in Bar to wit the Fine with proclamations pleaded by Mary Taylor and the warranty pleaded by Robert Leigh and 28 others of the Ter-tenants or by any of these pleas or not And as to the first If he in remainder depending upon an estate in Tayl may maintain a Writ of Error to reverse a Recovery against the first Tenant in Tayl after his death without issue And I conceive clearly that he in the remainder shall have a Writ of Error for the Writ of Error doth always pursue the nature of the Land and not the privity of the blood And therefore 5 H. 8. the Writ of Error shall go with the Land and therefore the Heir in special tayl shall have it although there be another Heir at the Common-Law And so in Fitz Herb. N. B. 21 K. He who is Heir to the Land that is lost shall have a Writ of Error and not the Heir at Common-Law as if Land in Borough-English be lost by erroneous Iudgment the younger Son shall have a Writ of Error and 3 H. 4. 19. The Heir in special tail shal have the Writ of Error although there be another Heir at the Common Law And 1 Mariae Dyer 90. Verneys Case The Writ of Error shall be brought by him who had the thing whereon erroneous Iudgment was given And as the especial Heir shall have the Writ of Error so shall he also in remainder or reversion upon an Estate for life after the death of the Tenant for life 4 H. 8. 21 H. 6. 29. But the sole Objection that hath any coulor against this was Object that this Writ of Error ought to be given to him in remainder by the Common-Law for it is not given by the Statâ—te of the 9th of Rich. 2. and then there can be no remainder upon an Estate tail at the Common-Law and therefore he in such remainder cannot have any Writ of Error But this is easily answered for the Common-Law being Answer that when an erroneous Recovery is had against a pâ—rticular Tenant that he in the Reversion or Remainder shall have a Writ of Error after the determination of the particular Estate it follows that when this new particular Estate is made by the Statute of Westm 2. he in the remainder shall have the same remedy And this is proved by the case of the Tenant in Tayl for although that his Estate was not at the Common-Law yet now he shall have all Actions which the Common-Law gives to a Tenant in fee which may stand with his Estate and therefore he shall have a Writ of Escheat a Quod permittat Nat. B. 124. 4 Ed. 5. 48. Nat. B. 212. and so he shall have an Assize and many other Writs which lie for a Tenant in fee at the Common-Law And for Authorities in this point Dyer 188. That he in the remainder after the Estate-tail spent shall have a Writ of Error and so is it in Dyer 40. in Verneys Case And in the 3 Rep. fol. 3. B. if is resolved that he who hath a remainder expectant upon an Estate in Tayl shall have a Writ of Error upon a Iudgment given against the Tenant in Tayl although there were no such remainder at the Common-Law for when the Statute de Donis Conditionalibus does enable the Donor to limit a remainder upon the estate-Estate-tail all actions which the Common-Law doth give to the privies in Estate are by the same act as incidents tacitly given also according to the rule of the Common-Law and therefore as he in Reversion or Remainder upon an Estate for life shall have a Writ of Error by the Common-Law upon a Iudgment given against a Tenant for life although that they were not parties by Hyde Pryer Voucher c. so since the Statute de Donis conditionalibus shall he have who hath a Reversion or Remainder expectant upon an Estate in Tayl. And therefore I conceive the Writ of Error is good notwithstanding that Objection But now it is to be considered if this Plea of non-tenure shall avoyd the Writ of Error and I conceive it will not for three Reasons 1. I conceive that it is no plea to abate the Writ for the Plaintiffs might have reversed the Recovery against the Lessors of the Reversion onely without having made the Ter-tenants parties for the Writ of Error being grounded upon the Recovery does always lie against the parties to the Iudgment and their Heirs and may be reversed against them although they have nothing in the Land and this is clear by Nat. Brev. 107. and 26 Assis 12. A Writ of Error does lie against him who recovers and after the Error found a Scire facias shall issue against the Tenant and 42 Assis 22. and 44 Ed. 3. and 10 Ed. 4. 13. Non-tenure is no plea in a Writ of Error for the party to the Iudgment or his Heir And here in this case if those who have pleaded Non-tenure are not Tenants they are at no loss for they can lose nothing but this plea does discharge themselves onely and the Scire facias remains good against the Heirs and the other Ter-tenants 2. If Non-tenure could be a good Plea for the Ter-tenants in a Scire facias yet at the least it ought to be in such a Scire facias wherein the Ter-tenants are named and not in such a general Writ as this is For here the Plaintiffs have pursued their Scire facias in as good a form as may be viz. generally against the Heirs and the Ter-tenants and if there be any default it is in the Sheriff who hath returned those to be Tenants who indeed are not so and it shall be very hard if the Writ should abate for default of the Sheriff 20 Ed. 3. Scir facias 121. In a Scire facias on a Recognizance against the Ter-tenants it was said that one of them that ware warned had but a Lease for years of such a one who had the Freehold Iudgment of the Writ c. And there Birton said That the Sheriff had a general command to warn the Ter-tenants wherefore this is no Plea to the Writ And Hill and Wilby answered that it was otherwise for that the Plaintiffs at their peril should name the Ter-tenants in their Writ whereupon there was a new Writ Whereupon I observe that if the Writ be special naming the Ter-tenants as it was anciently then it ought to be so but of late such course hath been changed as appears by the 8 of H. 4. 18. and the Writ awarded generally and therefore such special Non-tenure shall be a good Plea for it is the default of the Plaintiff to pursue his Writ against one who is not Tenant but when the Writ is general Non-tenure is no Plea to the abatement of the Writ 48 Ed. 3 15. 8 H. 18. 48 Assis 2. and the 2 H. 4. 18. B. In a Writ of Account against the Sheriff of Northumberland of a Receit in Newcastle upon Tine and it was pleaded that Newcastle was
Sister and he to enter at the age of one and twenty years and if any of his Sons died before the age of one and twenty years his part should be divided amongst the Sâ—â—vivors and so every one should be heire to the other and all of them came of age and paid the money and it was holden that each of them had an Estate in Fee and not in Taile and Dyer 357. Chick did devise the Fee-simple of a Messuage to A. his wife and after her death to W. his Son which W. was his Heir apparent A. did enter and married again and dyed having Issue by him and adjudged that A. had an Estate for life the Reversion to W. for life the Remainder to A. in Fee and 14 Eliz. a. One seised of Lands in Fee devised them to B. and the heirs of his body and if he died that it should remain to A. in fee yet B. shall have an Estate in Taile by the first words and shall not be restrained by the last words And Trinit 37 Eliz Rot. 382. Bacon against Hill and having three Tenements did devise them to his wife for life and then one of them to each of his three Sons and if any did die his part should remain to the Survivors and if any had Issue and died before he entred his Issue should have it and R. one of the Sons had Issue the wife died and R. died and adjudged that his Issue should have nothing Object But it may be objected that Francis cannot die without heire so long and his Sisters are living and therefore it shall be construed that the Devisor did intend only the heires of his body Answer But it does not appear that the Daughters were of the whole blood to Francis so that they may be heires to him for although where a Brother or Sister is spoken of in pleading it shall be intended of the whole blood because a Brother of the half blood is but half a Brother yet here when the Father onely does call them his Sons and Daughters and is so found by the Iury that they were his Sons and Daughters yet this is no proof that they were of the whole blood for they are daughters to the Father by what ever wife they were had And so I conceive upon the whole matter that the wife does take an Estate for life by the devise and that the Son shall have a Fee-simple but yet subject to this future devise sc if he die without heire that the Wittingb shall have it and so all the Will shall be good except the limitation to the Daughters for their lives and it cannot be intended that the Devisor did intend to prefer the Wittingb being his collaterall Cosins before the Issue of his Daughters which Issues are of his owne body Judgment And before that I argued againe Hillar 14 Jacob. Iudgment was given for the Plaintiff for they all agreed that Francis had but an Estate-tail by these words of the Will viz. If M. A. and A. do out live their Mother and their brother Francis and his heires and Francis cannot die without heire so long as his Sisters are living and therefore the word Heirs shall not be intended Heires generall but heires of his body wherefore Iudgment was entred ut supra c. Mich. 14 Jac. Mason against Manning IN an Ejectment upon a Lease made by John Crooker and Christopher Crooker the two and twentieth of May 14 Jac. of two houses forty acres of Land forty of Meadow and forty of Pasture in S. Needs Habendum from the Annunciation last past for three years The Ejectment was the twenty third of May in the same yeare The Defendant as to the force and armes c. pleaded not guilty and as to the residue he said that Queen Elizabeth was seised in Fee of the Mannor of S. Needs whereof the said Tenements are and time out of mind were parcell and that the Queen the ninth of March in the one and thirtieth year of her Raign by her Letters Patents shewed here under the Exchequer Seal did devise the said Tenements to Robert Croker for life the Remainder to Edward Bett for life the Remainder to Edward Adams for life the Queen dies whereby the Reversion does descend to the King Robert Croker dies and the thirtieth of March 14 Jacob. Edward Bet doth devise the said Tenements to the Defendant from the Annunciation last past for three years whereby he entred and was possessed untill the said John and Christopher Croker did oust him and did disseise the said Edward Bet whereby they were seised in fee by disseisin and made the Lease to the Plaintiff upon which the Defendant claiming his term did enter and did out him and the Defendant was and yet is possessed of the said Tenements the Reversion to Edward Bet for life the remainder to Edward Adams for life the Reversion to the King unde non intendit quod curia domino Rege inconsulto ulterius procedere vellet aut debeat and prayed ayd of the King and did aver the life of Edward Bet. And I conceive that ayd is not grantable in this case 1. Because that it is but an Action of Trespass 4 H. 6. 10. Tenant for life of a Lease from the King shall not have ayd of the King for that no Freehold is to be recovered and he is able to plead to all matters in a Trespass 2. The Defendant shall not have ayd of the King because he is not his immediate Tenant but he may pray in ayd of Edward Bet his Lessor and he of the King 1 H. 4. 18. In a Scire facias to execute a Fine the Tenant said that the Land was given to him for life the remainder to N. in Tail the remainder to W. in fee who was attaint of Treason whereby his remainder came to the King and he prayed ayd c. And the Court said that he ought to pray ayd of N. and he of the King and after he said that W. was also attaint of Treason whereby he had ayd of the King 33 H. 6. 29. In a Trespass where the Defendant justified as Baily of a Hundred to distrain for amercements and prayed ayd of the King and by Prisot he could not have it for the Sheriff is the immediate Officer to the King and to this agrees 11 H. 6. 39. where such justification was for taking of Toll and 9 H. 6. 26. In a Replevin the Defendant made Conusance as Baily of I. who held of the King for life and prayed ayd of the King and adjudged he should not have it for there is no privity betwixt the King and him because he is not immediate and 28 H. 6. 13. A man shall not have ayd of the King and Queen or of the King and his Tenant for life but first of the Queen or Tenant for life and they of the King and a man shall not have ayd of the King but where he is Baily or Servant
time as in 11 Ed. 3. and 8 H. 5. 10. and 2 H. 4. 2. The Successor shall maintain an Action of Waste against such Lessee for life but a Lease for years is meerly determined by the death of the Lessor 38 H. 8. 6. Leases 18. and 24 H. 8. 6. There a diversity is taken and agreed between a Lease for life made by a Parson in which case the acceptance of the Rent or fealty by the Successor shall make it good for his time and a Lease for years which is meerly determined by the death of the Lessor so that no acceptance of the Rent or fealty can make it good and therefore the acceptance of the Rent in our case which is found to be made by the Lessor himself and all the succeeding persons and also by the Rule of these Books is nothing to the purpose and therefore I shall speak no more of that Vide 2 Ed. 6. 33. Dyer 239. And as to the second Point sc If here be any sufficient confirmation of the Lease against the Plaintiff or not The Defendant hath endeavoured to have many things to be found by the Iury to make a confirmation 1. The expresse confirmation by Valentine Knightley the Father of Sir Richard 2. The Grant of the Lease by Sir Richard to Edward Knightley his Son 3. The taking of the Profits by Sir Richard to the use of his Son being within age 4. The Lease made by Sir Richard the 21. of Eliz. to Rogers the Incumbent for I cannot conceive for what cause any of these things are found unlesse it be to opperate as to a confirmation And as to the first third and fourth I do conceive that they nor none of them can make this Lease good for by the first it is found that Valentine at the making of his confirmation had but an Estate for life of Ursula Knightley the which is meerly determined by the death of Valentine and although Ursula be not found dead yet is not that materiall for this Advowson being a thing that lies only in Grant and not in Law cannot go to any Occupant And therefore the death of Valentine hath determined this as fully as if Ursula had been dead And therefore the diversity is when a rent or other thing which lies in grant is granted to one and his heirs for the life of another and the Grantee dies I agree that the heir by speciall limitation shall have this as Littleton 169. 19 Ed. 3. Account 56. but no Estranger can have it and the reason is because that the sole means that the Law doth give to one to gain an Estate of Occupancy is by Entry but no Entry can be in an Advowson Rent or any other thing that lies in Grant and therefore here can be no Occupancy 26. Assise 38. and 12 H. 7. 16. If he in Reversion doth enter after the Occupant and brings an Action against him the Occupant ought to plead the Lease for Cestuy que use whose Estate he hath but for a Rent or an Estate that lies in Grant none can plead a que Estate but ought to entitle himself by the Grant and that cannot any one do in this Case And as to the third matter of confirmation which is the taking of the Profits by Sir Richard Knightley this cannot be any confirmation of the Lease for although the assent of the Patron be sufficient yet it ought to be by Deed otherwise it cannot be good And as to the fourth which is the Lease made by Sir Richard by Rogers the Incumbent that is not any confirmation 1. Because this Lease does not concern the Lease made by Briggs but is an absolute and originall Lease made by Sir Richard himself as Owner of the Rectory 2. Because that at the making of this Sir Richard had nothing in the Rectory for he had granted all his term before to Edward Knightley and therefore his Lease to Rogers is void unlesse it be by way of Estoppell Then as to the second matter of confirmation sc whether the Grant of the Term by Sir Richard to Edward Knightley I will not agree to it at all but according to the resolution in Hodges case that this is a confirmation as good as Sir Richard could make it But this confirmation being in the nature of a charge upon the Advowson ought to be directed by the Estate which Sir Richard then had and being derived out of that Estate it cannot endure longer then the Estate as in Littleton 122. a. If a Parson doth charge the Glebe and the Patron and Ordinary confirm it the Grant shall be in force but in such case the Patron ought to have an Estate in fee for if he hath an Estate but for life or in Taile the Grant is good but during his life and the life of the Parson who grants it 31 Ed. 3. Grants 61. A Parson grants an Annuity to a Pryor which is confirmed by the Tenant in Dower of the Advowson this is not good after the death of the Tenant in Dower and Dyer 252. A Chantry Priest made a Lease for ninety nine years which was confirmed by the Patron who was Tenant in Taile and after the Chantry is dissolved by the 1. of Ed. 6. it is a question if the King shall avoid the Lease but it was agreed clearly that if the Chantry had continued that the Lease should be void against the Incumbent who comes in upon the presentation of the Tenant in Taile And this Rule being clear as I conceive it is that the confirmation shall not bind according to the Estate of the Patron the Estate which Sir Richard had in the Advowson at the time of his assignment which does imply a confirmation is to be considered And as to that the Case is That Valentine being Tenant in Tail of the Advowson by Deed did give and grant the Advowson to one in fee to the use of himself during the life of Ursula the Remainder to the use of Sir Richard being his Issue in Taile and thereupon it follows that Sir Richard had an Advowson in Remainder in fee-Fee-taile depending on an Estate for anothers life but this fee was determinable upon the death of Valentine the Tenant in Taile But objection was made in the Argument against one Object that this Advowson being found to be granted by Valentine shall be intended to passe by Livery for it was said that an Advowson might passe by Livery and then here is a discontinuance But I deny first that an Advowson can passe by Livery Answer but admitting it would yet secondly Shall it not be taken by this Verdict to passe so And as to the first I must confesse that there are some suddain opinions in your Book that an Advowson may passe by Livery as 43 Ed. 3. 5. 11 H. 6. 4. and 20 Ed. 4. 5. yet are there many Authorities against it and so is the true reason of the Law 18 Ed. 3. 16. Shard It was never heard that
one could enter into an Advowson therefore no Livery can be made and 11 H. 4. 3. 6. An Advowson in grosse cannot passe without Deed 9 Ed. 4. 47. a. One cannot grant Proximam advocationem without Deed Dyer 323. Advowson of the Vicaridge of D. doth passe by the Grant of all hereditaments in D. although it lies not in Livery nor is visible and Coke 9. Rep. 96. An Advowson is not manuall but is Haereditas incorporata and so Littleton 3. of things which do not lye in manuall occupation or possession as an Advowson he shall not plead as seised in his Demesne as of fee but as of fee and so Littleton 139. If Tenant in Taile grants the Advowson it is no discontinuance And the reason is apparent because that nothing can passe by Livery but that whereof possession may be taken by the Feoffor or Donor and given to him by the Feoffee or Donee And it is more colourable to say that he in Reversion upon an Estate for life may make Livery for although a Reversion be not visible or mannuall yet Terra revertens which the Grantee shall have after the Estate determined is manuall and yet I conceive that none will hold that such a Reversion so long as it continues a Reversion may passe by Livery If it be admitted that an Advowson may passe by Livery yet it shall be intended by this Verdict that it doth not passe because it is found that Valentine did grant it by Deed and there is no doubt but it may passe by Deed without Livery and therefore no Livery being found Livery shall not be intended for it shall not be intended to be a discontinuance whereby the Tenant in Taile shall do wrong when the Advowson may well passe by Deed which is no wrong And therefore I conceive that notwithstanding this objection that here is no discontinuance but only a grant of an Advowson which is determinable by the death of the Tenant in Taile who made it from whence it follows that Sir Richard at the time of his grant of the Lease had only a Remainder in fee in the Advowson determinable on the death of Valentine his Father which Estate is only charged by his confirmation for as Issue in Taile he cannot make any confirmation because he had nothing in him at that time 10 Ed. 3. 2. Confirmation 22. If the Son confirmes the Estate of the Disseisor in the life of his Father and the Father dies the Son shall not be barred by his confirmation without Warranty 13 Ed. 1. Confirmation 19. If one doth quit Claime for him and his heirs all his Right before that his Right doth happen the quite claim is nothing and so is Littleton 106. Releases and the reason of these Cases is upon the Rule of the Common Law which is that one cannot grant or charge that which one hath not By which it plainly appears that this implyed Confirmation made by Sir Richard does make the Lease good only for so long time as he hath Estate in the Advowson which is determinable by the death of Valentine And to prove that it is so determinable it is a certain Rule that all Grants and Charges made by Tenant in taile are determined with his life and so is Littleton Discontinuance 139. If Tenant in taile of an Advowson or Common does grant this in fee it is no Discontinuance for the Grantee hath no Estate but for life of the Tenant in taile who made the Grant 22 H. 3. Discontinuance 52. If a Rent be granted to husband and wife in fee and the husband grants this in fee and dies yet the wife may distrain and shall not be put to her Action 36. Assise 8. Tenant in taile of a Reversion grants the same in fee with Warranty and dies leaving Assets the Tenant for life dies and the Issue enters and his entry congeable for the Grant is meerly determined by his death so that the Warranty cannot work 38 H. 8. b. Discontinuance 35. If the King Tenant in taile grants the Land for lifâ— it is no discontinuance for a Grant without Livery makes no discontinuance but this shall not bind but during the life of the Grantor 26 H. 7. 4. Fineaux Tenant in taile of Services is like Tenant for life and by his Grant nothing doth passe but for his life and after his death the Issue may distrain but if he brings a Formedon he shall be barred by the Warranty for then he admits it to be a Discontinuance And Hil. 39 Eliz. Rot. 941. In the Common Pleas between Keen and Cox Thomas Jennings Tenant in taile the Remainder to John his Brother made a Lease for three lives according to the Statute of 32 H. 8. with Warranty and dies without Issue John being his heire who entered and agreed good for the Estate of the Lessee was determined by the death of the Lessor without Issue wherefore the Warranty could be no bar to the Remainder And although the Issue in case of Grant of a Rent by his Ancestor may have a Formedon yet that is no proof that the Grant is not determined for although it be determined yet may he admit himself out of possession if he will and is like to the Case where one takes my Rent yet he gains no possession by this but that I may distrain notwithstanding yet if I will I may admit the possession to be out of me and so maintain an Assise against the Pernor And as to the opinion in the case of Fines in the 3. Rep. That if there be Tenant in taile of a Rent or a thing which lies in Grant who grants the same by Fine and dies before the Proclamations made that the Grant is not determined but that the Proclamations may be made is grounded upon the reasonable construction of the Statute of the 4 H. 7. of Fines for otherwise the provision of the Statute that the fine shall be a bar cannot be for that is the reason there given But it hath been objected Object that because it was not found by the Iury that Sir Richard Knightley was dead it shall be intended that he is alive and then his confirmation remains in force To which I answer 1. That his being alive cannot be presumed Answer because it is not so found for although a Fee-simple being once alledged shall be intended to continue untill the contrary appears yet is it not so of an Estate-taile or such other particular Estate but he who will take advantage of such Estate ought to aver the continuance thereof and that is a certain Rule in pleading as in the 15 Ed. 3. Tenant in Taile of a Rent grants the Rent over the Grantee when he makes Title there ought to aver the life of the Tenant in Taile for by his death the Grant is determined vide Dyer 73. 19 H. 6. 73. 5 H. 7. 39. 15 Ed. 4. 6. And although there is a speciall Verdict in our Case which shall be taken more
him and his heirs for ever if B. shall have issue of his body and if he die without heirs of his body that the Land shall revert to the Donor and his heirs B. had issue which died without issue and it was adjudged that B. had but an Estate in tail and because he died without heirs of his body it was adjudged that the Donor should recover against the collaterall heire of B. And if the Law be so in Deeds or Grants executed in the life of the Donor a fortiori in a Devise which is to be taken more favourably then an estate made by Deed and therefore it is sufficient in a Devise to have the intention of the Devisor understood either to make an estate in fee or in tail although proper words to make such an estate be not used and the intent of the Devisor cannot be more manifest to have an estate in tail then in this case As to the second Point the question will be whether the younger Son hath an estate in Tail or in Fee determinable by this limitation and it seemed to them that he shall have but an Estate in tail In which the question is to which estate these words of limitation to wit living the elder Son shall be referred viz. Whether to the Estate made to the younger Son or to the Estate given to the elder for if they be referred to the Estate made to the younger there is no question but these words do abridge restrain the estate but if to the elder then they make no restraint or restriction as to the estate of the younger Son but onely limit the remainder to the elder Son on this contingency only viz. If he be alive at the time of the death of the youngest Son without issue And to prove that these words shall be referred to the estate devised to the elder brother They said That if the land had been devised to the younger Son and the heirs of his body and if he dyed without issue living the elder that the elder should have the estate to him and his heirs it is clear that the younger hath an absolute estate tail and that then the remainder to the elder shall be on this contingency viz. If he be living when the younger dies without issue And so is Frenchmans Case 1 2. Eliz. who demised land to his wife for life the remainder to Charles Frenchman and the heirs males of his body and if he died without heirs males of his body the remainder to Arthur Frenchman and the heires males of his body Charles had issue a Daughter and died without issue male and it was adjudged that the Daughter should not have the land for this contingency does not alter the Estatetail that was first limited to Charles and although the Devise in the case at Bar be to the youngest Son and his Heirs without any limitation of his body yet the limitation afterwards to wit if he die without issue does explain well enough that the heires of his body are intended and then the subsequent words living the Eldest Son cannot alter the estate first given to the younger Son And Hil. 40. Eliz. in the Kings Bench by Walmesly If one deviseth land to his Son and his heirs and further deviseth that if he die without issue that the land shall be sold yet the Son shall have an estate in fee and not in tail but otherwise if he devised that if he died without issue that the lands should remain over for in the first case he disposeth of no more of the estate by the last words then he did at the first but in the last case he disposeth of the estate it self in remainder And this was agreed by Owen 18 19. Eliz. Rot. 354. and 15. 16. Eliz. Rot. 330. where the case was That one Edward Clark being seised in fee of two houses had issue Henry and two Daughters Alice and Thomasin Henry dyed before the two daughters living the Father the Father devised one house to his daughter Alice and her heirs for ever and the other to Thomasin who was at that time but eight years of age and her heirs for ever and if she died before the age of sixteen years Alice then living Alice should have it to her and heirs and if Alice should die having no issue living Thomasin Thomasin should have the house of Alice to her and her heirs and if both of them died without issue he devised the two houses to the two Daughters of his Son Henry and their heirs and if they died without issue he devised the remainder to a stranger Proviso That if Alice should marry I. S. that Thomasin should have her part to her and her heirs and if Thomasin should dye having no Child that the daughters of Henry should have all and if they died having no Child the remainder to a stranger as aforesaid The Devisor dies then Alice marries N. but not I. S. and enters into her house Thomasin after sixteen years of age dies without issue And if Alice or the daughters of Henry should have the estate of Thomasin was the question And it was holden by three Iustices that the daughters of Henry should have it because that Thomasin did not die within the age of sixteen years and that it being objected that there was no estate tail to any of the daughters but a fee simple conditionall upon a contingent it was at last adjudged 14. Eliz. Rot. 340. that they were Tenants in tail by this Devise in Mich. 37 38. Eliz. 42. Mich. 14 15. Eliz. And Michaelmas 18. Jacobi Judgment This Case was argued by Montague cheif Iustice Doderidge Haughton and Chamberlain who all agreed that by this Devise the youngest Son had not an Estate-tail but a limited see so that by his dying without issue living the elder Son his estate was quite determined and all except Doderidge agreed that the Recovery could not hurt the future Devise But Doderidge was much against this opinion by reason of great mischeif that might ensue by making of Perpetuities in Devises and cited Archers Case and Capels Case but notwithstanding Iudgment was affirmed as aforesaid De Termin Trinitat 18 Jacob. Rot. 1198. Dawtree against Dee and others IN an Action on the Case wherein the Plaintiff Declared That he the fifth of July 16 Jacobi was and is seised in Fee of a Capital Messuage called Moor-place with the appurtenances and of 600 Acres of Land meadow and pasture in Petworth with the said Messuage used of the annual value of 100 l. which Messuage he and those whose Estate he hath in the said Messuage and Tenements therein Farmors and Tenants have time out of minde used to keep good hospitality for the relieving of the Poor in Petworth aforesaid and that in the Church of Petworth aforesaid on the said fifth of July and also time out of minde there hath been and is a little Chancel on the North part of
173. Judicium And after many arguments in this Case Hillar 20 Jacob. the Court agreed that the Demise was good and Iudgment was given for the Plaintiff Periman against Pierce and Margaret his Wife TEnant in Socage had issue by his first Wife Joan Elizabeth and Agnes and Alice and Elizabeth by his second Wife Katherine Mary William and Joan by his third Wife and by his Will did Devise his Land to Joan the younger for her life rendering 13 s. 4 d. Rent to William the remainder to William in Tayl the remainder to Elizabeth and Mary for life the remainder propinquo sanguinitatis of the Devisor for ever William dyes without issue Joan the younger dyes without issue Elizabeth had issue William Stokes and dyes Mary had issue William Pierce and dyes Joan the elder dyes having issue John Periman and William Periman Agnes and Alice dye without issue John Periman had issue John Periman the Lessor and dyes Elizabeth and Mary dye Katherine dyes without issue Elizabeth had issue George Dean and John Dean Elizabeth deviseth her Land to John Dean and his Heirs and dyes John Dean hath issue John Dean and dyes the Lessor enters and makes a Lease to the Plaintiff who enters and is ejected by the Defendants by commandment of the said John Dean the son upon which the Plaintiff brought an Ejectment And it seemeth to me that judgment ought to be given for the Plaintiff for all the Land or at least for part thereof And therefore in the first place I conceive that when William the son dyed without issue the remainder in fee did vest in John Perriman who was the eldest son of Joan the elder who was the eldest daughter of the Devisor for although the Devisor had many daughters yet his intent appeared in the Will to a single person and not to divers also it appears that he doth not intend that this remainder should vest in William his son for he deviseth to him a Rent during the life of Joan the younger and afterwards an Estate Tail cannot be in Joan the younger or any of her issues because that an express Estate for life is limited to her nor in Elizabeth or Mary for he deviseth a remainder to them for life nor in any other of his daughters for then he would have named them either by their proper names or as his daughters and not by such circumlocution as is pretended in this Case Also the words of Remainder in fee cannot extend to those daughters for they are proximae consanguinitatis which does clearly exclude his own sons and daughters for they cannot properly be termed to be of consanguinity of the blood of the father as it is said in Sir William Herberts Case Cooks Rep. 3. that filius est pars patris and this is proved by the usual pleading of a Descent for if the Plea be by any except son or daughter the form is to say That the Land descends to him as Cosin and Heir and shall shew how but if by the son or daughter then to plead as before And 30 Assis 47. Land was devised to one for life the remainder to another for life the remainder propinquioribus haeredibus de sanguine puerorum of the Devisor there it is agreed that the sons and daughters are excluded by that Devise And so here in this Case neither William the son nor any of the daughters of the Devisor can take any thing by this Devise for they cannot be said de Consanguinitate de sanguine of the Devisor but the Issues of the Children of the Devisor are comprized within these words And then I conceive that the limitation being in the singular number viz. proximo consanguinitat all the issues of those Children shall not take but one onely and that as I conceive shall be the eldest son of the eldest daughter of the Devisor which was John Periman father of the Lessor of the Plaintiff as in the 20 H. 6. 23. In an Account supposing the Defendant to be his Receivor from the Feast of St. Michael it shall be taken to be the principal Feast of St. Michael the Archangel and not the Feast of St. Michael in Monte Teneb And 13 H 4. 4. 21 H. 68. 37 H. 6. 29. If father and son be of one name scil of J. S. If J. S. be named generally in a Writ Recovery or Deed it shall be intended the father for that he is most worthy And so Pladwels Case in this Court Mich. 38 and 39 Eliz. If a woman hath a Bastard and two legal issues and Land be given to one for life the remainder to the eldest issue of the woman the eldest legal issue shall take and not the bastard although he be the eldest issue for general words shall always be taken in the most worthy sence And so here the Devisor did dispose of his Estate to Joan the younger rendering Rent to William his son the remainder to William in Tail the remainder to two of his daughters scil to Elizabeth and Mary for life the remainder proxim consanguin c. in fee By which words it is apparent that the Devisor intended that for the default of the issues of William and after the death of Elizabeth and Mary the Estate should remain to one who was next of blood to him and that is John Periman the eldest son of his eldest daughter But admitting that all the issues of the daughters shall be in equal degree to take by this remainder as well as the eldest son of Joan the eldest daughter yet I conceive that those daughters who had an Estate devised to them by Will are excluded Cooks 8 Rep. 95. B. Always the intention of the Devisor expressed in his Will is the best Expositor and Director of his words and therefore if Land be devised to one in perpetuum this shall pass a fee although it be otherwise in a Grant So if one deviseth Land to another to dispose of or sell at his pleasure this is a fee to the Devisee Litt. 133. 19 H. 8 9. B. And so in our Case the intent of the Devisor appears to dispose of his Land among his Children and their issues as in Trin. 38 Eliz. Ewre and Heydons Case Heydon was seised of a Messuage in D and of three houses and certain Land in Watford did devise his Messuage in D and all his Land in Watford it was judged the houses in Watford did not pass in regard of the express mentioning the houses in D. and this was affirmed in a Writ of Error Edmund Meskin against John Hickford Administrator of Henry Machin IN an Audita Querela because that the 11 Ed. 1. it was Enacted That in regard that Merchants which heretofore had lent their goods to divers persons were fallen into poverty because they had not such speedy remedy provided for them for the Recovery of their Debts Ac ratione inde multi Mercatores desistebant venire in hanc terram cum Merchandizis
conceive that the request is made in good time enough Answer for two Reasons The Estate here is to be made by the Defendant and although he be not bound to do it without request yet may he do it or at least he may offer to do it without any request and therefore if there be any loss in the not doing of it it is his own fault because he did not offer to make the Estate and is not the Plaintiffs fault and if he had offered to make the Estate and the Plaintiff had refused he had been excused And therefore the rule is given in the Lord Cromwels Case aforesaid that when a woman or a Grantee upon condition is to make an Estate to the Grantor and no time is limited he hath time for his life unless the party who is to have the Estate do hasten it by request but if an advowson be granted on such condition the Regrant ought to to be before the Church becomes voyd so if the condition be to grant Rent payable at certain days the Grant ought to be before any day of payment for otherwise he shall lose the Presentation and the Rent which will incur before the Grant made And in the 14 Ed. 3. Debt 138. In a Debt upon a Bond the Defendant pleaded the Condition viz. That if he granted twelve marks Rent the Bond should be voyd and demanded Iudgment c. because no time was limited so that he might do it when he would and said that he was always ready to grant the twelve marks Rent and because he demurred not issue was joyned c. If this not making request shall be any damage to the Plaintiff it must be because the Defendant suffers loss by it as in the cases above cited but in this case the Defendant hath the same remedy for the 20 l. although no Estate be made as he should have had if the Estate had been made for by the fourth Article it is agreed that if there be no Estate made of the Land the Plaintiff shall enter at the Anunciation 1612. And I conceive that this payment ought to be made at the time limited for the entry for it is a mutual agreement that doth binde both parties and therefore it lies not in the power of the Plaintiff for his want of entry to defeat the Defendant of his 20 l. agreed to be payd to him but when he enters it shall be intended that he entered when it was agreed he should enter viz. at the Anunciation 1612. And if he payd it not then the Defendant might have had his Action of Covenant whether any Lease were made or not And in Sir Andrew Corbets Case Cook Rep. 4. 81. certain Land is devised to A. B. until 800 l. pound be levyed that is until it may be levyed and so in case of a Lease or limitation of a use for otherwise it should be in their power to hold out the Lessor for ever and so in case of an Elegit upon the Statute of Westm the 2d. cap. 18. and of Retinue for the double value of a Marriage by the Statute of Merton cap. 6. Opinion of the Court. And the whole Court was of Opinion that the request came too late whereupon they were of Opinion to give Iudgment against the Plaintiff but I prayed that the Plaintiff might discontinue his Suit which was granted Rot. 609. Michaelmas 13 Jacob. Smalman Plaintiff against John Agborrow and Edmund Agborrow Defendants IN an Action of Trespass for that the Defendants the 13 Maii 13 Iacob six Heifers of the Plaintiff of the price of 20 l. at Dodenham in a place called Well-Marsh did take chase and drive away to the damage of 10 l. c. The Defendants to all except the chasing did plead Not guilty And as to the chasing they said that the place where c. is and at the time wherein c. was the Freehold of one Francis Agborrow and so did justifie as his servants for damage feasant c. Replication The Plaintiff replyed that before the said Francis Agborrow had any thing c. the Dean and Chapter of the Cathedral of St. Mary the Virgin in Worcester were seised in fee of the Mannor of Aukerden and Dodenham whereof the place where c. is and at the time whereof c. was parcel c. And that the 25 of November 10 Elizab. the said Dean and Chapter by their Indenture did Demise the said Mannor to William Agborrow and Jane his Wife and to the said Francis Agborrow for their lives And that the 20 Febru 39 Elizab. William Agborrow dyed seised and that the 21. of Decemb. 39. Eliz. Jane did marry with Robert Hawkins And that the 25. Febr. 40. Eliz. Robert Hawkins and the said Jane by their Indenture did demise the said Mannor to William Hawkins and William Heaven for sixty years from the date c. if the said Jane and Francis Agborrow or either of them should so long live rendring twenty pounds rent and that the 25. of Mar. 13. Jac. William Hawkins and William Heaven did grant their Estate to the Plaintiff whereby he was possessed and put in his Cattel there to grase which were there untill the Defendant took them away c. And did aver the life of Francis Agborrow The Defendants rejoyn and say that the said Jane did die the 14. Rejoynder of Mar. 12. Jac. and that Francis Agborrow did hold himself in c. Per jus accresendi Vpon which the Plaintiff demurred in Law A man and a woman are Ioynt-tenants for life the woman marries The Case the Husband and Wife by Indenture do let their moyety for years rendring Rent and after the woman dies And the question was whether the surviving joynt-Ioynt-tenant could avoid this Lease And I conceive he cannot And for the Argument of this Case I shall observe these two things thereof That if the woman who made this Lease had been sole at the time of the making this Lease had been good during her life and the life of her Companion the other joynt-Ioynt-tenant That this Lease being made by the Husband and Wife is not void but voidable And as to the first Point Littleton fol. 63. and 64. saies that if two Part. 1 Ioynt-tenants in Fee be and one grants a Rent-charge and dies the Survivor shall hold the Land discharged but if one makes a Lease for years and dies the Lease is good against the Survivor and in Hales Case in the Comment If two Ioynt-tenants be for years and one of them does grant to I.S. that if he payes twenty pounds at Michaelmas he shall have his moyety and the Grantor dies and I. S. does pay the money yet shall not he have the Land because the Condition precedes the Estate but if he make a Lease for yeares to commence at a day to come and dies before the day yet is the Lease good against the Survivor and so in Trin. 37. Eli. Harbury and
Bartons Case Two Ioynt-tenants are for life and one lets his moyety for years to commence after his death and dies and agreed to be a good Lease against the Survivor for as Litton saith every joynt-Ioynt-tenant is seised Per my per tout and hath an Estate in one moyety not only for his own life or his own time but also for the time and life of his Companion and therefore every Estate made by him is good for a moyety so long as the Estate of himself and his Companion continues but a Rent-charge shall not bind his Companion because he claimes by the first Conveyance which is above his Companions Estate And as to the second point it is cleer that when Husband and Wife Part. 2 make a Feoffment in Fee or a Lease for years of the Land of the Wife rendring Rent the Wife after the death of her Husband may accept the Rent and make the Lease good as in 26 H. 8. 2. the case of the Feoffment is agreed and if a Woman after the death of her Husband does accept the Rent she shall be barred in a Cui in vita 11. H. 7. 13. 15. Ed. 4. 17. and Dyer 91. B. Husband and Wife make a Lease for years by Indenture and the Husband dies and she accepts the Rent she shall be bound thereby and shall not avoid the Lease Vpon which two things being as I conceive unquestionable it follows that this Lease at the time of the making thereof is not void but voidable And therefore the sole question will be how this Lease is voidable and if it may be avoided by the surviving Ioynt-tenant or not And I conceive that it is avoidable by the Wife only if she survive her Husband and not by the other Ioynt-tenant and that for two reasons First Because the Survivor comes in above the Lease and therefore cannot take advantage of any imperfection or defect to avoid the Lease 14. Ed. 4. 1. B. If a Feoffment or a Lease for life be made to two and one dies the other may plead the Estate to be made to him only for he is not in by him that is dead but by the Feoffor or Lessor and Dyer 187. a. Two joynt-Ioynt-tenants for life one makes a Lease for yeares rendring Rent and dies the Survivor shall not have the Rent And if Tenant for life makes a Lease for years rendring Rent and surrenders to the Lessor the Lessor shall not have the Rent for he is in by his Reversion which is above the Lease for years and 28. H. 8. 96. a. An Executor had Iudgment to râ—cover a Debt and died intestate whereupon Administration is committed to another he shall not have a Scire facias upon this Iudgment because that he being Administrator immediately to the Testator is above the recovery Secondly There is no privity between the surviving Ioynt-tenant and the Lessor to make him avoid the Lease which is voidable as in 8. Rep. Whittinghams case Privies in blood as Heir generall or speciall shall avoid a voidable estate made by the Ancestor as if an Infant make a Feoffment in Fee his Heir may well enter and avoid the Feoffment but Privies in Law as Lord by escheat Lord of a Villain or Lord who enters for Mortmain shall never take benefit of the Infancy because they are but strangers And therefore if an Infant make a Feoffment in Fee and dies without Heir the Feoffment is unavoidable 49. Ed. 3. 13. 6. H. 4. 3 7. H. 5. 9. 39. H. 6. 42. And as to Privies in Estate as Ioynt-tenants Husband and Wife Donor in Tail and Donee Lessor and Lessee it is there also resolved that they shall not take advantage of Infancy unleâ—â—e it be in some speciall cases And therefore if Tenant in Tail within age makes a Feoffment in Fee and dies without Issue the Donor shall not enter contrary to the opinion of Rick and Frisby 6. H. 4. 3. because that here is only a Privity in Estate between them and no right does accrue to the Donor by the death of the Donee So if two Ioynt-tenants in Fee be and one of them being within age makes a Feoffment in Fee and dies the Survivor shall not enter but if two Ioynt-tenants within age do make a Feoffment one joynt Right remains in them and therefore if one dies the Right will survive and the Survivor may enter in all and the same Law of Covertue or non sanae memoriae as it is said also in Whittinghams case and in Fitzherb N. B. 192. K. If two Ioynt-tenants within age do alien in Fee they must sue severall Writs of Dum fuit infra aetatem because that the cause of their Action is their nonage which is severall for the nonage of the one is not the nonage of the other But if Husband and Wife within age do make a Feoffment of the Wifes land and the Husband dye the Wife shall have a Dum fuit infra aetatem 14. Ed. 3. Dum fuit infra aetatem 6. and 12. H. 7. 18. B. Kelloway In a Formedon by the Lord Brook against the Lord Latimer if an Infant does make a Feoffment none shall avoid this but the Infant himself and his Heirs and no stranger and the same Law of a Feme Covert And as to the case of Harvey and Thomas 33. Eliz. cited in the Lord Cromwells case Where the Husband made a Lease of his Wifes Land for years and then he and his Wife aliened by Fine and the Husband dies the Conusee shall avoid this Lease which I agree to for the Lease being made by the Husband only is utterly void against the Wife and cannot be made good by any Act done by the Wife and the Land passeth all from the woman by the Fine and therefore the Lease cannot bind the Conusee The Survivor in one case cannot make the Lease good by the acceptance of the Rent because that the Rent does not belong unto him and therefore he shall not be received to avoid this Lease as in Nat. B. 138. B. the Heir shall not have a Cessavit for ceasing in the time of his Ancestor for he shall not have the Rent or the arrearages incurred in the life of his Ancestors and the reason is as I conceive because that the Law does give this benefit to the Tenant for the saving of his Tenancy for the tender of arrearages the which cannot be to the Lord because that the Rent is not due to him and therefore the Lord shall lose his action rather then the Tenant shall be deprived of his advantage of saving the land by his tender And by this case also the Aunt and the Neice shall not joyne in a Cessavit for a ceasing made before the Title of the Neice accrued but in Nat. F.B. 139. it is otherwise there of joynt-tenants as I conceive the reason whereof is because as I conceive the Survivor shall have all the Rent and therefore the tender may be made to him
James of a house in the Parish of St. Mary Abchurch in the Ward of Candlewick-street Habendum from Michaelm last past for three years and layd the Ejectment to be the 28 Octob. in the same year The Defendant pleaded Not guilty And the Iury found that William Say was seised in Fee of the said Messuage and of two other Messuages in the Parish of St. Johns in Walbrook London and held them in Socage And that the 8 Octob. 1562. the said William having issue Francis his Son and Margaret Agnes and Alice by his Will in writing did devise the said Messuage in these words I bequeath to Francis my Son all my three Houses after the death of my Wife Barbara and his Mother and if Margaret Agnes and Alice and either of them do out-live their Mother and their Brother Francis and his Heirs then they to enjoy the three Houses for their lives and the three Houses then I give freely to my Sisters Sons Iohn Wittinbury and Roger Wittinbury and they to pay unto the Wardens of the Batchelors Company of the Merchant-Taylors 6 l. 10 s. yearly to be given to the poor and needy Brethren of the same Company for ever and if the said Iohn and Roger and their Successors do deny the said payment of 6 l. 10 s. it shall be lawful that the said Wardens to enter into the three Houses and to discharge them for ever William Say the Devisor dyes Barbara enters Francis Agnes and Alice dye without issue Barbara dyes Margaret enters John Wittinbury dyes without issue Roger Wittinbury dyes without issue and the Lessor is Cosin and Heir to him viz. Son of Margaret Pierson Sister of the said Roger. The 18 of August 13 Jacob. Margaret dyed seised having issue John Savage her Son and Heir who entered which Son the 17 February 13 Jacob. did infeoff Edward Jackson in Fee who the second of September 13 Jacob did infeoff Richard Slydhurst in Fee who the third of September 13 Jacob. did make the Lease to the Defendant for four years who entered upon whom the Lessor did enter and made the Lease to the Plaintiff upon whom the Defendant did enter And prayed the Opinion of the Court c. And I conceive Iudgment ought to be given for the Defendant But first as to the Question that hath been made scil What Estate John and Roger Wittingbury shall take if they shall take any Estate at all by this Will I shall not argue for I agree that if they have any Estate it is a Fee-simple in respect of the continual and perpetual charge imposed upon them for the payment of 6 l. 10 s. to the Wardens c. for that is to have a perpetual continuance in respect of the persons to whom it is to be payd scil the Poor And also the persons to pay are the two Wittingburies and their successors who in the Exposition of the Will shall be taken for their Heirs and Assigns and also in respect of the limitation of the payment scil for ever which in a Will makes a Fee-simple and â—â—â—â—s much as the charge is to continue for ever it follows also that the Estate ought to continue for without the Estate the charge cannot be But I conceive that John and Roger shall take nothing by this will or at least that they shall take but a future Estate to begin after the death of Francis without Heir and then their time will never come for John Savage under whom the Defendant doth derive his Estate is Heire to Francis and therefore the Plaintiff nor his Lessor being Heire to Robert Wittingb the Survivor cannot have this house And to prove this here is an Estate limited by expresse words to Francis and his Heirs and no apparent intent by the Devisor that the word Heirs shall be restrained to the Heirs of his body unlesse by reason of the limitation of the Remainders afterwards which cannot be as hath been said if Francis had a Fee-simple But as to this I say that the same reason may be given when a man deviseth Land to A. and his Heires and if he die without Heire that it shall remain to B. and his Heires in which case if the Devise to A. shall be restrained to an Estate in Taile the Remainder to be is good but no such intent can be collected against expresse words and therefore the Remainder is utterly void as in 19 H. 8. 8. B. where the Rule is given that when the intent of the Testator does not agree with the Law his intent shall be void and this is a certain Rule And West 2. cap. 1. where it is provided Quod voluntas donatoris observetur yet it ought alwaies to agree with the Rules of Law as is proved by the 8. Assise 33. where was a Gift in Taile to two and if one dies that the Survivor shall have all to him and the heirs of his body now doth the Law say that they have severall Inheritances but the will of the Donor was that the Survivor should have all which being repugnant to the Rule of Law was adjudged to be a void Clause 35 H. 8. 6. Estates 75. Estates given to the husband and wife for their lives the Remainder to the heires of their bodies is an Estate-taile executed notwithstanding the expresse will of the Donor because an Estate for life and of Inheritance cannot be distinct in one and the same person without a mean Estate in another So that in Wills if the intent be against Law they are void And so is it if the intent be ambiguous and not manifestly to be collected out of the words of the Will And in our Case no manifest intent does appear to make the Estate of Francis an Estate in Tail Câ—ke 6. Rep. Wildes Case One devised land to A. for life the Remainder to B. in Taile the Remainder to R. and his wife and after their deaths to their Children who then had two Children the Devisor dies and A. dies and B. dies without Issue and and it was adjudged that the Children of R. and his wife should have only an Estate for life because that by Iudgment of Law they have but an Estate for life and if R. and his wife should have an Estate in Taile it ought to be by the intent of the Devisor which intent ought to be manifest and certain and so expressed in the Will and in this case no such intent does appear for perhaps his intent was to accord with the Rule of Law 15 16 Eliz. 9. a. A. having three Houses having three Sons and a Daughter did devise to B. his first Son a House paying ten pounds to his Sister and he to enter after the death of the wife of the Devisor and did devise to his second Son another Houses paying to the Daughter ten pounds and he to enter at the age of one and twenty years and did devise the third House to the third Son paying ten pounds to his
any Lands Tenements or Hereditaments parcel of their Bishopricks or any charge or incumbrance out of the same or of any other thing in their disposition to binde their Successors except onely Leases for 21 years or three lives of such Lands Tenements and Hereditaments which have been usually demised or whereupon the usual Rents have been reserved according to the said Act. And although such Lease be made of such Lands usually demised reserving the usual Rent according to the said Statute yet unless all the limitations prescribed by the Statute of the 32 of Hen. 8. be not pursued as if it be not all in possession or that the old Lease be not expired or surrendred within one year which is not prohibited by the first of Eliz. as it was adjudged in Foxes Case then such Lease will not binde the Successor unless it be confirmed by the Dean and Chapter And such construction as aforesaid hath been made to disable a Bishop to make any Estate except Leases for 21 years or for three lives as is aforesaid as concerning the binding of the Successor as the Grant of the next avoydance by a Bishop to another although it be confirmed by the Dean and Chapter is restrained by the said Statute of Elizabeth to binde the Successor as it hath often been judged and the reason is because it is such an Hereditament whereon no Rent may be reserved for all in the Statute that is not permitted in the Exception is restrained as to the Successor by the general purview of the said Act but yet such Grant will binde the Bishop himself although the Statute says that it shall be voyd against all intents and purposes for the makers of the said Act did intend not onely the advancement of Religion but also increase of good Hospitality and avoyding dilapidations and ruine of the Church which the Successor if the Acts of his Predecessor should binde him were not able to remedy and therefore the makers of that Act did rather regard the Successor And these words in the Act viz. Parcel of the possessions of his Archbishoprick or Bishoprick or united belonging or appertaining to the said Archbishoprick or Bishoprick may be very aptly construed That the Gift of this Office and all other such like things that are belonging to the Archbishoprick or Bishoprick for although the Bishop cannot exercise this Office himself yet hath he an inheritance in the gift and disposing thereof and so it is adjudged in Cooks 8 Rep. Earl of Rutlands Case And these words Belonging to the Archbishoprick or Bishoprick shall be expounded for Concerning the Archbishoprick or Bishoprick And therefore if a Writ of Annuity be brought against a Bishop upon a title of prescription or otherwise and Iudgment be given against him upon Verdict or confession this is restrained by this Act because the Bishop is charged with this Annuity in respect of his Bishoprick and therefore the Successor shall be charged with the arrears incurred in the life of the Predecessor 21 H. 7. 4. 48 Ed. 3.26 33 H. 6. 44. and yet is not the Annuity issuing out of the Bishoprick as appears in the 10 H. 6. 10. and 10 Ed. 4. 10. But because this does concern the Bishoprick and does tend to the diminution of the revenues and the impoverishing of the revenues this is restrained by the said Act of the first of Eliz. And therefore to answer to the Objection Wherefore such an Office should be granted to one solely I answer and it was also agreed to by all the Court That if the Office be ancient and necessary the Grant thereof with the ancient fee is no diminution of the Revenue or dispoverishing the Successor and therefore of necessity such Grants are exempted out of the general restraint of the said Act of Elizabeth For as Bracton saith Illud quod alias licitum non est necessitas facit licitum necessitas inducit privilegium quod jure privatur And if Bishops have not power to grant such Offices of service and necessity for the life of the Grantees but that their estates shall depend on incertainties as on the death or transmutation of the Bishop then no able or sufficient persons will be willing to serve them in such Offices or at least will not discharge their Office with any cheerfulness or alacrity if they may not have such estate in certain for the term of their lives as their Predecessors had but when an ancient Office is granted to one it is not of necessity to grant the same to two and therefore such Grant is not exempted out of the general restraint of the Statute no more then if the Bishop should grant an Office with the ancient fee to one and then he grants the Reversion to another this is restrained by the Statute because it is not of necessity and if the Bishop may grant such Offices to two he may grant them without any limitation of lives and by consequence ad infinitum and so if he may grant a Reversion to one so he may to others also without any limitation and by the same reason he may grant them in Tail or in Fee which is quite contrary to the intention of the said Act. And of such opinion was Popham Chief Iustice Michaelm 44 45 Eliz. in Stumblers Case and Dyer 23 Eliz. 370. where Horn Bishop of Winchester did grant to Dr. Dale during his life a Rent out of the Mannor of Waltham pro concilio impendendo the Bishop dyed and because the Rent was arrear Dr. Dale brought an Action of Debt for the arrears incurred in his life against the Executors In which two points are to be observed 1. That the Grant was not voyd against the Bishop himself The other That although the Rent was issuing out of the possessions and not parcel this was voyd by his death And Trin. 30 Eliz. Rot. 346. in this Court The Bishop of Chester after the Statute of 1 Eliz. did grant to George Boulton an Annuity of five marks per annum pro concilio impenso impendendo which was confirmed by the Dean and Chapter and then the Bishop dyed and Boulton brought a Writ of Annuity against the Successor and in his Count did aver that the Predecessors of the said Bishop had granted reasonable Fees but did not aver that this Fee had been granted before and did aver that he was homo consiliarius in lege peritus and the Opinion of the Court was against the Plaintiff But there it was resolved that although the said Bishoprick was founded but of late times to wit in the time of Hen. the eight yet a Grant of an Office of necessity to one in possession with reasonable fees the reasonableness whereof is to be decided by the Court of Iustice wherein the same doth depend is good and is restrained out of the general words of the said Act. And in our Case the avowant hath averred this Office to be an ancient Office and which hath
at the time of the Declaration the Subjects of the King of Spain I conceive that the Plaintiff ought to alledg that these spoyls were to the damage of the Plaintiff I conceive that he ought to have named one of the Subjects of the King of Spain and not to leave it so uncertain to the Iury as to have them charged to enquire of all his Subjâ—cts for the Plaintiff takes notice of the persons that they were the Subjects of the King of Spain and therefore he may as well know their names Dyer 99. 285. An Indictment of Murder of one unknown or stealing the goods of one unknown is good because he may be discovered And after the Plaintiff discontinued his Suit Holland and others against Jackson and others RIchard Holland and Margaret his wife one of the daughters and heirs of the body of Sir Robert Langley Knight and William Dausey and Ann his wife the other daughter of the said Sir Robert brought a Writ of Error to reverse a common Recovery had at Lancaster die Lunae 13 Elizab. In a Writ of Entry sur Disseisin in the Post between the said Francis Jackson and Henry Oyden Plaintiffs and Robert Leigh and James Haye Tenants of 22 Messuages 10 Cottages 20 Tofts 22 Gardens 20 Orchards 300 acres of Land 200 of Pasture 40 of Wood 500 of Furze 100 of Turbary c. with the appurtenance in Alkerington and Prestnitch wherein the Tenants did vouch Thomas Leigh and Katherin his wife who did appear by George Butler their Attorney who entred into warranty and did vouch William Forster present in Court who did warrant c. ad damnum c. for that before the purchase of the said Writ of Entry and since the 27 H 8. Sir Robert Langley was seised in see of the said Tenements and thereof did infeoff Thurston Tilsley Fitton and Hopwood in fee to the use of himself for life and after to the use of the said Katherin in T. the remainder to the use of the right heirs of the body of the said Sir Robert the remainder to the use of his heirs Sir Robert was seised for life with remainders over c. and then Sir Robert dyed seised after whose death the said Tenements did remain to Katherin in Tayl the remainder to Katherin and the Plaintiffs Margaret and Ann and one Dorothy as daughters and heirs of the body of Sir Robert the Reversion to the said daughters and their heirs whereupon Katherin did enter and was seised in Tayl with Remainders as aforesaid and did marry Thomas Leigh whereupon the said Recovery was had in manner and form as aforesaid after which Recovery Thomas Leigh and Katherin did dye without issue of the body of Katherin and Dorothy dyed also without issue whereby the right of the said Tenements did remain to the said Margaret and Ann as daughters and heirs of the body of the said Sir Robert The Writ of Recovery was certified and the Plaintiffs assigned Error for that Katherin was within age at the time of the appearance of her and her Husband by the said Attorney and was within the age of 21 years at the time of the Iudgment to wit of the age of eighteen years and no more Hereupon a Scire facias was awarded against the Recoverors who being returned dead a Scire facias was awarded against the heirs and Ter-tenants whereupon Ambrose Jackson was returned son and heir of the said Jackson and Thomas Hulm and Margaret his wife and Isabel Ogden daughters and heirs of the said Ogden and William Ogden and others were returned Ter-tenants and the heirs and Ter-tenants did appear and pleaded several Pleas some to the Writ and some in Bar and after the Writ of Error was discontinued Hillar 11 Jacob. The Plaintiffs purchased a new Writ of Error of the said Tenements omitting the Rent and assigned the said Error whereupon a Scire facias was awarded against the Heirs and Ter-tenants which was returned to wit that Margaret Hulm was dead without issue and thereupon a Scire facias was directed to the said Jackson and Ogden the Heirs c. and Katherin Leigh and Robert Leigh and fourty other Ter-tenants who did appear and thereupon Whereupon the said Error was assigned The Ter-tenants did plead that John Chatterton was Tenant of a Cottage c. in A. aforesaid parcel of the said Tenements The Heirs pleaded in null est errat The Plaintiff did acknowledg the Plea of the Ter-tenants and thereupon a Scire facias was awarded against John Chatterton who did appear and the Plaintiff did assign the said Error whereupon Jane Jackson one of the Ter-tenants did plead that Katherin was of full age c. whereupon issue was joyned And George Chatterton and ten others of the Ter-tenants did plead non-tenure And the Heirs of the Recoverors did plead in null est errat And Mary Taylor did plead that before the Recovery a Fine was levyed the 4 Septemb. 13 Elizab. between the said Robert Leigh and James Haye Plaintiffs and Thomas Leigh and Katherin his Wife Deforceators of the said Tenements whereupon the said Thomas and Katherin did acknowledg the said Tenements to be the right of the said Robert c. with warranty against them and the Heirs of Katherin which Fine was proclaimed c. and was to the use of the Conusees and their Heirs until the Recovery should be perfected and then the seventh of March the 13 Eliz. the Writ of Entry was pursued which was to the use of Thomas and Katherin his Wife in Tayl the Remainder to Thomas and his Heirâ— Thomas and Katherin did demise to the said Mary a Cottage and three acres of Land parcel of the said Tenements for life c. wherefore she did demand Iudgment of the Writ against the Fine with proclamations Robert Leigh and 28 others of the ter-Ter-tenants did plead the said Fine with warranty and that Katherin dyed without issue and that Thomas was seised in fee whose estate they have and that Thomas dyed and that after the death of Katherin the said warranty did descend to Margaret and Ann as sisters and heirs of Katherin and did demand Iudgment if they should maintain this Writ against the said Fine and against the warranty The Plaintiffs as to the said several pleas of non-tenure in null errat the fine with proclamations and the warranty did severally demur in Law to which the Defendants did severally joyn And I conceive that the Writ of Error does well lie and that the Recovery is erroneous and therefore ought to be reverst And for the Argument of the Case I shall divide it into three parts If the Writ of Error will lie 1. In respect of the Plaintiffs 2. Notwithstanding the plea of non-tenure pleaded in abatement thereof by Chatterton and ten others of the Ter-tenants Whether there be any Error in the Recovery and if it be such an Error as the Plaintiffs may assign If the Plaintiffs be barred thereof by the pleas
favourably then a Plea yet is it all one for I agree that a Verdict need not be so formall as a Plea but if it wants substance either on the one party or the other this shall prejudice the party as much as if there had been a pleading for the Court cannot give Iudgment without some matter found and therefore for as much as in our Case the life of Sir Richard makes for the Defendant and all the validity of his Lease depends thereon he ought to prove by evidence that Sir Richard was alive so that the Iury might have found it and because it was not so found the Court will not intend that he is alive and therefore he shall be taken to be dead and so his confirmation is finished But admitting it shall be intended that he is alive yet I conceive that immediatly upon the death of Valentine his Estate which he had by the limitation of the use is determined and vanisht and he is remitted to his Estate-taile and then his confirmation as I have already proved which doth charge the Estate which he hath by limitation of the use cannot endure Yet I will agree that if Tenant in Taile makes a Feoffment to the use of himself for life and after to the use of his Issue being within age and dies that his Issue shall not be remitted as it is resolved in the Comment 111. Townsends Case and 207. Standbridge and Morgans Case But the diversity is when the Estate-taile is discontinued wherby the Entry of the Issue is taken away and he is put to his Formedon there he shall not be admitted for the limitation of a use to him for if he will take the Estate according to the use he ought to take it in the same manner as he had the use but when no discontinuance is made of the Estate-taile it is otherwise as in Townsends Case Comment 111. Where Amy the wife of Roger Townsend was Tenant in Taile and the Husband the 29. of H. 8. made a Feoffment to the use of himself and his wife for life the Remainder to the use of their eldest Son for life with divers Remainders over the husband and wife died and resolved that neither the wife nor the Son are remitted and the reason there was because that the Feoffment being made before the Statute of 32. of H. 8. was a Discontinuance to the purging of which the wife was driven to her Cui in vita and cannot avoid this by Entry as she might after the Statute of 32 H. 8. and therefore it is there agreed that if a Disseisor make a Feoffment to the use of the Disseisee and he enters he is remitted because his Entry was congeable And so Dyer 191. 2 3 Eliz. Land is given to the husband and wife and to the Heirs of the body of the husband the husband after the Statute of 32 H. 8. makes a Feoffment to the use of himself and his wife for life the Remainder to the first Son for life the Remainder to the right heirs of the husband the husband dies and it was resolved in the Court of Wards that the wife should be remitted notwithstanding the Statute of Vses because that her Entry was congeable and so 11 H. 7. 12. a. If the son disseiseth the Disseisor of his Father and the Father dies now forasmuch as that a right of Entry was in the Father which by his death doth descend to the Son he shall be remitted notwithstanding that he came to the possession by his own proper and wrongfull Act which is as strong against a Remitter as an Agreement is to a Vse And so if the Son and another doth disseise the Father and the Father dies the Son is remitted and shall put out his companion And then Sir Richard being remitted the Confirmation as I have shewed before being but a charge upon the Advowson is meerly determined and so Littleton 148. B. If Tenant in Taile enfeoffs his Issue within age who at full age doth grant a Rent-charge or a Common and the Father dies the Issue shall hold discharged and 40 Ed. 3. 448. If Tenant enfeoff a stranger who grants a Rent and enfeoffs his Son within age and the Tenant in Taile dies the Issue shall hold the Land discharged and the same Law by Catesby in 12 Ed. 4. 13. b. If Tenant in Taile after Discontinuance does repurchase the Land and dies and the reason is because the Statute that was charged is vanisht And although that the opinion of Bromley 33 H. 8. Dyer 51. b. be that the Issue in such case shall not avoid a Lease for years made by him before his Remitter yet the case of a Rent is there also agreed that it is determined by the Remitter and the same Law is in Ioynt-tenancy if one doth make a Lease for years so that he doth dispose of the possession this shall bind the Survivor but otherwise if he charges the Land with a Rent or other thing and so is it where a husband hath a term in right of his wife as in 7 H. 9. 2. 3. And as to the last part of the Case so If the Fine levied by Valentine the Son and Heir of Sir Richard Knightley doth give any force or strength to the confirmation or not and I conceive that it doth not for three causes First the Fine is not with any Proclamations so that it is no bar to the Intail and therefore it is no more then a bare Grant of a Tenant in Tail Secondly As this Fine is found it cannot be intended to be levied by Valentine Knightley the Son of Sir Richard but by a stranger of that name for it is first found that the 27 Eliz. Sir Richard did grant the Advowson to Valentine Knightley then his Son and Heir apparent and that the 36 Eliz. a Fine was levied between B. T. and H. Y. Plaintiffs and Valentine Knightley Esquire Deforceator wihout saying the aforesaid and therefore I conceive that Valentine Knightley Esquire who levied the Fine cannot be intended to be Valentine Knightley Son and Heir of Sir Richard and yet I agree the Case of 21 H. 7. 30. That when Westminster is put into a Plea and then a matter is alledged apud Westmonasterium without praedict it shall be intended the same place but when another addition is given to the person or place it is otherwise and therefore in the second place if it be sayd apud Westmonasterium super Thamesin it shall not be taken for one place 5 Ed. 6. Dyer New Book of Entries 650. 35 36 Eliz In the Kings Bench Vpon a Trespasse for breaking his Close and breaking and spoyling two Gates and three perches of Hedge the Defendants prescribed to go there in perambulation upon which there was a demur c. and adjudged for the Plaintiff 1. Because that he ought to alledge this by custome and not by prescription 2. Because the Bar was that the Plaintiff had obstructed the
disproof of the second And as to this I conceive that it is a Rule infallible in the exposition of Deeds that when two clauses are contained in a Deed the one contradicting the other the first shall be good and the last voyd 2 Ed. 2. Feoffments and Deeds 94. One gave Land to R. with A. his daughter in Frank-marriage habendum to R. and his Heirs with warranty to him and his Heirs they dyed and their Son brought a Mortdancestor and because the first clause was in Frank-marriage and the other in Fee the Iustices doubted to which of them they should have regard and at last adjudged that when there were several or two clauses in a Deed repugnant or of divers natures that more regard ought to be taken to the first then to the last But otherwise in Wills for there the last part of a Will shall controul the first as if one first doth devise Land to A. and after devise this to another and it is to both in fee yet the last devise shall stand 19 Ed. 3. Tayl 1. In a Writ of Ad Terminum qui praeteriit the Tenant pleaded a Gift in Frank-marriage to his Father and Mother by Deed which was thus that is to say habendum to them for their lives and resolved that the Gift in Frank-marriage being first that it is good and the Habendum being contrary is voyd and there the same rule is given where two clauses are contained in a Deed and the one is contrary to the other And in Tracy and Throgmortons Case Comment 153. It is a ground in Law that if the Habendum in a Deed be contrary to the Estate given by the premisses the Habendum shall be voyd as if a Grant be made to one and to his Heirs Habendum for life the Habendum is voyd 13 H. 7. 23. and 24. and Dyer 272. A Termor does grant his term to another Habendum after the death of the Grantor adjudged that the Habendum is voyd And 2 Ed. 4. If one release all his right in B. acre which he purchased of I. S. and in truth he did not purchase it of I. S. but of another or else had it by descent yet is the release good for the first clause shall stand and the other shall be voyd And Dyer 292. b. One having a Close called Callis lying in Hurst in the County of Wilts does make a Lease of his Close called Callis in the County of Berks and adjudged that it shall pass for the first words shall be and the other shall be voyd And Dyer 32 H. 847. 6. a Lease was made for life without impeachment of waste and if it happen him to make waste that then it shall be lawful for the Lessor to enter Shelley conceived there that the condition was voyd because it was repugnant to the former Grant but some conceived that the Grant shall be intended that he shall not be punished by action Whereupon I collect that if the condition in the last clause cannot agree with the first the last is voyd and so Dyer 56. 6. If I release to A. all actions which I. S. hath against him the Release is good and the words viz. which I. S. hath against him are voyd for by words subsequent a Deed may be qualified and abridged but not destroyed And as to the third manner of exposition viz. to construe all the words of the limitation as well the first as the last to be voyd There is a Rule in Law that when words in a Deed Plea or Record are so repugnant that the true sence thereof cannot be known to the Court what is to be judged or construed upon them that all shall be taken to be voyd as appears by divers Books 33 H. 6. 26. In an action on the Case wherein the Writ was that whereas the Plaintiff had a way by reason of his tenure the Defendant had levyed a Wall whereby his way was stopped and there Prisot said that the Writ was not good for the repugnancy and 9 H. 7. 3. a. One pleaded Null tiel Record hoc paratus est verificare per idem Recordum this was adjudged insufficient because the Plea is repugnant viz. the first part which is not a Record and the last that there is such a Record and Dyer 70. 5 Edw. 6. And so here if these two limitations in the begining of this Lease are so repugnant one to the other that they cannot consist together then both shall be adjudged voyd and then there being no certain time put for the beginning of the Lease the Lease shall begin presently as in 3 Ed. 6. 6. A man made a Lease for years to commence after the end of a Lease made to I. S. and in truth I. S. had no Lease the Lease shall begin presently And as to the fourth manner of exposition I conceive that these ambiguous words shall be construed if it may be that all may be good as to a reasonable exposition and that is that the 56 years shall begin from the 20 Decemb. 1 Eliz. but the Lease does not take effect in possession until the end of the other Lease for terminus annorum hath two significations scil one the time or number of the years and the other the Estate or interest of the term and therefore if one does grant his term the Estate does pass thereby and this diversity is taken and explained the 35 H. 8. 6. and in Cooks 1 Rep. Cheddingtons Case So that I conceive that the first words in the Habendum here ought to be applyed and referred to the time or number of years according to the first definition of the term and the last shall be applyed to the last definition and shall be taken onely as words explanatory put in for better caution by the Bishop to avoyd contention between the Lessees viz. That the last Lessee shall not meddle with the possession until the end of the first term and by this construction and no other may all the words agree together Dyer 9 Eliz. 261. 6. Abbot and Covent did make two Leases of two parcels of Land to two persons 1531. for 31 years and after the successor 1535. reciting both the Leases did make a new Lease to the other in these words Noveritis nos praedict Abb. c. dictis 31 annis finitis complet concessise to the Lessee the said Land holden from the day of the making of these presents termin praedict finitis until the end and term of 31 years from thence next following And the Iustices of the Common Bench held that it shall commence to take effect in possession at the end of the former term and not before and from the day of the making of these presents is but a declaring of the first sentence which is obscure to some intents and if it were not so exprest the Lessee shall have but a Lease for four years which was not the intent of the parties as it should seem but the
Estates yet in Wills the intent of the Devisor is sufficient either to limit the Estate or to describe the person that shall have it And therefore if Land be given to one in perpetuum if it be by Grant or Feoffment yet there passeth but an Estate for life but if it be given by Will it is an Estate in Fee and 4 Ed. 6. Estates 78. If one deviseth his Land to another paying 10 l. to his Executors or any other person the Devisee hath an Estate in Fee so if one deviseth his Land to give or dispose of or sell at his will this is a Fee-simple 19 H. 8. 96. 7 Ed. 6. Devise 38. And the reason in all these cases is because that by these words the intent of the Devisor doth appear that a Fee shall pass and therefore the defect of words shall not defeat his intent And as the intent is sufficient without apt words to make an Estate so is it also to describe the person who shall take the Devise although he be not formally named according to the precise rule in Grants as in 21 R. 2. Devise 17. where one devised Land to one for life the remainder to another for life the remainder to the Church of St. Andrews in Holborn and it was adjudged that after the death of the Devisees for life the Parson of the Church shall have the Land for in as much as the Church was not capable it shall be taken that the intent of the Devisor was that the Parson who is as it were the Father of the Church and so the Head of it should have the Estate And in the 13 H. 7. 17. In every Devise the intent of the Devisor shall be taken for if a man deviseth all his goods to his Wife and that after his decease his Son and Heir shall have his House although that no Devise of the House be made to the Wife by express words but by implication because the Heir is not to have the House during the Wifes life yet because the intent of the Devisor was that the Son should not have it during the life of his Wife she shall have the House for her life To which all agreed Then in our case 1. The Devisor willeth that a Chaplain shall celebrate for his Soul and that he shall have eight Marks out of his Tenements yearly for his stipend but if he had stayed there the Devise should have been voyd for the Chaplain is not such a person as may take these eight Marks as a Rent and therefore he goes further and first he limits what service the Preist shall do and this he appoints to be done by the disposition of the Parson 2. He doth dispose of the residue of the profits of the Tenement for such a time viz. until R. shall be 24 years of age and be a Priest and doth devise that he shall be preferred to the Chantery before any other if he will accept it and if not that he shall have nothing 3. He makes provision for the perpetual continuance of the Chaplain in these words scil That the Parson and four of the best of the Parishioners shall present and finde a Chaplain to perform the said Chantery for ever de tenementis meis superius non legat which is the said Tenement out of which the said eight Marks are limited to be payd 4. He doth inflict a penalty upon the Parson if the Chantery should be voyd scil That the other Land devised by him to the Parson shall go to the Wardens of L. Bridg for the reparation thereof 5. He makes a perpetual disposition for the residue of the profits of the Tenement viz. That they shall be put into a Chest under the custody of the Parson and four of the Parishioners to buy ornaments and Books for the Church And these parts of the Will being well considered as I conceive it will be clear that the intent of the Devisor was that the Parson should have this Tenement for here the main scope of his Will is that a Chaplain shall be maintained perpetually and that he shall have eight Marks stipend out of that Tenement and that it shall be provided and found by the Parson and four of the Parishioners and that the residue of the profits shall be bestowed by them to buy ornaments and Books for the Church so that a perpetual charge is imposed upon the Parson scil to finde the Priest and to buy ornaments c. and this charge is to be defrayed with the profits of the Tenement and that can be done by none but by him that shall be owner of the Tenement and therefore it follows that the Parson shall have the Tenement And that such implication in a Will is sufficient to make an Estate is proved by the 15 H. 7. 126. If one devises his Land to be sold for payment of his Debts the Executor shall sell the Land for because the charge to pay Debts lies upon the Executors his intent shall be taken to have them sell the Land and 22 and 23 Elizab. Dyer 171. A man seised in Fee of divers Mannors doth devise them to his Sister in Fee except my Mannor of D. which I do appoint to pay my Debts and makes two Executors and dyes and one Executor dyes and the other sells thâ— Mannor and adjudged good for so his intent shall be taken and not to relinquish it to his Sister and 19 H. 6. 24 and 25. and 1 Edw. 6. Devise 36. If one devise that his Executor shall sell his Land this is no devise of the Land to them but an authority for they may perform the Devisor to sell the Land although they have no Estate therein and the Vendee shall be in by the Devisor but if one devise that his Executors shall grant a Rent-charge out of his Land or that they shall give the Land in Fee or in Tayl to I. S. this is an implyed Devise to them for otherwise they cannot perform the intent of the Devisor Trin. 9 Eliz. 516. and so in the 40 Assis 26. One did devise his Land in L. to A. and his Heirs to finde twelve Marks for two Chaplains and grants that the Parson and the Parish may distrein for this if it be behinde and there it is debated whether the King shall have the twelve Marks or not and it is agreed there that the Chaplains have no Estate in it because they are removable at the will of A. but because the Distress is given to the Parson who is perpetual it was adjudged that the King shall have the twelve Marks whereupon I do observe that by this Distress limited to the Parson and the Parishioners the twelve Marks were vested as a Rent in the Parson and so made it a Mortmain Object But it may be objected That the last clause in the Will for the disposing of the residue of the profits does go onely to the Land devised to Wardens of the Bridg. Answer But this
inter vicinos suos apud Edmunton praedict which is not sufficient for that it ought to be alledged in fact that he made or caused lites discordia and not that he was like to make them And if an Indictment be insufficient although that the party does plead Not guilty and be acquitted yet he shall not have a Conspiracy or an Action on the Case for by such Indictment he cannot be in any danger and 9 Ed. 4. 12. If one be indicted on an insufficient Indictment and he does not take advantage thereof but pleads not guilty and is acquitted and brings a Writ of Conspiracy the Defendants may show how that the Indictment was insufficient so that the Plaintiff was not duly arraigned and they shall have advantage thereof Vide Cook 4 Rep. Vaux Case And 34 H. 6. 9. If the party indicted be misnamed and be acquitted he shall not have a Conspiracy because the Indictment was voyd as to him And Dyer 286. If the offence in the Indictment be pardoned by a general pardon and yet the party pleads Not guilty and is acquitted he shall not have a Conspiracy because he was in no jeopardy And this Case being moved by Chilborn Serjeant and George Crook for the Plaintiff the fourth of February 15 Jacob. I shewed to the Court that the Plea was good for the reasons and authorities afore cited and also that the Indictment was insufficient for the Reasons afore shewed Judgment And therefore Iudgment was given Quod querens nihil caperet per Billam Michaelmas 15 Jacob. Thomas Muschamp Knight and Margaret his wife and Thomas Lock Esq and Jane his wife against Colan Bluet Michael Sampson Edward Jenny and Elizabeth his wife In the Exchequer IN an Action of Trespass for that the Defendants the first of January 14 Jacob. by force and arms the Close of the Plaintiff at Tottenham did break and enter possessionem tenementorum praedict a praedicto primo Januarii usque diem billae scil 20 Maii 15 Jacob. habuerunt tenuerunt custodierunt ad damnum 40 l. Quo minus c. The Defendants pleaded Not guilty The Iury found that before the Trespass Sir William Lock Knight was seised in Fee of the said Tenements and held them in Socage and that he and Matthew Lock his son were Ioynt-tenants in Fee of other Copyhold Lands in Tottenham and that he had issue Thomas Matthew John Henry and Michael That the 15 Martii 1549. Sir William made his Will in writing and thereby did devise these Tenements to Henry and Michael in these words I give to Thomas Matthew Iohn Henry and Michael my five Sons my dwelling House in Bow-lane and my House at the Lock in Cheap and my House at the Bell in Cheap to the intent that they or some of them may dwell in them and keep the Retaining Shop still in my name to continue there Item I give to Iohn Lock my House that Paris dwelleth in I give to Henry Lock my House that Iohn Edwards dwelleth in I give to Michael Lock the three Houses wherein W. B. and P. dwell I give to Henry Lock the House that Kew dwelleth in I give to Matthew Lock the two Houses wherein S. and T. dwell I give to Henry and Michael Lock all my Houses in the Poultry Bucklersbury and St. Iohns and a House that Goodman dwelleth in I give to Matthew Lock all my Houses at Dowgate and in the Vintry I give to Thomas Lock all my Houses in Cheap lying in St. Peters Parish I give to Thomas Lock my Land at Martin and Wimbleton that I may give him except one Farm called Martin Holts which I give to Henry and Michael Lock I give to all my five Sons the half of the Leg Entry which I purchased of late And as touching my Lands at Tottenham my Son Matthew is joyned Purchaser with me of the most and the rest of all my Houses and Land there which is Freehold I give to Henry and Michael Lock upon this condition that if they shall sell it to any man but to Matthew Lock my Son then he to enter upon it as of my Gift by this my Will Item All the Houses and Lands that I have given joyntly betwixt my Sons is That they shall bear part and part-like going out of all my Houses and Lands upon my Blessing as well Freehold as Copyhold to pay to my Wife Elizabeth for Dowry 40 l. every year during her life out of all my Lands and Houses as well Copyhold as Freehold for which Sum I am bound as appeareth by certain Indentures c. and which of my Sons refuseth to bear his part of the aforesaid Sum of 40 l. I will that he or they shall enjoy no part of my Bequest by me to them given in this my Will but my Gift given to him oâ— them to go to the rest of my well-willing Sons which be content to fulfil this my Will and Bond that I am bound in to be performed Sir William Lock dyed seised and Elizabeth his Wife did survive him Henry and Michael did enter into the said Tenements and payd their parts of the said 40 l. to the said Elizabeth Henry dyes and Michael payd his part of the said 40 l. Thomas Lock was Son and Heir of the said Sir William and had issue Matthew Lock his Son and Heir and dyes Matthew the Son of Thomas deviseth the said Tenements to the Plaintiffs habendum from the death of the said Michael for seven years The 28 of July 15 Jacob. Michael Lock dyed seised of the said Tenements And the said Colan Bluet Michael Sampson and Elizabeth Jenny the Defendants are the next Heirs of the said Michael and that the said Bluet Sampson and Jenny in the right of the said Elizabeth his Wife after the death of the said Michael Lock did enter upon whom the Plaintiffs did enter upon whom the Defendants re-entred and made the Trespass But whether the Entry of the Plaintiffs was legal or not the Iury did doubt and if legal they found for the Plaintiff if not for the Defendants And I conceive that Iudgment ought to be given for the Plaintiffs for I conceive that Henry and Michael Loâ—k had but an Estate for their lives by this Devise which by their deaths is ended so that nothing can descend to the Heirs of Michael being the survivor and by consequence the Lease made to the Plaintiffs by Matthew Lock the Heir of the Devisor is good and the Entry of the Plaintiffs is lawful The Case And the Case upon the whole matter I conceive to be this Sir William Lock being seised of certain Land in Fee and being Ioynt-tenant with Matthew Lock one of his Sons of Copyhold Land within the same Town had issue Henry Michael Thomas and two other Sons and by his Will did devise to his Sons divers Lands severally And after says Touching my Lands at T. my Son Matthew is joyned Purchaser with me already
of the most and the rest of all my Land there which is Freehold I give to Henry and Michael upon condition that if they sell it to any but to Matthew my Son then he to enter as of my Gift and then he declares That of all these Bequests his Sons shall bear part and part-like out of all his Copyhold Lands and Free to pay to Elizabeth his wife for her Dowry 40 l. a year during her life and that Son which shall refuse to bear his part shall not enjoy any part of his Bequest but it shall be to the residue c. Sir William Lock dyes Henry and Michael enter and pay their parts of the 40 l. Henry dyes and then Michael dyes And now the Question is Whether the Defendants being Heirs of Michael shall have the Land or the Plaintiffs who claim under the Devisor And for the better arguing of this Case I will first observe that here is not any express words of limitation of an Estate to make any greater Estate to pass then an Estate for life and then I will shew that here are no words in any part of this Will to signifie any certain intention in the Devisor to make an Estate of Inheritance to pass by this Devise And as to the first the Devise is onely to his two sons viz. The rest of all my Houses and Lands there which is Freehold I give to Henry and Michael Lock and these are all the words of limitation of the Estate and these without question in a Deed or Feoffment will not make a greater Estate then for life And so is Littleton 1. If one purchase Land in perpetuum or to him and his Assigns in perpetuum this is but an Estate for life because it wants these words his Heirs which words make the Inheritance in all Feoffments and Grants and this is an infallible Rule in Grants unless it be in some special Cases as in Frankmarriage or Frankalmoine which being words of art do pass an Inheritance with these words Heirs And in Cases of Grants no intention of the Grantor although it be apparent in the Grant will make an estate of Inheritance to pass as in 19 H. 6. 73. 20 H. 6. 36. A Gift to B. and C. haeredibus with Warranty to them and their Heirs is no Fee-simple because the words of limitation are incertain to whom haeredibus shall be referred and so all one as if it were omitted and then the clause of Warranty although it does declare a certain intent to give an Estate in Fee will not amend the matter in a Grant And so in the 1 Rep. Shelleys Case if one gives Land to one liberis or eitibus suis or semini suo it is but an Estate for life and not an Estate in Tayl yet there is an apparent intent but that will not suffice in a Grant But I agree that in Case of a Devise although the apt words to make an Estate of Inheritance to pass are omitted yet if the intent of the Devisor does appear by any express matter contained in the Will an Estate of Inheritance shall pass for it is sufficient to pass the Inheritance And so Litt. 133. 6. 19 H. 8. 9. 6. If one deviseth Land to another in perpetuum the Devise by these words shall bar an Estate in Fee so if one devise Land to another to give dispose or sell at his pleasure this is an Estate in Fee-simple 19 H. 8. 9. 6. 7 Edw. 6. B. But yet the Law hath restrained such intent For first it ought to be agreeable to Law and not repugnant to it for although in Scholasticas Case in the Comment it is said that a Will is like to an Act of Parliament yet a Will cannot alter the Law or make a new form of an Estate which is not allowed by the Rules of Law as an Act of Parliament is and so adjudged in the Common Bench Hillar 37 Eliz. between Jermin and Ascot Cooks 1 Rep. 85. in Corbets Case That by a Devise a man cannot give an Estate and determine part thereof by a condition and make the residue to continue And if Land be devised to one in Tayl he cannot determine the Estate as to the Devisee himself and yet preserve the Estate to the issue as was endeavoured in this Case And 28 and 29 H. 8. Dyer 33. If Land be devised to one in Fee and if he does not perform such an Act the Land shall remain to another the remainder is voyd for no such remainder can be limited by the Rules of Law This intent ought to be exprest in the Will and collected out of the words of the Will and cannot be averred or supplyed by any forreign matter as in Matthew Mannings Case 8 Rep. 95. 6. Always the intention of the Devisor expressed in his Will is the best Expositor Director and Disposer of his words And Lord Cheyreys Case 5 Rep. 68. Sir Thomas Cheyrey devised certain Land to Henry his Son and the Heirs males of his body the remainder to Thomas Cheyrey of Woodley and the Heirs males of his body upon condition That he or they or any of them shall not alien and the Question was whether there could be an averment that the intent of the Devisor was to restrain H. and his Heirs from aliening and resolved that no such averment could be received for construction of Wills ought to be collected out of the words of the Will The intent of the Devisor ought to be manifest and certain and not dubious as in a Devise of Land to one for ever here the intent is to give an Estate in Fee-simple for no other Estate can continue for ever so if the devise be to one and his Heirs and if he dyes without Heir that it shall remain to another his intent â—y tâ—ars that the word His in the first Devise shall be taken for the Heirs of his body for the Law will sooner presume him to be dead without issue then to be dead without Heir And now to examine our Case with the Rules of Law There are three clauses in this Will as I conceive upon which the pretences of the Defendants are founded to have an Estate in Fee pass by this Devise to which I shall make answer severally The precedent clause to the Devise And as touching my Lands at T. my Son Matthew is joyned Purchaser with me of the most and the rest of all my Houses and Lands there which is Freehold I give to Henry and Michael Lock c. And as to this I conceive that here is no colour to enlarge the Estate to the Devisees but this clause is onely a description of Land which he does not intend to devise and which in truth he cannot devise because that Matthew ought to have it by survivor and is principally named therein because of preventing any question between Matthew and the two Devisees after his death for otherwise they might perhaps have pretended that all
the Land in T. should pass to them especially because they were purchased as it might very well be presumed with the mony of the Devisor and he was reputed owner thereof but these words make no Declaration as to the Estate which he intends to demise to Henry and Michael The Condition or limitation annexed to the Devise in these words Upon condition that if they sell it to any man but to Matthew Lock my Son then he to enter upon it as of my gift by this my Will and I conceive that this clause does not shew any intent of the Devisor to enlarge the Estate first limited to Henry and Michael or to give an Estate in Fee to them for it is not if they alien in Fee or in Tail or if they or their Heirs do alien which words or any words to such intent would have declared a manifest intention that the Devisees should have a Fee-simple but here an alienation in general onely is restrained which ought to be taken for a legal alienation and such a one as they may make by reason of the Estate devised to them And that it shall be so intended first it is to be considered that this condition is a restraint annexed to the Estate and is as a Convinct to the Estate and therefore cannot be properly more large then the Estate it self for it is a Rule that every restraint or exception in an Assurance ought to operate upon the Estate or the thing before granted as in the Comment 370. Zouches Case An exception is an exemption of that contained in the general words and if it be not contained in the generality it can be no exception in the specialty and therefore if one doth lease W. acre excepting B. acre the exception is vain This exception of alienation is more proper to be annexed to an Estate for life then in fee for he who makes a Lease for life or years may restrain the Lessee by condition that he shall not alien but the Feoffor cannot restrain the Feoffe from aliening as in Littleton 84. If a Feoffment be made on condition that the Feoffee shall not alien the Condition is voyd for the Feoffee hath power to alien to whom he will for if that condition were good that would take from him the power which the Law gives him which would be against Reason but if the Condition be that he shall not alien to such a person naming the person or any of his Heirs or his issues this is a good Condition because it take not away the power to alien in Fee And Vernons Case 4 Rep. foâ— 3. An Estate in Fee conveyed by the Husband or his Ancestor to a woman for her Ioynture is not a Ioynture within the Statute of 11 H. 7. which restrains alienations made by women for to restrain such an Estate as cannot be aliened is repugnant and against the Rule of Law and therefore not within the intention of the Act. But it hath been objected on the other side 1. Object That this Condition is not voyd because it doth not restrain all their power but leaves them to the liberty to alien to Matthew 2. If the condition be voyd yet it is sufficient to declare the intent of the Devisor that a Fee should pass And as to the first I conceive that the condition is voyd Answer for to restrain generally and that he shall not alien to any but to J. S. is all one for then the Feoffor may restrain him from aliening to any except to himself or such other person by name whom he may well know cannot nor never will purchase the Land So that this condition shall take away all his power and shall make a perpetuity in the Feoffee which is quite contrary to Law neither is there any authority to warrant this restraint for Littleton leaves the Feoffee at liberty to alien to any except to such a one in particular And as to the second I do agree That if the condition to restrain the alienation had been expresly to restrain the Devisees and their Heirs or to have restrained from aliening in Fee or in Tayl or for anothers life although the condition had been voyd yet had it been sufficient to have shewn the intent of the Devisor and to have caused an Estate in Fee to have passed And therefore I do agree to the case in the 9 Rep. fol. 127. where one devised to his Wife for life and after her decease his Son William to have it and if William shall have issue male that he shall have it and if he have not issue male his Son S. shall have it and if he hath issue male his Son shall have it with like Remainders to his other Sons and my Will is If any of my Sons or their Heirs males issues of their bodies alien then the next Heir to enter c. And it was resolved That the Son should have an Estate in Tayl by this Devise First by reason of these words If he have no issue male which is as much as to say iâ— he dye without issue male Secondly because he and his Heirs males are restrained to alien for every restraint especially in Wills does imply that the party in case he were not restrained had power of the thing restrained And so Bakers Case Hillary 42 Eliz. Rot. 143. A Devise to the Husband and Wife the Remainder to their two Sons upon condition that if they or their Heirs go about to alien c. is a Fee-simple also for the Heirs being restrained to alien does shew fully that the Heir shall have the Lâ—nd for otherwise he cannot alien it But here in our condition there are not any words to shew the intent of the Devisor that an Estate in Fee shall pass but the Devisees are restrained to alien generally which as already I have shewed is more agreeable to an Estate for life then an Estate in Fee-simple at the least he does not shew any certain intent that the Devisees shall have an Estate in Fee but that remains dubious and therefore the safe way is to take the same according to the Rules of Law The third clause to explain the intent of the Devisor in this case is the clause of the Charge imposed upon the Land by the Devisor viz. Item All the Lands I have given joyntly betwixt my Sons is that they shall bear part and part-like going out of all my Lands as well Free as Copyhold to pay to my Wife Elizabeth for Dowry 40 l. every year during her life out of all my Lands c. And I conceive that this clause makes nothing as to the enlargement of the Estate and yet I do agree 29 H. 8. Testament 18. 4 Ed. 6. Estates 78. That if one devise Land to another paying 20 l. or another sum in gross this is a good Devise in Fee but it is otherwise when the Land is devised to one paying an annual Rent or bearing an annual charge with the
profits thereof as in Colliers Case 6 Rep. where one devised Land to his Wife and with the profits that she should bring up his Daughter and that after her death the Estate should remain to his Brother paying to other persons 40 s. and the value of the Land was 3 l. per annum and agreed there that the Brother had a Fee-simple and this diversity was resolved in that case That if the Devise had been to the Brother to the intent that he should maintain his Daughter with the profits or pay out of the profits thereof so much to one and so much to another that this is but an Estate for life for he is sure to have no loss so is it if it be to pay certain sums yearly under the value of the Land for he may pay it out of the profits and is sure to be no loser And this is in effect our very case For first the Charge is imposed for Dower which cannot be intended to exceed the annual value of the Land Secondly it is to be payd out of the Land and therefore there is no charge imposed upon the person of the Devisee but onely upon the Land devised to him so that he takes the Land with this charge and when his Estate determines in the Land yet the charge does always remain upon the Land and the Devisee is discharged thereof and therefore this charge may as well be if he have an Estate for life as if he have a Fee-simple And as to that in Borastons Case 3 Rep. fo 20. b. between W. Allock and Hammond where a Copyholder devised his Land paying to his Daughter and to each of his younger Sons 40 s. within two years after his death and surrendered accordingly and dyed and agreed that the Devisee had an Estate in Fee although the annual profits exceeded the mony that was to be payd and the Reason is plain for it is not limited to be payd out of â—â—e Land or profits but is a payment in gross and it may happen that the Devisee may dye before he can receive so much of the profits And afterwards viz. Trinit 17 Jacob. All the Barons scil Tanfield Bromley and Denham delivered their Opinions severally That Henry and Michael Lock had an Estate onely for their lives because there is no express words in the Devise to make any greater Estate to pass and the condition or clause of the charge imposed by the Wtill does not necessarily imply that they should have a greater Estae then for life for such Estate may satisfie both these clauses as well as an Estate in Fee and the condition is more proper to be annext to an Estate for life then in Fee Judgment Wherefore they resolved That Iudgment should be given for the Plaintiffs but because Sir Thomas Muschamp one of the Plaintiffs dyed hanging the Action no Iudgment could be enter'd Trinit 16 Jacob. Wood against Searl and Jeo IN an Action of Trespass for that the Defendants the 16 of December 15 Jacob. ten Hides of Leather of the Plaintiffs amounting to the value of 10 l. at Tiverton did take and carry away ad damnum 20 l. c. The Defendants as to the force and arms pleaded Not guilty and as to the residue they said that the City of Exeter is and time out of minde was an ancient City and that within the said City there is and for all the said time was a Society of the Art of Cordwainers incorporate by the name of The Master Assistants Wardens and Commonalty of Cordwainers of the City of Exeter and that the said Master Assistants and Wardens have used for all the said time to make By-laws for the government and profit of the said Society and to impose reasonable Fines and punishments upon the breakers thereof And that the 24 of July 44 Elizab. the Master Assistants and Wardens did ordain That no person Burgess or Foreigner not being a Brother of the said Society should make sell or offer to sell or procure to be sold within the aforesaid City of Exon the County or liberty thereof any Boots Shooes Pantofles Pumps or Startops or any other wares belonging to the said Art under pain of forfeiting to the said Master and Wardens for the time being for every offence such sum not exceeding 40 s. as shall be assessed by the Master Wardens and Assistants or the greater part of them and that if any person of the said Society or any other exercising the said Art or any thing concerning the same inhabiting within the said City or the County or liberty of the same who shall break the said Order shall refuse to pay such sum as shall be assessed upon true proof first thereof had of the breach of the said Order that it shall be lawful for the said Master Assistants and Wardens or any three of them taking with them a Constable Bayliff or Serjeant of the Mace or other fit Officer of the Kings to enter into the House Booth Shop Warehouse or Cellar of such person so refusing and there by the discretion of the said Master Assistants and Wardens or the greater part of them to distrain any of their goods then being within the said Houses c. for the said sums forfeited so that it doth not exceed the treble value of the sums forfeited and to detain the same Yet nevertheless if the owner within thirty days shall satisfie the penalty then they shall redeliver the goods And if he doth not satisfie that then the said Master Wardens and Assistants or the greater part of them have power to appraise the goods taken by the oath of six persons and thereupon to sell them and to restore the surplussage to the owner And the Defendants said That at the said time in which c. and time out of minde there was and ought to be a Master two Wardens and twelve Assistants of the said Society within the said City and no more and that the said Edward the sixth of December and before and ever since was Master and the said William and Thomas Payn were Wardens That the 29 of July 15 Jacob. the Plaintiff at the said City then being an Inhabitant within the said City and no Brother of the said Society did make divers Shooes and them there to sale did expose and that the said Master and Wardens and one J. G. T. K. R. J. W. T. K. T. C.G. and J. G. being seven and the major part of the said Assistants the thirtieth of July the 15 Jacob. did impose upon the Plaintiff 33 s. 4. d. for the said offence And they said further that the Plaintiff committed the like offence the seventh of October 15 Jacob. and 33 s. 4 d. imposed by the Master Wardens and Assistants and the like offence the 20 of Novemb. 15 Jacob. and 33 s. 4 d. imposed by the Master Wardens and eight of the Assistants and the like offence the second of December 15 Jacob. and 33 s. 4
But in our Case the act being done by the issue in Tail himself shall not enable him to make voyd the Lease made by his Mother no more then if a Tenant in Tail makes a Lease for years and levies a Fine with proclamations to the Donor and dyes having issue yet the Donor shall not avoyd the Lease Vid. Lord Aberganies Case Cook 6 Rep. And although that the Wife were a Ioyntress within the Statute of 11 H. 7. yet is this Lease clearly out of the Statute because that it is no bar or discontinuance to the Estate in Tail as it is in Sir George Browns Case Cook 3 Rep. for this Lease was voydable by the issue unless he had bar'd himself by his own Fine And I conceive this Lease is also good against the Devisee for when a Tenant in Tail makes a Lease for years or grants a Rent common c. or acknowledgeth a Statute or doth in some other manner charge the Land this is a good Lease Grant or Charge to binde the Tenant in Tail and all other except the issues in Tail and those in Reversion And the reason of this is because the Statute of Westminster 2. cap. 1. that was made to avoyd such charges does not ayd any persons except the issues in Tail and those in Remainder and Reversion And therefore if Tenant in Tail grant a Rent or acknowledg a Statute and dyes the issue shall not be charged with it and so shall his Feoffee but if the Tenant in Tail himself after such charge infeoffs another and dyes the Feoffee shall hold the Land charged and if a Tenant in Tail makes a Lease for years and dyes and the issue doth accept the Rent the Lease is made good and is absolute but if he dyes seised of the Estate-Tail the issue hath his election either to make the Estate good by his acceptance of the Rent or to avoyd the Lease by his entry and if he infeoff a stranger before entry the Feoffee shall never avoyd the Lease and if the issue doth accept the Rent he maketh the Lease good for his time and as the Feoffee of the Tenant in Tail and all those who come to the Land by any assurance made be the Tenant in Tail whereby the Estate in Tail is barred or discontinued shall hold the Estate charged with the Leases and charges made by the Tenant in Tail so shall all those in like manner who come to the Land under the said Tenant in Tail although the Estate-tail doth remain not barred or discontinued saving the issues in Tail who are ayded by the Statute of Westminster the 2. And therefore if Tenant in Tail grants a Rent in fee and takes a Wife and dyes the Wife shall hold charged with the Rent and so if a woman Tenant in Tail grants a Rent and marries and hath issue and dyes the Husband being Tenant by the curtesie shall hold the Land charged for they are not ayded by the said Statute and so if Tenant in Tail grants a Rent in Fee and makes a Lease for three lives warranted by the Statute of the 32 of Hen. the 8. and dyes the Lessee shall hold the Land charged Cooks Rep. 9. Count. Bedfords Case And in the said Case of the Lord Abergeveny it is said that the surviving Ioyntenant by acceptance of the Lease hath deprived himself of the way and means of avoyding the charge for vis accrescendi was the onely means of avoyding it and the right of survivor is gone by the Release And so in our Case the issue in Tail might have avoyded this Lease by his entry but he hath quite barred himself by his Fine And as to the Statute of the 11 H. 7. cap. 20. I conceive that nothing is prohibited by this Statute but onely such Acts as are a bar of the Estate-tail or a discontinuance thereof for so are the words of the Stature viz. If any woman shall discontinue alien release or confirm with Warranty c. And in Sir George Browns Case in Cooks Repor fol. 350. it is there argued Whether a Discontinuance without Warranty be within that Statute but it was resolved that these words with Warranty doe refer onely to Releases and Confirmations which make not discontinuance without Warranty for the intention of the Statute was not onely to prohibit every bar but also every discontinuance but here in this case there is no bar or discontinuance for the woman hath made a Lease for years rendering Rent by which the Estate-tail is neither bound nor discontinued but she remains Tenant in Tail as she was before and so dyed seised of such Estate and therefore if it had not been for the Fine levyed by the issue in Tail himself she might have entered and have avoyded the Lease and this is not like the Case there put by Anderson where Feme Tenant in Tail in Ioynture within the Statute does accept a Fine sur conusans de droit come ceo c. and therefore does grant and render the Estate for 1000 years for though this be no discontinuance of the Estate-tail yet is it a bar of the Estate during the time And Hillar 22 Jacob. I argued this Case again and all the Court viz. Doderidge Jones and Whitlock did agree That the issue in Tail was barred by the Fine to avoyd this Lease and that although the Estate-tail was barred yet is it not extinguished but remains in esse to support the Lease so long as any issue in Tail does remain alive and so they agreed the Lease to be good Wherefore Iudgment was given for the Plaintiff Judicium George Bishop of Chichester Plaintiff John Free-land Defendant 1 Caroli Rot. 607. THe Case was That a Bishop was seised in fee of a Park to which there was the office of a Keeper belonging with a fee of five marks with a Livery granted from time to time by the Bishop And the Bishop does grant the said Office together with the fees necnon cum pastura pro duobus equis in eodem Parco which Grant was confirmed by the Dean and Chapter The Bishop dyes and another is made Bishop And whether this Grant was good to binde the Successor was the Question And I conceive that this is a good Grant against the Successor and will binde him And first I conceive it will not be denyed but that if a Bishop hath a Park he by the Common Law may grant the Office of the Keeper of that Park to whom he will with such fees and wages and for such an estaâ—e as he will and this being confirmed by the Dean and Chapter is good to binde the Successor and therefore it is to be considered Whether any alteration of the Law be made in this point by reason of any Statute In the Bishop of Salisburies Case Cooks 10 Rep. it is there resolved that by the Statute of the first of Elizabeth Bishops are thereby generally restrained from making any estate or interest of