Stranger Then it was said it was an Assignment for maintenance Hales That ought to have been averred Then it was further said that an Assignment transferring when it cannot transfer signifies nothing Hales But it is a Covenant and then it is all one as if he had covenanted that he should have all the money that he should recover for his loss in such a Ship Twisd seemed to doubt But Iudgment Lord Mordant versus Earl of Peterborough TRial at Bar the question was Whether the Earl of Peterborough was Tenant for life only of the Mannor of Mayden The Defendant did not appear the Plaintiff thereupon desired to examine his Witnesses that so he might preserve their Evidence Twisd When they do not appear what good will that do you for they will say you set up a man of straw and pull him down again There was a former Deed of entail with a power of revocation in it and after the Deed exhibited was made whereby the Estate was otherwise settled and there was a Ioynture to the present Lady and done by persons of great Learning in the Law The Revocation was to be by Deed under my Lords Hand and Seal in the presence of thrée Witnesses Now the question was whether this second Deed was a revocation in Law and an Execution of that power And the Court told the Counsel they should find it specially if they would but they refused Hales In 16 Car. Snape and Sturts case If there be a power of revocation and a Lease for years is made it doth suspend quoad the term but after it is good Then it hath been questioned formerly if there be such a power and the person makes a Lease and Release whether it was a Revocation But shall we conceive the learned Counsel in this case would have ventured upon an implicit revocation and not have made an express revocation So that you must be non-suit or find it specially But the issue being If he wee only Tenant for life he said he must go back to the Chancery to amend it for by the Deéd produced he hath an Estate for life and the Reversion in Fee Burgis versus Burgis In Chancery A Man having a long Lease settled it in Trust upon himself for life the Remainder to his Wife for life the Remainder to the first Son of their two bodies the Remainder to the second Son and so to the tenth Son And if they should have no Son or Sons then the Remainder to such Daughter and Daughters of their bodies c. The man and his wife died and left only a Daughter who preferred her Bill against the Trustees for the executing of this Remainder to her The question is whether this Remainder be a good Remainder or whether it be void And the Lord Keeper Finch held it was a void Remainder because it doth depend upon so many and such remote Contingencies for otherwise it would be a perpetuity And he said he would allow one Contingency to be good viz. that to the first Son though the first Son was not in esse at the time of his decease And he said he did deny my Lord Cokes Opinion in Leon. Lovells case which saith that in case of a Lease settled to one and the heirs males of his body when he dies the Estate is determined for he said it shall go to his Executors And he said there was the same case with this in this Court Backhurst versus Bellingham And he said that the Common Law did complain that this Court did encroach upon them whereas they are beholding to this Court for their rules in Equity as Formerly when Ecclesiastical persons made Leases a misnosmer would avoid them but Elsmere in his time would notwithstanding the misnosmer make them good And he cited a case in Dyer and Matthew Mannings case Leon. Lovell and Lampetts case and Child and Bailies case Another case in Chancery One mortgaged Lands then confest a Iudgment and died The Mortgagée buys of the heir the Equity of Redemption for 200 l. The Bill was preferred by the Creditor by Iudgment against the Mortgagée and Heir either to be let in by paying the Mortgage money or else that the 200 l. received by the heir might be Assets And the Court said that the Mortgagees Estate should not be stirred But it was left by my Lord to be made a case whether the two hundred pounds should be Assets in the hands of the heir Mosedell the Marshal of the K. B's Case A Trial at Bar An Action of Debt brought against Mosedell for the escape of one Reynolds The Plaintiff said he could prove that he was at London three long Vacations Twisd It is hard to put three Escapes upon the Marshal for he may be provided only for one and he cannot give in Evidence a Fresh pursuit but it must be pleaded Hales I always let them give in evidence a Fresh suit upon a Nil debet And Wild said it was generally done So they gave evidence of an Habeas corp ad test ' and that the Prisoner went down too long before-hand and stayed too long after the Assizes were done at Wells in Somerset-shire and that he went back threescore miles beyond Wells before he retorned again for London Hales If an Habeas Corpus be granted to bring a person into
pleaded A special Verdict that the Lands are Copyhold Lands and surrendred to the use of one for eleven years the Remainder for five years to the Daughter the Remainder to the right heirs of the Tenant for eleven years The eleven years expire the Daughter is admitted the five years expire And there being a Son and Daughter by one Venter and a Son by another Venter the Son of the first Venter dies before admittance and the Daughter of the first Venter and her Husband bring Trover for cutting down of Trees And the question was if the admittance of Tenant for years was the admittance of the Son in Remainder Levings I conceive it is and then the Son is seized and the Daughter of the whole blood is his heir and he cited 4 Rep. 23. 3 Cro. 503. Bunny's case Wyld The Estate is bound by the Surrender Hales If a man doth surrender to the use of John Styles till admitted there is no Estate in him but remains in the Surrenderor but he hath a right to have an admittance If a surrender be to J. S. and his heirs his heir is in without admittance if J. S. dies About this hath indeed been diversity of Opinion but the better Opinion hath been according to the Lord Coke's Opinion I do not see any inconvenience why the admission of Tenant for life or years should not be the admittance of all in Remainder for Fines are to be paid notwithstanding by the particular Remainders and so the Books say it shall be no prejudice to the Lord. Twisd I think it is strong that the admission of Lessee for years is the admission of him in Remainder for as in a case of possessio fratris the Estate is bound so that the Sister shall be heir so here the Estate is bound and goes to him in Remainder Hales I shall not prejudice the Lord for if a Fine be assessed for the whole Estate there is an end of the business but if a Fine be assessed only for a particular Estate the Lord ought to have another If a surrender be to the use of A. for life the Remainder to his eldest Son c. or to the use of A. and his heirs and then A. dies the Estate is in the Son without admittance whether he takes by purchase or descent And Iudgment was given accordingly Draper versus Bridwell Rot. 320. ALL the Court held that an Action of Debt would lye upon a Iudgment after a Writ of Error brought Twisden They in the Spiritual Court will give Sentence for Tythes for rakings though they be never so unvoluntarily left which our Law will not allow of Wyld said that Actions personal transitory though the party doth live in Chester yet they may be brought in the Kings Courts Hales Shew a President where a man can wage his Law in an Action brought upon a Prescription for a duty as in an Action of Debt for Toll by Prescription you cannot wage your Law Pybus versus Mitford Postea THe Chief Iustice delivered his Opinion Wyld Rainsford and Twisden having first delivered theirs Hales I think Iudgment ought to be given for the Defendant whether the Son take by descent or purchase I shall divide the case 1 Whether the Son doth take by descent 2 Admitting he doth not whether he can take by purchase We must make a great difference betweén Conveyances of Estates by way of use and at Common Law A man cannot convey to himself an Estate by a Conveyance at Common Law but by way of Vse he may But now in our case here doth doth retorn by operation of Law an Estate to Michael for his life which is conjoyned with the Limitation to his heirs The reason is because a Limitation to the heirs of his body is in effect to himself this is perfectly according to the intention of the parties Objection The use being never out of Michael he hath the old use and so it must be a Contingent use to the heirs of his body But I say we are not here to raise a new Estate in the Covenantor but to qualifie the Estate in Fee in himself for the old Estate is to be made an Estate for life to serve the Limitation Further Objection It shall be the old Estate in Fee as if a man deviseth his Lands to his heirs the heir is in of the old Estate But I answer if he qualifie the Estate the Son must take it so as in Hutton fo So in this case is a new qualification Roll 789. 15 Jac. If a man makes a Feoffment to the use of the heirs of the body of the Feoffor the Feoffor hath an Estate Tail in him Pannel versus Fenne Moor 349. Englefield and Englefield 2 I conceive if it were not possible to take by descent this would be a Contingent use to the heirs of the body Objection It is limited to the heir when no heir in being Why I say it would have come to the heir at Common Law if no express Limitation had been and it cannot be intended that he did mean an heir at Common Law because he did specially limit it Fitz. tit Entayle 23. An Assise for the Serjeant at Mace's place in the House of Commons The Plaintiff had his Patent read The Court asked if they could prove Seisin They answered that they had recovered in an Action upon the case for the mean profits and had Execution Court For ought we know that will amount to a seisin Twisden Vpon your grant since you could not get seisin you should have gone into Chancery and they would have compelled him to give you seisin Hales A man may bring an Action upon the case for the profits of an Office though he never had seisin So the Record was read of his Recovery in an Action upon the case for the profits Hales This is but a seisin in Law not a seisin in Fact The Counsel for the Plaintiff much urged that the Recovery and Execution had of the profits was a sufficient seisin to entitle them to an Assise It was objected that the Plaintiff was never invested into the Office Hales said That an investiture did not make an Officer when he is created by Patent as this is but he is an Officer presently But if he were created an Herald at Arms as in Segars case he must be invested before he can be an Officer a person is an Officer before he is sworn Hales You are the Pernor of the profits and they have recovered them is not this a Seisin against you They shall find it specially but they chose rather to be Non-suit because of the delay by a special Verdict And the Court told them they could not withdraw a Iuror in an Assise for then the Assise would be depending The Roll of the Action sur le case fuit 19 Car. 2. Mich. Rot. 557. Term. Trin. 15 Car. II. 1663. Judge Hide 's Argument in the Exchequer-Chamber Manby versus Scott A Feme Covert departs
Man brings an Action of Debt against B. Sheriff of the County Palatine of Lancaster and sues him to an Outlawry upon mean Process and has a Capias directed to the Chancery of the County Palatine who makes a Precept to the Coroners of the County being six in all to take his body and have him before the Kings Iustices of the Court of Common-Pleas at Westminster such a day One of the Coroners being in sight of the Defendant and having a fair opportunity to Arrest him doth it not but they all return non est inventus though he were easie to be found and might have been taken every day Hereupon the Plaintiff brings an Action against the Coroners and lays his Action in Middlesex and has a Verdict for 100 l. Serj. Baldwin moved in Arrest of Iudgment that the Action ought to have been brought in Lancaster he agreed to the cases put in Bulwer's case 7 Rep. where the cause of Action arises equally in two Counties but here all that the Coroners do subsists and determines in the County Palatine of Lancaster for they make a Return to the Chancery of the County Palatine only and it is he that makes the Return to the Court He insisted upon Dyer 38 39 40. Husse Gibbs 2. He said this Action is grounded upon two wrongs one the not arresting him when he was in sight the other for returning non est inventus when he might easily have been taken now for the wrong of one all are charged and entire damages given He said two Sheriffs make but one Officer but the case of Coroners is different each of them is responsible for himself only and not for his Companion Serjeant Turner Pemberton contra They said the Action was well brought in Middlesex because the Plaintiffs damage arose here viz. by not having the body here at the day They cited Bulwer's case Dyer 159. b. the Chancery returns to the Court the same answer that the Coroners return to him so that their false Return is the cause of prejudice that accrues to the Plaintiff here The ground of this Action is the return of non est inventus which is the act of them all that one of them saw him and might have arrested him and that the Defendant was daily to be found c. are but mentioned as arguments to prove the false Return And they conceived an Action would not lie against one Coroner no more then against one Sheriff in London York Norwich c. But to the first exception taken by Baldwin they said admitting the Action laid in another County then where it ought yet after Verdict it is aided by the Statute of 16 17 Car. 2. if the Ven. come from any place of the County where the Action is laid it is not said in any place of the County where the cause of Action ariseth now this Action is laid in Middlesex and so the Trial by a Middlesex Iury good let the cause of Action arise where it will Cur̄ That Statute doth not help your case for it is to be intended when the Action is laid in the proper County where it ought to be laid which the word proper County implies But they inclined to give Iudgment for the Plaintiff upon the reasons given by Turner Pemberton Adjornatur Bird Kirke IT was resolved in this case by the whole Court 1. That if there be Tenant for life the Remainder for life of a Copy-hold and the Remainder-man for life enter upon the Tenant for life in possession and make a surrender that nothing at all passeth hereby for by his entry he is a Disseisor and has no customary Estate in him whereof to make a surrender 2. That when Tenant for life of a Copy-hold suffers a Recovery as Tenant in Fee that this is no forfeiture of his Estate for the Free-hold not being concern'd and it being in a Court-Baron where there is no Estoppell and the Lord that is to take advantage of it if it be a forfeiture being party to it it is not to be resembled to the forfeiture of a Free-Tenant that Customary Estates have not such accidental qualities as Estates at Common Law have unless by special Custom 3. That if it were a forfeiture of this and all other forfeitures committed by Copy-holders the Lord only and not any of those in Remainder ought to take advantage And they gave Iudgment accordingly North Chief Justice said that where it is said in King Lord's case in Cr. Car. that when Tenant for life of a Copy-hold surrenders c. that no use is left in him but whosoever is afterward admitted comes in under the Lord that that is to be understood of Copy-holds in such Mannors where the Custom warrants only Customary Estates for life and is not applicable to Copy-holds granted for life with a Remainder in Fee Anonymus A Writ of Annuity was brought upon a Prescription against the Rector of the Parish Church of St. Peter in c. the Defendant pleads that the Church is overflown with the Sea c. the Plaintiff demurs Serjeant Nudigate pro Querente The Declaration is good for a Writ of Annuity lies upon a prescription against a Parson but not against an heir F. N. B. 152. Rastall 32. the plea of the Church being drowned is not good at best it is no more then if he had said that part of the Glebe was drowned it is not the building of the Church nor the consecrated ground in respect whereof the Parson is charged but the profits of the Tythes and the Glebe Though the Church be down one may be presented to the Rectory 21 H. 7. 1. 10. H. 7. 13. 16 H. 7. 9. Luttrel's case 4 Rep. Wilmote contra The Parson is charged as Parson of the Church of St. Peter we plead in effect that there is no such Church and he confesseth it 21 Ed. 4. 83. Br. Annuity 39. 21 Ed. 4. 20. 11 H. 4. 49. we plead that the Church is submersa obruta c. which is as much a dissolution of the Rectory as the death of all the Monks is a dissolution of an Abbathie It may be objected that the Defendant has admitted himself Rector by pleading to it but I answer 1. An Estoppel is not taken notice of unless relyed on in pleading 2. The Plaintiff by his demurrer has confessed the Fact of our plea. By which mean the matter is set at large though we were estopped The Court was clearly of opinion for the Plaintiff The Church is the Cure of Souls and the right of Tythes If the material Fabrick of the Parish-Church be down another may be built and ought to be Judicium pro Quer ' nisi c. Term. Trin. 27 Car. II. in Communi Banco Vaughton versus Atwood alios TRespass for taking away some Flesh-meat from the Plaintiff being a Butcher The Defendant justifies by virtue of a Custom of the Mannor of c. that the Homage used
proceed against the whole Parish to have it repair'd they cannot Rate any particular person towards the repair of it But the Church-wardens must summon the Parish and that needs not be from house to house but a general publick Summons at the Church is sufficient and the major part of them that appear may bind the Parish If the Church and Chancel be out of repair the Parishioners are only chargeable to be contributory towards the Repairs of the Navis Ecclesiae If a Libel be against the Parish for not repairing the Church though the word Ecclesia may include the Chancel yet we will not grant a Prohibition If a Tax be set by the major part of the Parish pro reparatione Ecclesiae it is well enough and afterward any part of the money raised be laid out upon the Chancel the Parish ought not to allow it upon the Church-wardens accounts But if a Tax be imposed expresly for the repair of the body of the Church and of the Chancel we will not suffer them to proceed Or if a Libel be against a Parish for not repairing the Navis Ecclesiae and the Chancel we will prohibit them If a Church be down and the Parish encreased so that of necessity they must have a larger Church the major part of the Parish may raise a Tax for the enlarging it as well as the repairing it per Cur. It was insisted on at the Bar that to a Tax for the encreasing of a Church the consent of every Parishioner must be had But the Court was of another Opinion Southcote Stowell super Mich. 28 Car. 2. BAldw for the Plaintiff Thomas the Covenantor may be said to take an Estate for life by implication and then it will be all one as if an express Estate for life had been limited to him with a remainder to his Heirs males which would be a fée-tail executed in himself and if so then William has a good Title 1 And. 265. the Lord Paget's Case 1 Rep. 154. in the Rector of Chedington's Case Fenwyke and Mittfords Case Moor. 284. 1 And. 256. Cr. Eliz. 321. Hodgekinson and Wood's Case 1 Cr. 23. Lane and Pannell's Case 1 Rolls But if this will not hold then William may take an estate by way of a future springing use for this he quoted 2 Rolls Uses p 794. Mills and Parsons num 7. If neither of these ways will serve yet the remainder to the Heirs males of Thomas may vest in Edward for Sir Popham died in the Covenantor's life-time and William may take by descent as special Heir per formam doni though he be not Heir of the body of Edward in whom the remainder first vests Stroud contr The limitation of a remainder in tail to the Heirs males of the Covenantor is bad in its original creation For no man can make himself or his own Heirs Purchasers without departing with the whole Fée-simple Dyer 309. b. 42 Ass 2. 1 H. 5. 8. per Skrene 24 Ed. 3. 28. Bro. Estates 23. 1 H. 8. 65. per Hull 42 Ed. 3. 5. Br. Estates 66. Dyer 69. b. 2 H. 5. 4. b. 1 H. 5. 8. 14 H. 4. 32. a. Cook 2 Inst 333. 1 Inst 22. b. 32 H. 8. Bro. Livery 61. but all these Cases are of Estates passed by Conveyance at Common Law and not by way of use But Vses are directed by the Rules of the Common Law and as to the vesting of them differ not from Estates conveyed in possession 1 Rep. 138. Chudleigh's Case No favourable construction ought to be made for Vses against a Rule of Law The Stat. of H. 8. seems intended to extirpate all private Vses and was in restitution of the Common Law He cited the Earl of Bedford's Case 1 Rep. 130. a. Poph. 3 4. Moor. 718. and Fenwyke and Miltford's Case 1 Inst 22. b. If Thomas took any estate by this settlement he took a Fée-simple For no estate being limited to him if he took any the Law vested it in him Now the act of Law will not settle in him an Estate tail which is a fettered Estate but a Fée-simple if any thing And the rather because the reason of it must be upon a supposition that the old Vse continues still in him being never well limited out of him Then he argued that admitting the limitation to be good yet since it vested in Edward as a Purchasor it is spent by his dying without issue But North Windham and Atkins were of Opinion That if an Estate limited to a man and the Heirs of the body of his Father vest in him be it either by descent or purchase that if he die without issue it shall go to his Brother c. so that in this case if the remainder to the Heirs males of Thomas ever vested in Edward it comes to William as Heir male of the body of Thomas and he is a special Heir to take by descent 2. They agreed that at the Common Law a man could not make his right Heir a Purchasor without parting with the whole feé but that by way of Vse he might Creswold's Case in Dyer is of an Estate executed They agreed the limitation of the remainder in this case to be good and that it vested in Edward as a Purchasor North. It cannot take effect as a springing Vse because where the limitation is of a remainder the Law will never construe it so as to support it any other way This he said he had known resolved in one Cutler's Case in the Kings Bench. Scroggs agréed to the Iudgment but said he went contrary to the Books in so doing which go upon nice and subtile differences little less than Metaphysical Justice versus Whyte IN an Action of Debt against the Defendant as Executor to John Whyte the Defendant pleaded That John did make a Will but made not him Executor and that the said John had bona notabilia in divers Diocesses and that the Archbishop of Canterbury committed Administration to the Defendant and concluded in bar to which there was a demurrer Serjeant Turner 1. This is a plea in a abatement only and the Defendant has concluded in bar Cr. Eliz. 202. Isham Hitchcot 2. The Defendant does not traverse absque hoc that he ever administred as Executor 20 H. 6. 1. b. per Fortescue 3. The Defendant does not shew when Administration was committed to him for if it were committed hanging the Writ it will not abate it 21 H. 6. 8. 5 H. 5. 10 11. Br. tit Executors 7. 4. Hob. 49. 4. The Defendant does not lay it expresly that John Whyte died intestate but only says that he made a Will but did not appoint him the Defendant to be his Executor by that Will and that Administration was granted to him Now also the Defendant was not made Executor by the Will yet he might have been made so by a Codicil annexed to the Will Rolls Rep. 2 part 285. 5. He says not in what Province the bona notabilia
Martij prox sequentem the money is payable the same month 112 V. Tit. Survivor The Condition of a Bond runs thus viz. That if the Obligee shall within six months after his Mothers death settle upon the Obligor an Annuity of 20 l. per annum during life if he require the same or if he shall not grant the same if then he shall pay to the Obligor 300 l. within the time aforementioned then the Obligation to be void is this a disjunctive Condition or not 264 265 c. Words allowed to be part of the Condition of a Bond though following these words then the Obligation to be void 274 275 Consideration V. Action upon the Case V. Etiam 284 Constable Moved to quash an Order made by the Justices of Peace for one to serve as Constable 13 Contingent remainder Supported by a Right of Entry 92 Conventicles To meet in a Conventicle whether a breach of the Peace or no 13 Conusance V. Tit. Vniversity Copy Copy of a Deed given in Evidence because the Original was burnt 4 Copies allow'd in evidence 266 Copyhold Tenant for life of a Copyhold He in the remainder entreth upon the Tenant for life and makes a Surrender nothing passeth 199 Tenant for life of a Copyhold suffers a Recovery as Tenant in Fee-simple this is no forfeiture 199 200 Of all Forfeitures committed by Copyholders the Lord only is to take advantage 200 Coroner V. Enquest Corporation What things can a Corporation do without Deed and what not 18 Costs An Executor is not within the Statute to pay Costs occasione dilationis executionis c. 77 Cottage An Enditement for erecting a Cottage contra formam Statuti quasht because it is not said That it was inhabited 295 Covenant Action of Covenant upon the Warranty in a Fine the Plaintiff assigns his Breach that a stranger habens legale jus titulum did enter c. but does not not say that it was by vertue of an Eigne Title 66 67 101 292 293 Covenant to make such an Assurance as Council shall advise 67 Covenant for quiet Enjoyment 101 A man does assignare transponere all the money that shall be allowed by any Order of a Foreign State does an Action of Covenant lie upon these words or not 113 An Action of Covenant lies against a Woman upon a Covenant in a Fine levied by her when she was a Feme Covert 230 231 V. Ibidem exceptions to the pleading in such Action Covenant to stand seized A man Covenants to stand seiz'd to the use of the Heirs of his own body 98 121 159 V. Limitation d' Estates V. Vses County-Courts V. 171 172 215 249. County-Palatine V. 2. Counterplea of Voucher V. 8. Court of Kings Bench. It s Jurisdiction is not ousted without particular words in an Act of Parliament 45 V. Habeas Corpus Cure of Souls What Ecclesiastical Persons have Cure of Souls and what not 11 12 Cur ' advisare vult During a Cur ' adv vult one of the parties dies how must Judgment be entred 37 Custom Custom of a Mannor for the Homage to chuse every year two Surveyors to destroy corrupt Victuals exposed to sale a good Custom 202 A Custom to be discharged of Tythes of Sheep all the year after in consideration of the payment of full Tythes of all the Sheep they have on Candlemas-day 229 D. Damages EXcessive Damages no good Cause for a new Writ of Enquiry 2 Demand Requisite or not requisite 89 Departure in Pleading V. 43 44 227 289. Depositions V. Tit. Evidence Debt For Rent upon a Lease for years 3 Debt upon a Bond against two Executors they pleaded a Statute acknowledged by the Testator of 1200 li. and no assets ultra c. the Plaintiff replies That one of the Executors was bound together with the Plaintiff in that Statute 165 Devise Of a term for years V. Limitation of Estates By a Devise of all a man's Estate what passeth 100 I give Rees-Farm to my Wife during her natural life and by her to be disposed of to such of my Children as she shall think fit What Estate passeth hereby 189 A man has a Son called Robert Robert has likewise a Son call'd Robert The Grand-Father deviseth Land to his Son call'd Robert and his heirs Robert the Devisee dies living the Father The Devisor makes a new publication of the same Will and declares it to be his intention that Robert the Grand-Child should take the Land per eandem voluntat Does the Grand-Child take or no 267 268 A man deviseth a Rent-Charge to his Wife for her life but that if she marry that then his Executor shall pay her 100 l. and the rent shall cease and return to the Executor she does marry and the Executor does not pay the 100 l. The question is Whether the Rent shall cease before the 100 l. be paid or not 272 273 Distribution Administrators must make Distribution to those of the half-blood as well as to those of the whole 209 Donative V. 11 12 22 90. Double Plea V. 18 227. E. Ecclesiastical persons A Chapter of which there is no Dean is restrain'd by the Statute of 13 Eliz. 204 A Grant of next avoidance restrain'd ibid. Such Grant void ab initio ibid. Ejectione firmae De quatuor molendinis good Of so many Acres jampnor ' bruere without saying how many of each good 90 The Plaintiff in Ejectment dies before Judgment 252 Entry to deliver a Declaration in Ejectione firmae shall not work to avoid a Fine 10 Error A Writ of Error will lie in the Exchequer-Chamber upon a Judgment in a Scire facias grounded upon a Judgment in one of the Actions mentioned in 27 Eliz. 79 It shall not be assign'd for Error of Judgment in an inferior Court that the matter arose out the Jurisdiction but it must be pleaded 81 Escape V. 116. A Trial at Bar upon an Escape In an Action for an Escape the Defendant pleads That he let the Prisoner to bail according to the Stat. of 23 H. 6. cap. 10. and that he had taken reasonable Sureties of persons having sufficicient c. The Plaintiff replies and traverseth the sufficiency of the Sureties 227 Estoppel By the condition of a Bond. 113 Exchange of Lands Two women seized one of one Acre and another of another and they make an exchange then one of them marries before entry shall that defeat the exchange 91 Excise The Statute for Excise prohibits the bringing of a Certiorari but not Habeas Corpus 103 Executors V. Costs V. Appearance In what order Executors are to pay Debts c. 174 175 Executor dur ' minor ' aetate 174 175 An Executor must entitle himself to the Executorship to enable him to retain for his own debt 208 An Executors refusal before the Ordinary after Administration is a void act 213 Action of Debt against an Executor the Defendant pleads That the Testator made a Will but did not make him Executor therein that he
Limitation of Estates A man deviseth a term to one for life the remainder to another for life and if the remainder man for life die without issue of his body begotten then to a stranger whether is this a good Limitation or not 50 51 c. V. A term setled in trust with remainders to persons not in being 114 115 V. Covenant to stand seiz'd A man Covenants to stand seiz'd to the use of his eldest Son and the Heirs-males of his body remainder to the use of the Heirs-males of his own body remainder to his own right Heirs 226 237 238 Limitation of Actions What Actions between Merchants are within the Statute of Limitations and what not 70 71 268 269 The Statute of Limitations how to be pleaded 89 Action upon the Case against a Sheriff for that he levied such a sum of money at the Plaintiffs Suit and did not bring the money into Court at the day of the return of the Writ Whether is this Action within the Statute of Limitations or not 245 Livery A man chosen by a Company in London to be of the Livery and refusing to serve cannot be committed 10 Livery deins le view A woman makes a Feoffment and gives Livery within the View then she marries with the Feoffee before he enters whether has this entermarriage destroyed the operation of the Livery within the view 91 M. Mandamus A Writ of Mandamus to the Master and Fellows of a Colledge in Oxford to restore a Fellow whether it lies or not 82 83 c. Market Action upon the Case for keeping a Market in prejudice of the Plaintiffs Market does well lie although the Defendant does not keep his Market on the same day that the Plaintiff keep his 69 Melius inquirendum V. 82 Misericordia Whether ought a Misericordia or a Capiatur to be entred upon a relicta verificatione 73 Misnosmer V. Cap. Excommunic Monopoly Whether is the Patent of Incorporation to the Canary-Company a Monopoly or not 18 Monstrans de faits The Plaintiff in Quare Impedit declared upon a Grant of an Advowson to his Ancestor and says in his Declaration Hic in cur ' prolat but has it not to shew moved That forasmuch as the Defendant had gotten the Deed into his hands the Plaintiff might take advantage of a Copy thereof which appeared in an Inquisition found temp-Edw sexti and denied 266 N. Non-claim DOes not bar a Title to enter for a Condition broken 4 Non-conformists A Case upon the Oxford-Act against Non-conformist-Ministers V. 68 Non-tenure Non-tenure pleaded in abatement 281 Non-tenure when a Plea in Bar and when only in abatement 249 250 Notice When requisite and when not and whether Infancy be any excuse in such case or not 86 87 c. 300 301 302 303 c. Novel-assignment in Trespass V. 89. Nusance It is no Nusance to stop a Prospect so the light be not darkned 55 Whether is it a Nusance for a Rope-dancer to erect a Stage in a Town or City 76 V. 168 169 V. 202 O. Oath EXtra Judicial Oath V. Action upon the Case Obligation Whether or no may a second Bond be given is satisfaction of a former 221 225 Officer Investiture does not make an Officer when he is created by Patent 123 Orphan A man brought to the Bar by Habeas Corpus being committed by the Court of Aldermen for marrying a City-Orphan 77 79 80 Outlawry V. 90. Oyer Of Letters Patents V. 69 P. Pardon WHat is pardoned by a Pardon of all Offences 102 Parliament V. Habeas Corpus Partners in Trade One of them becomes Bankrupt the other shall not be charged with the whole otherwise if one of them die 45 Pasture Whether is a Custom to have a several Pasture excluding the Lord a good Custom or not 74 Pension A Parson has a Pension by Prescription How may he recover it 218 Perjury In a Court-Baron indictable 55 Physicians The calling of a Physician does not Priviledge a person that 's chosen Constable 22 Pleading An Executor pleads several Judgments in Bar but for the last he does not mention when it was enter'd nor when obtain'd and the Plea was held to be naught upon a general Demurrer 50 A Surrender into the hands of two Tenants of the Mannor out of Court secundum consuetudinem c. without saying that there was a Custom in the Mannor to warrant such a Surrender 61 62 V. A customary way of Pleading in Bristow to an Action of Debt upon a Bond. 96 Pleading to an Inditement for not repairing the High-ways 112 Pleading in an Action upon the Case upon a promise to pay money in consideration of forbearance 169 V. Tit. Prerog Possessio fratris V. 120 Praemunire An Action upon the Statute of Praemunire for impeaching in the Chancery a Judgment given in the Kings Bench whether it lies or not 59 60 Prerogative Whether may the King relinquish his own and traverse the Title shewn for the party or not and in what Cases 276 277 278 Prescription A Prescription for Toll 104 105 231 232 A. prescribes for a way over B's ground to Black-acre and drives his Beasts over B's ground to Black-acre and then to a place beyond Black-acre adjudged upon a Demurrer That he could not lawfully do so 190 191 Presentment Quasht because it does not express before whom the Sessions were held 24 Printing Whether are the Letters Patents good in Law whereby the sole-Printing of Almanacks is granted to the Company of Stationers 256 257 Priviledge An Arch-Deacon priviledged from the Office of Expenditor to the Commissioners of Sewers 282 V. Tit. Physician Prohibition To stay proceedings upon a Libel against one for teaching School denied 3 To stay a Suit for calling a woman Whore deny'd 21 22 Incumbent of a Donative cited into the Spiritual Court for marrying without Licence prays a Prohibition denied 22 Whether shall a Prohibition go to an Inferiour Court for holding Plea when the cause of Action ariseth out of their Jurisdiction till after such time as the Defendant has pleaded to the Jurisdiction and that his Plea be disallowed 63 64 81 A Prohibition prayed for that in the Spiritual Court they cited the Minister of a Donative to take a faculty to Preach from the Bishop 90 Moved for a Prohibition to the Spiritual Court because they proceeded to the Probate of a Will that contained devises of Lands as well as bequests of personal things 90 Prohibition to stay a Suit by a Proctor for his Fees denied 167 Promise How a Promise may be discharged 205 206 262 Q. Quare Impedit WHen in a Declaration in Quare Impedit the Plaintiff must alledge his Presentation tempore pacis and when he needs not 230 Process in Quare Impedit upon non-appearance of the Defendant by the Statute of Marlebridge cap. 12. 248 249 Two Judgments in a Quare Impedit 254 255 Que estate A thing that lies in grant may be claimed as appurtenant to a Mannor by a Que estate
remedy by way of Appeal It may be objected that there can be no Appeal hither because it is a spiritual Corporation Now I say this is not a spiritual Corporation as appears by the foundation and I am of Opinion that if a Corporation be all of spirituall persons yet unless there be a spiritual end it is no spiritual Corporation but a Lay-one But if it be a spiritual Corporation yet Deprivation is a temporal act Dyer 209. Another Objection may be That the Founder hath provided that there shall be no Appeal I answer the Founder cannot by his foundation exclude Legal remedies against wrong A Custom which is the strongest Foundation doth not bind a man up from his Legal remedy Litt. Sect. 212. If a man should dispose of his Estate by Will and provide therein that if any difference should arise concerning the Execution of the same that it shall be determined by such and such and no Suit commenced upon it at the Common Law this would be a vain appointment he must not erect a Iurisdiction of his own to oust the Kings Courts of theirs Coleman I conceive this is such a Colledge as no Mandamus shall go to it in any case whatsoever for it is but a private Society and hath no influence upon the publick In Ryly's Records we find that Mandamus's were only Letters to Colledges c. and there were no Iudicial Mandamus's till Bagg's case and I never knew them go but when the party had not only a Freé-hold but one that was of publick concern Now a Fellowship of a Colledge is for a private design only to study and if you grant a Mandamus in this case whither will it go at last Then the Foundation was to a spiritual intent and what is committed to the Ecclesiastical Power and Iurisdiction this Court doth preserve Ecclesiastical men hold in Eleemosynam Litt. Sect. 136. Linwood de Religiosis domibus When Colledges are founded under rule and order it doth give the Bishop Iurisdiction so that this Court will not enquire into this matter no more than it will enquire into causes of Deprivation and matters relating to the Institution of Clergy-men It has béen denied that a Fellow of a Colledge can bring an Assize But as a Prebend hath two capacities sole and aggregate so a Fellow is a Member of a Corporation aggregate and hath a sole capacity in respect of his Fellowship For a Church-Warden who is admitted according to the course of the Ecclesiastical Law a Mandamus will not lie Vide 6 H. 7. 10. Twisden In one Patrick's case we all held that a Colledge was a Temporal Corporation Hales There is a reason given in Dyer why a Mandamus will not lye in the case there viz. because it was prayed to be awarded to a Temporal Corporation Coleman It doth appear by the Return that the Founder hath appointed a Visitor now to him there may be an Appeal and we have returned the Sentence of the Visitor and need not return the cause of the Sentence And for Books I do oppose Rolls tit Prerogative Huntly's case 209. to Specott's case and Ken's case in the Reports In our case the party has a remedy elsewhere and therefore he shall not come hither If a Mandamus shall lie for a Mastership Fellowship or Schollarship it will in time come to lie for turning out of Commons and what a combustion will this raise then The Niceties of Husband and Wife were said by the Iudges in Scott's case to be proper for the Spiritual Court and not fit to be brought before the Iudges Hales That a Mandamus lies I will not positively deny but whether is it fit for us to proceed after this Return It must be taken for granted that it is not a spiritual Corporation if it were you ought to Appeal to the Visitor and then to the Delegates It is a private Society as an Inns of Court and I confess that Mandamus's do generally respect matters of publick concern I never heard of a Mandamus for a Monk If there be a Iurisdiction in the Visitor and he hath determined the matter how will you get over that Sentence The Chancellor is Visitor of all the Kings Frée-Chappels and the 2 H. 5. doth make him so of all Colledges of the Kings Foundation Suppose a Temporal Court over which we have Iurisdiction do give Iudgment in Assize to recover an Office so long as that Iudgment stands in force do you think that we will grant a Mandamus to restore him against whom the Iudgment is given Twisden In all Eleemosinary things there are Visitors appointed either by Law or by Creation of the party Hales The Frée-Chappels of Windsor and Wolverhampton are not of Spiritual Iurisdiction Hales At this rate we should examine all Deprivations Suspensions Elections c. and by the 13 of the Qu. the Laws of the Vniversity are confirmed Hales We ought not to grant a Mandamus where there is a Visitor but in this case the Visitor hath given Sentence Mors Sluce A Trial at Bar. An Action upon the case was brought against a Master of a Ship who had taken in Goods to Transport them beyond Sea for that he so negligently kept them that they were stolen away whilst the Ship lay in the River of Thames Maynard insisted upon it that the Master was not chargeable say they he is chargeable whilest he is here but when he is gone out of the Realm he is not chargeable though the Goods be taken from him Which distinction he said had no foundation in Law Hales It will lye upon you that are for the Defendants to shew a difference betwixt a Carrier and a Master of a Ship And it will lye upon you that are for the Plaintiff to shew why the Master of a Ship should be charged for a Robbery committed within the Realm and not for a Pyracy committed at Sea It was urged for the Plaintiff that a Hoy-man and Ferry-man are bound to answer and why not the Master of a Ship The Defendant proved that there was no carelesness nor negligent default in him Maynard He is not chargeable if there be no negligence in him because he is but a Servant the owner takes the Freight Hales He is Exercitor navis If we should let loose the Master the Merchant would not be secure And if we should be too quick upon him it might discourage all Masters so that the consequence of this case is great But the Iury gave a Verdict for the Defendant the Court for the reasons aforesaid inclining that way Porter Fry EJectione firmae A special Verdict The case was A man deviseth to A. for life the Remainder to one and the Heirs of his body upon condition That if he marry without consent of such and such or dye without Heirs of the body of his Mother that then the Estate shall go to another and his Heirs He marries without their consent and he in the Remainder
take notice that he is a Bankrupt any Execution may be stopped at that rate by alledging that there is a Commission of Bankrupts out against the Plaintiff If he be a Bankrupt you must take out a special Scire facias and try the matter whether he be a Bankrupt or not Which Jones said they would do and the Court granted Twisden If a Mariner or Ship-Carpenter run away he loses his wages due which Hales granted Henry L. Peterborough vers John L. Mordant A Trial at Bar upon an Issue out of the Chancery whether Henry Lord Peterborough had only an Estate for Life or was seized in Fee-tail The Lord Peterborough's Counsel alledged that there was a settlement made by his Father 9 Car. 1. whereby he had an Estate in Tail which he never understood till within these three years but he had claimed hitherto under a Settlement made 16 Car. 1. And to prove a Settlement made 9 Car. 1. he produced a Witness who said that he being to purchase an Estate from my Lord the Father one Mr. Nicholls who was then of Counsel to my Lord gave him a Copy of such a Deed to shew what title my Lord had But being asked whether he did see the very Deed and compare it with that Copy he answered in the negative whereupon the Court would not allow his Testimony to be a sufficient Evidence of the Deed and so the Verdict was for my Lord Mordant Cole Forth A Trial at Bar directed out of Chancery upon this Issue whether Wast or no Wast Hales By protestation I try this cause remembring the Statute of 4 Henr. 4. And the Statute was read whereby it is Enacted That no Iudgment given in any of the Kings Courts should be called in question till it were reverst by Writ of Error or Attaint He said this cause had been tried in London and in a Writ of Error in Parliament the Iudgment affirmed Now they go into the Chancery and we must try the cause over again and the same point A Lease was made by Hilliard to Green in the year 1651. afterwards he deviseth the Reversion to Cole and Forth gets an under-Lease from Green of the premisses being a Brew-house Forth pulls it down and builds the ground into Tenements Hales The question is whether this be Wast or no and if it be Wast at Law it is so in Equity To pull down a House is Wast but if the Tenant build it up again before an Action brought he may plead that specially Twisden I think the Books are pro and con whether the building of a new House be Wast or not Hales If you pull down a Malt-mill and build a Corn-mill that is Wast Then the Counsel urged that it could not be repaired without pulling it down Twisden That should have been pleaded specially Hales I hope the Chancery will not Repeal an Act of Parliament Wast in the House is Wast in the Curtelage and Wast in the Hall is Wast in the whole House So the Iury gave a Verdict for the Plaintiff and gave him 120 l. damages Term. Mich. 25 Car. II. 1673. in B. R. AN Action of Debt was brought upon a Bond in an inferiour Court the Defendant cognovit actionem petit quod inquiratur per patriam de debito This pleading came in question in the Kings Bench upon a Writ of Error but was maintain'd by the Custom of the place where c. Hales said it was a good Custom for perhaps the Defendant has paid all the Debt but 10 l. and this course prevents a Suit in Chancery And it were well if it were established by Act of Parliament at the Common Law Wild. That Custom is at Bristow Randall versus Jenkins 24 Car. 2. Rot. 311. REplevin The Defendant made Conusance as Bayliff to William Jenkins for a Rent-charge granted out of Gavel-kind Lands to a man and his Heirs The question was whether this Rent should go to the Heir at Common Law or should be partible amongst all the Sons Hardres It shall go to the eldest Son as Heir at Law for I conceive it is by reason of a Custom time out of mind used that Lands in Kent are partible amongst the Males Lamb. Perambulat of Kent 543. Now this being a thing newly created it wants length of time to make it descendible by Custom 9 H. 7. 24. A feoffment in Fee is made of Gavel-kind Lands upon Condition the Condition shall go to the Heirs at Common Law and not according to the descent of the Land Co. Litt. 376. If a warranty be annex'd to such Lands it shall descend only upon the eldest Son Now this Rent-charge being a thing contrary to common right and de novo created is not apportionable Litt. Sect. 222. 224. it is not a part of the Land for if a man levy a Fine of the Land it will not extinguish his Rent unless by agreément betwixt the parties 4 Edw. 3. 32. Bro. tit Customs 58. if there be a Custom in a particular place concerning Dower it will not extend to a Rent-charge Fitz. Dower 58. Co. Litt. 12. Fitz. Avowry 207. 5 Edw. 4. 7. there is no occasion in this case to make the Rent descendible to all for the Land remains partible amongst the Males according to the Custom And why a Rent should go so to the prejudice of the Heir I know not 14 H. 88. it is said that a Rent is a different and distinct thing from the Land Then the language of the Law speaks for general Heirs who shall not be disinherited by construction The grand Objection is whether the Rent shall not follow the nature of the Land 27 H. 8. 4. Fitzherb said he knew four Authorities that it should Fitz. Avowry 150. As for his first case I say that Rent amongst Parceners is of another nature than this for that is distreynable of Common right As for the second I say the rule of it holds only in cases of Proceedings and Trials which is not applicable to his Custom His third case is that if two Coparceners make a feoffment rendring Rent and one dies the Rent shall not survive To this I find no answer given Litt. Sect. 585. is further objected where it is said that if Land be deviseable by Custom a Rent out of such Lands may be devised by the same Custom but Authorities clash in this point He cited farther these books viz. Lamb. Peramb of Kent and 14 H. 8. 7 8. 21 H. 6. 11. Noy Randall Roberts case 51. Den. cont I conceive this Rent shall descend to all the Brothers for it is of the quality of the Land and part of the Land it is contained in the bowels of the Land and is of the same nature with it 22 Ass 78. which I take to be a direct Authority as well as an instance Co. Lit. 132. ibid 111. In some Boroughs a man might have devised his Land by Custom and in those places he might have devised a Rent
in the continuance of that Estate that is not subject to the Rent but is above all those charges now no recompence can come to such a Rent And therefore there is another reason why a Common Recovery will bar at Common Law upon an Estate Tail which was a Fée-simple conditional a Remainder could not be limited over because but a possibility but now comes that Statute De donis conditionalibus and makes it an estate tail and a Common recovery is an inherent priviledge in the Estate that was never taken away by that Statute De donis the Law takes it as a conveiance excepted out of the Statute as if he were absolutely seised in fee and this is by construction of Law It is true there can be no recompence to him that hath but a possibilitie But the business of recompence is not material as to this charge And the reason of Whites case and other cases put explain this Now what difference between this and Capels case Say they there the charge doth arise subsequent but here the charge doth arise precedent why I say the charge doth arise precedent to the Remainder but subsequent to the Estate tail for it is not to take effect till the Estate tail be determined It was doubted in the Queens time whether a Remainder for years was barred but it hath béen otherwise practised ever since and there is no colour against it Now you do agrée that the Remainder to the right Heirs of one living shall be barred for the Estate is certain though the Person be uncertain So long as the Rent doth not come within the compass and limitation of the Estate tail the Rent is extinct and killed there is nothing to keep life in it But whether doth not the Lease for years preserve it Heretofore it was a question among young men Whether if Tenant in Tail granted a Rent Charge for Life then makes a Lease for three Lives In this case though the Rent before would have dyed with Tenant in Tail yet this Rent will continue now during the three Lives which it will And it hath been questioned if he had made a Lease for years instead of the Lease for lives if that would have supported the Rent Now in our case if the Lease for years were chargeable the Rent would arise out of that But if this Rent should continue then most mens Estates in England would be shaken Wild. The Lease for years doth not preserve the Rent but the Common Recovery doth bar it For Pell Brownes case in that Case the Recovery could not barr the possibility for he was not Tenant in Tail that did suffer the Recovery but he had only a Fee simple determinable and the contingent Remainder not depend upon an Estate Tail nay did not depend by way of Remainder but by way of Contingency It is true Iustice Dodridge did hold otherwise but the rest of Iudges gave Iudgment against him upon very good reason Twisden I never heard that case cited but it was grumbled at Hales But to your knowledge and mine they always gave Iudgment accordingly A man made a gift in Tail determinable upon his non-payment of 1000 l. the Remainder over in Tail to B. with other Remainders Tenant in Tail before the day of payment of the 1000 l. suffers a common Recovery and doth not pay the 1000 l. yet because he was Tenant in Tail when he suffered the Recovery by that he had barred all and had an Estate in Fee by that Recovery At a day after Hales said the Rent was granted before the Lease for years and is not to take effect till the Estate Tail be spent and a common Recovery bars it If there be Tenant in Tail reserving Rent a common Recovery will not bar it so if a Condition be for payment of Rent it will not bar it But if a Condition be for doing a collateeal thing it is a bar And so if Tenant in Tail be with a Limitation so long as such a Tree shall stand a common Recovery will bar that Limitation Lampiere versus Mereday AN Audita Querela was brought before Iudgment entred which they could not do 9 H. 5. 1. which the Court agreed Whereupon Counsel said it was impossible for them to bring an Audita Querela before they were taken in Execution for the Plaintiff will get Iudgment signed and take out Execution on a suddain and behind the Defendants back Thereupon the Court ordered the Postea to be brought in for the Defendant to see if Execution were signed And at a day after Hales said If an Audita Querela was brought after the day in bank though the Iudgment was not entred up yet the Court would make them enter up the Iudgment as of that day So that they shall not plead Nul tiel Record Wyld said a Sheriffs bond for ease and favour was void at Common Law and so it was declared in Sir John Lenthalls case Twisden upon opening of a Record by Mr. Den said It was already adjudged in this Court that a Rent issuing out of Gavelkind Land is of the nature of the Land and shall descend as the Land doth An Action of Debt upon a Bond. Sympson moved in Arrest of Iudgment The Bond was dated in March and the Condition was for payment super vicessimum octavum diem Martii prox ' sequentem It was sequentem which refers to the day which shall be understood of the month next year If it had been sequentis then it had referred to March and then it had beén payable the next year But the Court was of Opinion that it should be understood the currant month Sympson cited a case wherein he said it had been so held Read versus Abington Hales Formerly if Execution was gone before a Writ of Error delivered or shewed to the party it was not to be a Supersedeas Wyld He must not keep the Writ in his pocket and think that will serve At another day Hales said it shall not be a Supersedeas unless shewed to the party and he must not foreslow his time of having it allowed for if it be not allowed by the Court within four days it is no Supersedeas Hales A Writ of Error taken out if it be not shewn to the Clerk of the other side nor allowed by the Court it is no Supersedeas to the Execution And that if a Writ of Error be sued bearing Teste before the Iudgment be given if the Iudgment be given before the Retorn it is good to remove it though at first he said it was so in respect of a Certiorari but not of a Writ of Error And he said that Iudgment when ever it is entred hath relation to the day in bank viz. the first day of the Term So that a Writ of Error retornable after will remove the Record when ever the Iudgment is entred Vpon a motion concerning the amending of Leather-Lane Hales If you plead Not-guilty it goes to the Repair or
Court and the Sheriff let him go into the Country it is an escape And though he be not bound to bring him the direct way because he may be rescued yet he ought not to carry him round about a great way for the accommodation of the party if he doth it is an Escape but by this Evidence you let him go back threescore miles to which there can be no answer An Habeas Corpus retornable immediate is not fixt to an hour but to a convenient time They answered that he went back to carry back some Writings Counsel Here is an escape of one of the parties who dies before the Action brought whereby the whole charge is survived to the other before the Action brought and whether this shall purge the Escape is the question or how far it shall purge it Wild. Before you brought your Action the Debt is gone as to the Escape Hales We are made the Engines of doing all the mischief if this shall go unpunished being by colour of an Habeas Corpus So the Iury brought in a Verdict for the Plaintiff who declared in Debt for 6200 l. Greene versus Proude A Trial at Bar The question whether a Will or no Will The Plaintiff produced a Deed indented made between two parties the Man and his Son and the Father did agree to give the Son so much and the Son did agree to pay such and such Debts and Sums of money And there were some particular expressions resembling the form of a Will as that he was sick of body and did give all his Goods and Chattels c. but the Writing was both Sealed and delivered as a Deed And they gave evidence that he intended it for his last Will which the Court said was a good proof of his Will Then the Defendant setting up an Entail the Plaintiff exhibited an Exemplification of a Recovery in the Marquess of Winchesters Court in ancient demesne The other side objected that they did not prove it a true Copy But because it was ancient the Court said they should not be so strict upon the Evidence of it for the other side said the Court Rolls were burned in Baseing-house in the time of the Wars Hales I remember a case where one had gotten a presentation to the Parsonage of Gosnall in Lincoln-shire and brought a Quare Impedit and the Defendant pleaded an Appropriation there was no Licence of Appropriation produced but because it was ancient the Court would intend it Then they objected that they ought to prove seisin in the Tenant to the Praecipe Hales It being an ancient Recovery we will not put them to prove that He said the Mayor of Bristol had offered in evidence an Exemplification of a Recovery under the Town Seal of Houses in Bristol the Records being burned and that Exemplification was allowed for Evidence Hales If Tenant in Tail accept a Fine come ceo c. this doth not not alter his Estate If Tenant for life accept of a Fine Sur conusance c. he doth forfeit his Estate but it doth not alter the Estate for life Objection The Recovery is of Land in Kingscleare whereas the Land claimed is in a particular Ville called And the Vills are several and there are distinct Courts in every Ville Hales There are several Tythings of Dale Sale and Downe there is a Tythingman in every particular place but the Constable of Dale goes through all these may go for several Vills or one Vill There may be a Mannor that hath several little Mannors within it wherein are held several Courts for the ease of the Tenants but all but one Mannor And a Writ of Right close is Quod plenam rectam c. and runs to the Bayliff of the Mannor and may extend to the Precinct of the whole Mannor as the Mannor of Barton hath several little Mannors under it yet all within the Mannor Hales Where there is a Writ of Right close in ancient demesne it is not like a demand to a Sheriff here where he hath his direction for so many Acres Maynard But then he must demand it in the particular Ville where it is Hales If a Praecipe quod reddat be of Land in a Parish where it must be in a Ville there may be exception to the Writ but if he recovers it is good for now the time is past And so where it is infra manerium if he recovers it is good Browne versus AN Action brought in Canterbury Town The Defendant removes it by Habeas Corpus Then the Plaintiff declares here It was moved that it might be tried in some other County because the Iudges came there so seldom Court Let them shew cause why they should not consent and if they will plead Nil debet the Plaintiff will be willing to let them give any thing in Evidence And Simpson said it was the Opinion of all the Iudges that upon Nil debet pleaded Entry and Suspension may be given in Evidence which the Court did not deny So the Court ordered the other side to shew cause why they should not consent One Hillyard an Attorney sued for his Fees in this Court in the Court at Bristol But the Court said an Attorney ought not to wave this Court A motion was made by Sir William Jones for the Lord Mayor Starling See Bushel's case reported in Vaughan's Reports and the Recorder Howell One Bushell brought an Action against them for False Imprisonment And because the plea was long he prayed he might have time to plead Hales I speak my mind plainly that an Action will not lye for a Certiorari and an Habeas Corpus whereby the body and proceédings are removed hither are in the nature of a Writ of Error And in case of an erroneous Iudgmene given by a Iudge which is reverst by a Writ of Error shall the party have an Action of False Imprisonment against the Iudge No nor against the Officer neither The Habeas Corpus and Writ of Error though it doth make void the Iudgment it doth not make the awarding of the Process void to that purpose and the matter was done in a course of Iustice They will have but a cold business of it An Habeas Corpus and Certiorari is a Writ of right the highest Writ the party can bring So day was given to shew cause Lord Tenham versus Mullins A Trial at Bar about a fraudulent Deed. Hales There are thrée things to be considered Fraud Consideration and Bona fide Now the Bona fide is opposite to Fraud I remember a case in Twine's case If the Son be dissolute and the Father with advice of Friends doth settle things so that he shall not spend all though here be not a consideration of money yet it is no fraudulent Deed and a Deed may be voluntary and yet not fraudulent otherwise most of the Settlements in England would be avoided and so said Twisden Blackburne versus Graves TRover for 100 Loads of Wood Not-guilty
Reversion to his own right Heirs after which Michael dyed leaving Issue Robert his Son and Heir by a first Venter and the said Ralph by Jane his second wife after the death of Michael Robert entred and from Robert by divers Mesne Conveyances a Title was deduced to the Heir of the Plaintiff Ralph had Issue Robert the Defendant And in this special Verdict the question was If any Vse did arise to Ralph by this Indenture 23 Jan ' 21 Jac ' Hales Rainsford and Wyld against the Opinion of Twisden Michael Mitford took an Estate for life by implication and consequence and so had an Estate Tail Hales 1 said it were clear if an Estate for life had been limited to Michael and to the Heirs males of the body of Michael to be begotten on the body of his second wife that had been an Estate Tail 2 Which way soever it be the Estate is lodged in Michael during his life 3 There is a great difference between Estates to be conveyeyed by the rules of the Common Law and Estates conveyed by way of Vse for he may mould the Vse in himself in what estate he will These things being premised he said This Estate being turned by operation of Law into an Estate in Michael is as strong as if he had limited an Estate to himself for life 2 A Limitation to the Heirs of his body is in effect a Limitation to the Vse of himself for his Heirs are included in himself 3 It is perfectly according to the intention of the party which was that his eldest Son should not take but that the Issue of the second wife should take His intent appears to be 1 Object that it should take effect as a future use When a man limits a Vse to commence in futuro Respons and there is such a descendible quality left in him that his Heirs may take in the mean time there it shall operate solely by way of future Vse as if a man Covenant to stand seized to the use of J. S. after the expiration of 40 years or after the death of J. D. there no present alteration of the Estate is made but it is only a future use because the Father or the Ancestor had such an Interest left in him which might descend to his Heir viz. during the years or during the life of J. D. But when no Estate may by reason of the Limitation descend to the Heir until the Contingency happen there the Estate of the Covenantor is moulded to an Estate for life This would be to create an Estate by implication 2 Object We are not here to create an Estate Respons but only to qualifie an Estate which was in the Ancestor before That the old Fee-simple shall be left in him 3 Object Yet the Covenantor had qualified this Estate Respons and converted it into an Estate Tail viz. part of the old Estate That the intention of the parties appears that it should operate by way of future use 4 Object for that of other Lands he covenanted to stand seised to the use of himself and his Heirs of his body It is not the intention of the party that shall comptroll the operation of Law Respons and to the case 1 Inst 22. though it be objected that it was not necessary at the Law to raise an Estate for life by implication yet my Lord Coke hath taken notice what he had said in the case of Parnell and Fenn Roll Rep. 240. if a man make a Feoffment to the use of the Heirs of his body that is an Estate for life in the Feoffor and in Englefields case as it is reported in Moore 303. it is agreed that if a man Covenant to stand seised to an use to commence after his death that the Covenantor thereby is become seised for life As to the second point Twisden Rainsford and Wyld held that no future use would arise to Ralph because he is not heir at Common Law and none can purchase by the name of heir unless he be heir at Common Law But Hales was against them in this point and he held that it Ralph could not take by descent yet he might well take by purchase 1 Because before the St ' de Donis a limitation might be made to this heir and so he was a special heir at Common Law 2 It is apparent that he had taken notice that he had an heir at the Common Law Litt. Sect. 35. 1 Inst 22. So his intent is evident that the heir at the Common Law should not take But on the first point Iudgment was given for the Defendant Term. Mich. 25 Car. II. in Communi Banco Anonymus IF a man be lyable to pay a yearly sum as Treasurer to a Church or the like to a Sub-treasurer or any other and dies the money being in arrear an Action of Assumpsit cannot be maintained against his Executors for these arrears For although according to the resolution in Slade's case 4 Report which Vaughan Chief Iustice said was a strange resolution an Assumpsit or an Action of Debt is maintainable upon a Contract at the parties Election yet where there is no Contract nor any personal privity as in this case there is not an Assumpsit will not lye And in an Action of Debt for these Arrears the Plaintiff must aver that there is so much money in the Treasury as he demands and in this case of an Action against Executors that there was so much at the time of the Testators death c. for the money is due from him as Treasurer and not to be paid out of his own Estate As in an Action against the Kings Receiver the Plaintiff must set forth that he has so much money of the Kings in his Coffers Magdalen Colledge Case INdebitat ' Assumpsit against the President and Scholars of Magdalen Colledge in Oxford for thréescore pounds due for Butter and Cheese sold to the Colledge The Chancellor of the Vniversity demanded Conisance by virtue of Charters of Priviledges granted to the Vniversity by the Kings Progenitors and confirm'd by Act of Parliament whereby amongst other things power is given them to hold plea in personal Actions wherein Scholars or other priviledged persons are concerned and concludes with an express demand of Conisance in this particular cause Baldw. Their priviledge extends not to this case for a Corporation is Defendant and their Charters mention priviledged persons only Their Charters are in derogation of the Common Law and must be taken strictly They make this demand upon Charters confirm'd by Act of Parliament and they have a Charter granted by King Henry 8. which is confirm'd by an Act in the Queens time but the Charter of 11 Car. 1. which is the only Charter that mentions Corporations is not confirm'd by any Act of Parliament and consequently is not material as to this demand For a demand of Conisance is stricti Juris But admitting it material the Kings Patent
2. Suppose the Defendant had taken issue upon the Statutes being burnt and it had been found to have béen burnt and yet had been found afterwards the Defendant could not have any benefit of this Verdict He said it was a proper case for Equity Slater Carew DEbt upon a Bond. The Condition was that if the Obligor his heirs Executors c. do yearly and every year pay or cause to be paid to Tho. and Dor. his wife during their two lives that then c. the Husband dies and the question was whether or no the payment should continue to the Wife Serjeant Baldwin argued that the money is payable during their lives and the longer liver of them he cited Brudnel's case 5 Rep. and 1 Inst 219. b. that whenever an Interest is secured for lives it is for the lives of them and the longer liver of them and Hill's case adjudged Pasch 4 Jac. Rot. 112. in Warburton's Reports Seyse contra The interest of this Bond is in the Obligee the Husband and Wife are strangers and therefore the payment ceaseth upon the death of either of them and of that Opinion was the whole Court and grounded themselves upon that distinction in Brudnel's case betwixt where the Cestuy que vies have an interest and the cases of collateral limitations They said also that in some cases an interest would not survive as if an Office were granted to two and one of them dyed unless there were words of Survivorship in the Grant So the Plaintiff was barred Term. Mich. 26 Car. II. in Communi Banco Farrer Brooks Administrat of Jo. Brooks THe Plaintiff had Iudgment in Debt against John Brooks the intestate and took out a Fieri facias bearing teste the last day of Trin. Term de bonis catallis of John Brooks before the Execution of which Writ John Brooks dies and Eliz. Brooks administers the Sheriffs Bayliff executes the Writ upon the Intestates Goods in her hands Vpon this Serjeant Baldwin moved the Court for Restitution for that a Fieri facias is a Commission and must be strictly pursued Now the words of the Writ are de bonis of John Brooks and by his death they cease to be his Goods The Plaintiff will be at no prejudice the Goods will still remain lyable to the Iudgment only let the Execution be renewed by Scire facias to which the Administratress may plead somewhat Wyndham The property of the Goods is so bound by the Teste of the Writ as that a Sale made of them bona fide shall be avoided which is a stronger case And since the Intestate himself could not have any plea why should we take care that the Administrator should have time to plead And of that Opinion was all the Court after they had advised with the Iudges of the Kings Bench who informed them that their practice was accordingly But Vaughan faid that in his Opinion it was clearly against the rules of Law But they said there were cases to this purpose in Cr. Car. Rolls Moor c. Liefe Saltingstone's Case EJect ' firmae The case upon a special Verdict was thus viz. Sir Rich. Saltingstone being seized in Fee of Rees-Farm on the 17th day of Febr ' in the 19th year of the King made his Will in writing in which were these words viz. for Rees-Farm in such a place I will and bequeath it to my Wife during her natural life and by her to be disposed of to such of my Children as she shall think fit Sir Richard dyed his Wife entred and sealed such a Writing as this viz. Omnibus Christi fidelibus c. Noveritis that whereas my Husband Sir Richard Salting-stone c. reciting that clause in the Will I do dispose the same in manner following that is to say I dispose it after my decease to my Son Philip and his heirs for ever The Wife died and Philip entred and dyed and left the Lessor of the Plaintiff his Son and heir The question was what Estate Philip took or what Estate the Testator intended should pass out of him This case was argued in Easter-Term last past by Serjeant Scroggs for the Plaintiff and by Serjeant Waller for the Defendant and in Trinity-Term by Serjeant Baldwin for the Plaintiff and Serjeant Newdigate for the Defendant They for the Plaintiff insisted upon the word dispose that when a man deviseth his Land to be disposed by a stranger it has been always held to be a bequeathing of a Feé-simple or at least a power to dispose of the Fee-simple 19 H. 8. 10. Moor 5 Eliz. 57. per Dyer Weston Welshe but they chiefly relyed on Daniel Uply's case in Latch The Defendants Councel urged that the heir at Law ought not to be disinherited without very express words That if the Devisor himself had said in his Will I dispose Rees-Farm to Philip that Philip would have had no more then an Estate for life and what reason is there that the disposal being limited to another should carry a larger Interest then if it had been executed by the Testator himself This Term it was argued at the Bench and by the Iudgments of Ellis Wyndham Atkyns Iustices the Plaintiff had Iudgment they agreed that the Wife took by the Will an Estate for her own life with a power to dispose of the Fee She cannot take a larger Estate to her self by implication then an Estate for life because an Estate for life is given to her by express limitation 1 Bulst 219 220. Whiting Wilkins case For cases resembling the case in question were cited 7 Ed. 6. Brook tit Devise 39. 1 Leon. 159. Daniel Uply's case Clayton's case in Latch It is objected that in Daniel Uply's case there are these words at her will and pleasure to which they answered that if she have a power to dispose according to her discretion and as she her self pleaseth and then expressio eorum quae tacite insunt nihil operatur If I devise that J. S. shall sell my Land he shall sell the Inheritance Kelloway 43 44. 19 H. 8. fol. 9. Where the Devisor gives to another a power to dispose he gives to that person the same power that himself had Vaughan Chief Justice differed in Opinion he said it is plain that the word dispose does not signifie to give for if so then it is evident that the Lessor of the Plaintiff cannot have any title for if the Wife were to give then were the Estate to pass out of her which could not be by such an appointment as she makes here but must be by a legal Conveyance Besides she cannot give what she has not and she has but an Estate for life If then it does not signifie to give what does it signifie let us a little turn the words and a plain certain signification will appear I will and bequeath Rees-Farm to such of my Children as my Wife shall think fit at her disposal at this rate
the Wife does but nominate what person shall take by the Will This is a plain case and free from uncertainty and ambiguity which else the word dispose will be liable to But Iudgment was given ut supra Howell versus King TRespass for driving Cattel over the Plaintiffs ground The case was A. has a way over B's ground to Black-Acre and drives his Beasts over A's ground to Black-acre and then to another place lying beyond Black-acre And whether this was lawful or no was the question upon a demurrer It was urged that when his Beasts were at Black-acre he might drive them whither he would Rolls 391. nu 40. 11 H. 4. 82. Brook tit chimin On the other side it was said that by this means the Defendant might purchase a hundred or a thousand Acres adjoyning to Black-acre to which he prescribes to have a way by which means the Plaintiff would lose the benefit of his Land and that a Prescription presupposed a grant and ought to be continued according to the intent of its original Creation The whole Court agreed to this And Iudgment was given for the Plaintiff Warren qui tam c. versus Sayre THe Court agreed in this case that an Information for not coming to Church may be brought upon the Stat. of 23 Eliz. only reciting the clause in it that has reference to Stat. 1. of the Queen and that this is the best and surest way of declaring Term. Hill 26 27 Car. II. in Com. Banco Williamson Hancock Hill 24 25 Car. 2. Rot. 679. TEnant for life the Remainder in Tail Tenant for life levies a Fine to J. S. and his heirs to the use of himself for years and after to the use of Hannah and Susan Prinne and their heirs if such a sum of money were unpaid by the Conusor and if the money were paid then to the use of the Conisor and his heirs And this Fine was with general warranty The Tenant for life died the money unpaid and the warranty descended upon the Remainder-man in Tail And the question was whether the Remainder-man were bound by this warranty or not Serjeant Maynard argued that because the Estate of the Land is transferred in the Post before the warranty attaches in the Remainder-man that therefore it should be no Bar. He agréed that a man that comes in by the limitation of an use shall be an Assignee within the Statute of 32 H. 8. cap. 34. by an equitable construction of the Statute because he comes in by the limitation of the party and not purely by Act in Law but this case of ours is upon a collateral garranty which is a positive Law and a thing so remote from solid reason and equity that it is not to be stretch'd beyond the maxime That the Cestuy que use in this case shall not vouch is confessed on all hands and there is the same reason why he should not rebutt He said the resolution mentioned in Lincoln Colledge case was not in the case nor could be the warranty there was a particular warranty contra tunc Abbatem Westmonasteriensem successores suos which Abby was dissolved long before that case came in question He said Justice Jones upon the arguing of Spirt Bence's case reported in Cr. Car. said that he had been present at the Iudgment in Lincoln Colledge case and that there was no such resolution as is there reported Serjeant Baldwin argued on the other side that at the Common Law many persons might rebutt that could not take advantage of a warranty by way of Voucher as the Lord by Escheat the Lord of a Villain a Stranger a Tenant in possession 35 Ass placito 9. 11 Ass placito 3. 45 Ed. 3. 18. placito 11. 42 Ed. 3. 19. b. a fortiori he said he that is in by the limitation of an use being in by the act of the party though the Law co-operate with it to perfect the assurance shall rebutt The Court was of Opinion that the Cestuy que use might rebutt that though Voucher lies in privity an abater or intruder might rebutt F. N. B. 135. 1 Inst 385. As to Serjeant Maynard's Objection that he is in the Post they said they had adjudged lately in Fowle Doble's case that a Cestuy que use might rebutt So it was held in Spirt Bence's case Cr. Car. and in Jones 199. Kendal Foxe's case That Report in Lincoln Colledge case whether there were any resolution in the case or no is founded upon so good reason that Conveyances since have gone according to it Atkyns said there was a difficult clause in the Statute of Uses viz. That all and singular person and persons c. which at any time on this side the first day of May c. 1536. c. shall have c. By this clause they that came in by the limitation of an use before that day were to have the like advantages by Voucher or Rebutter as if they had béen within the degrees If the Parliament thought it reasonable why was it limited to that time Certainly the makers of that Law intended to destroy Vses utterly and that there should not be for the future any Conveyances to Vses But they supposed that it would be some small time before all people would take notice of the Statute and make their Conveyances accordingly and that might be the reason of this clause But since contrary to their expectations Vses are continued he could easily be satisfied he said that Cestuy que use should rebutt Wyndham was of Opinion that Cestuy que use might vouch he said there was no Authority against it but only Opinions obiter They all agreed for the Defendant and Iudgment was given accordingly Rogers versus Davenant Parson of White-Chappel NOrth Chief Justice The Spiritual Court may compell Parishioners to repair their Parish-Church if it be out of Repair and may Excommunicate every one of them till it be repaired and those that are willing to contribute must be absolved till the greater part of them agrée to assess a Tax but the Court cannot assess them towards it it is like to a Bridge or a High-way a Distringas shall issue against the Inhabitants to make them Repair it but neither the Kings Court nor the Iustices of Peace can impose a Tax for it Wyndham Atkyns Ellis accorded The Church-Wardens cannot none but a Parliament can impose a Tax but the greater part of the Parish can make a By-Law and to this purpose they are a Corporation But if a Tax be illegally imposed as by a Commission from the Bishop to the Parson and some of the Parishioners to assess a Tax yet if it be assented to and confirmed by the major part of the Parishioners they in the Spiritual Court may proceed to Excommunicate those that refuse to pay it Compton Vx. versus Ireland Mich. 26 Car. 2. Rot. 691. SCire facias by the Plaintiffs as Executors to have Execution of a Iudgment
the Sheriff because he is compellable to let him to bail but this is an Action at the Common Law for a false Return which if it should not be maintainable the design of the Statute would be defrauded for the Plaintiff cannot controll the Sheriff in his taking bail but he may take what persons and what bail he pleaseth and if he should not be chargeable in an Action for not having the body ready the Plaintiff could never have the effect of his Suit and although the Sheriff be chargeable he will be at no prejudice for he may repair his loss by the bail-bond and it is his own fault if he takes not security sufficient to answer the Debt The last clause in the Statute is That if any Sheriff return a Cepi corpus or reddidit se he shall be chargeable to have the body at the day of the Return as he was before c. that if implies a Liberty in the Sheriff not to return a Cepi corpus or reddidit se But notwithstanding by the opinion of North Chief Justice Wyndham Atkyns Justice the Plaintiff was barred Bowles Lassel's case they said was a strong case to govern the point and the return of paratum habeo is in effect no more then if he had the body ready to bring into Court when the Court should command him and it is the common practice only to amerce the Sheriff till he does bring in the body and therefore no Action lies against him for it is not reasonable that he should be twice punished for one Offence and that against the Court only Scroggs delivered no Opinion but Iudgment was given ut sup Cockram Welby ACtion upon the Case against a Sheriff for that he levied such a sum of money upon a Fieri facias at the Suit of the Plaintiff and did not bring the money into Court at the day of the return of the Writ Per quod deterioratus est dampnum habet c. the Defendant pleads the Statute of 21 Jac. of Limitations To which the Plaintiff demurs Serjeant Barrell This Action is within the Statute It ariseth ex quasi contractu Hob. 206. Speak Richard's case It is not grounded on a Record for then nullum tale Recordum would be a good plea which it is not it lies against the Executors of a Sheriff which it would not do if it arose ex maleficio Pemberton This Action is not brought upon the Contract if we had brought an Indebitatus Assumpsit which perhaps would lie then indeed we had grounded our selves upon the Contract and there had been more colour to bring us within the Statute but we have brought an Action upon the case for not having our money here at the day Per quod c. North. An Indebitatus Assumpsit would lie in this case against the Sheriff or his Executor and then the Statute would be pleadable I have known it resolved that the Statute of Limitations is not a good plea against an Attorny that brings an Action for his Fees because they depend upon a Record here and are certain Next Trinity Term the matter being moved again the Court gave Iudgment for the Plaintiff Nisi causa c. if the Fieri facias had been returned then the Action would have beén grounded upon the Record and it is the Sheriffs fault that the Writ is not returned but however the Iudgment in this Court is the foundation of the Action Debt upon the Stat. of 2 Edw. 6. for not setting out Tythes is not within the Stat. for oritur ex maleficio so the ground of this Action is maleficium and the Iudgment here given In both which respects it is not within the Statute of Limitations Barrow Parrot PArrot had married one Judith Barrow an Heiress Sir Herbert Parrot his Father and an ignorant Carpenter by vertue of a dedimus potestatem to them directed took the conusance of a Fine of the said Judith being under age and by Indenture the use was limited to Mr. Parrot and his wife for their two lives the remainder to the Heirs of the Survivor about two years after the wife died without issue and Barrow as heir to her prayed the relief of the Court. Vpon examination it appear'd that Sir Herbert did examine the woman whether she were willing to levy the fine and asked the husband and her whether she were of age or not both answered that she was She afterwards being privately examin'd touching her consent answered as before and that she had no constraint upon her by her husband but she was not there question'd concerning her age Sir Herbert Parrot was not examined in Court upon Oath because he was accused and North said this Court could no more administer an Oath ex Officio then the Spiritual Court could North Wyndham There is a great trust reposed in the Commissioners and they are to inform themselves of the parties age and a voluntary ignorance will not excuse them But Atkyns opposed his being fined he cited Hungates case Mich. 12 Jac. Cam. Stell 12. Cook 122 123. where a Fine by Dedimus was taken of an Infant and because it was not apparent to the Commissioners that the Infant was within age they were in that Court acquitted But North Wyndham Scroggs agreed that the Son should be fined for that he could not possibly be presumed to be ignorant of his Wifes age Atkyns contra But they all agreed that there was no way to set the Fine aside Term. Trin. 29 Car. II. in Communi Banco Searle Long. QUare Impedit against two one of the Defendants appears the other casts an essoyn wherefore he that appear'd had idem dies then he that was essoyn'd appears and the other casts an essoyne Afterward an issued for their not Attachment appearing at the day and so Process continued to the great distress which being return'd and no appearance Iudgment final was ordered to be entred according to the Statute of Marlebr cap. 12. It was moved to have this rule discharged because the party was not summoned neither upon the Attachment nor the great distress and the Sureties returned upon the Process were John Doo Richard Roo an Affidavit was produced of Non-summons and that the Defendant had not put in any Sureties nor knew any such person as John Doo Richard Roo It was objected on the other side that they had notice of the suit for they appeared to the Summons and it appeared that they were guilty of a voluntary delay in that they forched in essoyne and the Stat. of Marlebr is peremptory wherefore they prayed Iudgment Serjeant Maynard for the Defendants If Iudgment be entred against us we have no remedy but by a Writ of Deceit Now in a Writ of Deceit the Sumners and veyors are to be examin'd in Court and this is the Trial in that Action but feigned persons cannot be examined It is a great abuse in the Officers to return such
against the Infant Sir Heneage Finch Solicitor General The Witnesses who swear that the Earl said He would give the Estate to her prove nothing to the purpose For he did so but upon a condition That they did not hear The after-consent of the Earls or the Countess ought not to make it good which consent at last perhaps was extorted by importunity or compassion For at first they disapproved the Marriage Marrying without consent and dying without issue are coupled in the same Line and the Estate shall as effectually pass over to the Defendant upon the one Limitation as the other For such consent is matter ex post facto and suspitiously to be scan'd For we ought in this Case by Law to proceéd strictly and not derogate from my Lord Newport's intent which plainly appears by the letter of his Will that his Grand-Child should ask consent of such he had thereby appointed to consent before her Marriage were solemnized the actual solemnization of which was an act so permanent that it would admit of no alteration or dissolution An act of such force and efficacy tending clearly and immediatly to the ruine of their Right and Title to the Estate in question and rendring it wholly uncapable of Reviver by any other means than what the Common and Civil Laws of this Realm do permit The post-consent therefore will not avail the Plaintiffs in this Court. Otherwise the Defendant claiming by this Limitation should have indeéd advantage but such as is inconsiderable being liable to alteration by the pleasure of this Court. And for a strict observation of the Testators words the same ought to be in Equity as well as at Law What great respect the old Heathens paid to the Wills of deceased persons may appear in these following Verses Sed Legum Servanda fides suprema voluntas Quod mandat fierique jubet parere necesse est The Countess saying likely in passion That she might marry whom she would c. did not amount to a dormant Warrant to her to marry without consent I am upon Conjecture still that the Plaintiff will insist upon these particulars for it looks as if they would because they read them Doubtless the primary intention of the Clause was in terrorem But the Secondary was that if she offended she should undergo the penalty His intention is to be gathered out of the words only and what ever they say the Earl intended does not press the Question Our Frée-hold is setled in us by vertue of an Act of Parliament I lay it down for a Foundation That a Father may settle his Estate so as that the Issue shall be deprived of it for Disobedience and not be relievable in Equity And now 't is not possible that any Council could advise a man to do it stronger than it is done in this Case And shall a Child break these Bonds and look Disobedience in the face here V. 1 Cr. 476. post 694. 696. If it had been only provided that she should marry with the consent c. and no further it might have been somewhat But since he goes on and makes a Limitation over c. he becomes his own Chancellour and upon this difference are all the Presidents and even those of devising portions viz. devising them over or not as I have understood Infancy can be no excuse in case of the breach of a condition of an Estate in which the Infant is a Purchasor So that nothing rests now in this Case but the point of Notice And why should not the Infant be bound to take notice in this Case as he is to take notice in case of a Remainder wherein he is a Purchasor But if notice be necessary it is not to be tried here now If we had brought an Ejectment and supposing notice had been necessary we had failed in the proof thereof should we have beén har'd for ever as by this perpetual Injunction we should be and shall it be done now without proof If we are not bound to prove Notice at Law much less are we bound to prove it here This Case is Epidemical and concerns all the Parents of England that have or shall have Children that the Obligations which they lay upon their Children may not be cancelled wholly and this Court under colour of Equity protect them in it and be a City of Refuge for relief of such the foulness of whose actions deny them a Sanctuary Pecke If Infancy would excuse such a Clause would signifie nothing For most persons especially of that Sex marry before full age The Lords give no reason why they changed their Opinions Serjeant Fountain Yelverton's Case in 36 Eliz. is a President in the Point for us and Shipdam's Case is much like it This being of a devise Land and that of Money which if it were paid the Land was to go over The grand Objection is That here is an Estate vested by a settlement which is not to be avoided or defeated But I doubt whether a man can lay such a Restraint that there shall not be Relief in any case of Emergency and Contingency Part 712. 3. V. in Leo. 37. It is a part of the fundamental Iustice of the Nation that men should not make Limitations wholly unalterable as by the Common Law men cannot make a Feé unalienable You give relief every day where there are express Clauses that there shall be no relief in Law or Equity where a thing is appointed to be c. without relief in Law or Equity you relieve against them and look upon them to be void In our Case suppose she had married a great Lord or suppose a person had brought notice of the Trustees consent would you not have given relief But secondly I deny the Assumption This Case is not so I agrée it had been well done if they had askt my Lady Newports consent But is there a word in the Will that if the Plaintiff did not he should have no relief in Equity The Estate was devised to my Lady Newport during her life so that the Plaintiff could not be in possession and she might have lived till the Plaintiff was 21 years old Could not my Lady Newport have said Have a care how you marry for you forfeit the Estate if you marry without the consent of two of us three All Ingredients and Circumstances must be taken in a matter of Equity Is it an argument to say He has no Estate therefore take away his Wifes Estate then there will be nothing to maintain her It is agréed That if the Approbation had been precedent it had been well Now she had no notice before the Marriage that it was necessary and when she had that notice she got the approbation and that though subsequent is good enough because it was askt and gotten as soon as she had Notice that she ought to have it The Will is hereby sufficiently observed for the intent of the Will was that she should have such an