Avowry is in liew of an Action and thereto privity is requisite for the same cause he cannot have an Action of Waste nor many other Actions there mentioned and the Authorities cited and so is Littleton himself expresly Litt. Sect. 580. Section 580. Where a man by grant to himself or by descent from his Ancestor hath a Rent-charge and might once lawfully distrain and Avow for such Rent if Arrear by due Attornment made to him or his Ancestor he may still do so whenever the Rent is behind unless by Law that power be some way lost 1. That power may be lost by extinguishment of the Rent by a perpetual union of the tenancy to the rent or rent to the tenancy or in other manner the Grantee having no Heir 2. It may be lost for a time by Suspension as by such union for a time and after restored again 3. It may be lost by a Grant of the Rent upon Condition 7 H. 6.3 Br. Extinguishment p. 17. and upon performance or breach of the Condition restored again but the power of distraining is not in this Case lost by any of these ways 4. It may be principally lost by a sufficient granting over and transferring the Rent to another which way comes nearest to the Case in question And therefore I shall agree the Case so much insisted on which is said to be agreed per Curiam Andrew Ognell's Case 4. Rep. f. 49. in Andrew Ognell's Case in the fourth Rep. That if a man be seized of a Rent-service or Rent-charge in Fee and grant it over by his Deed to another and his Heirs and the Tenant Attorn such Grantor is without remedy for the Rent arrear before his Grant for distrain he cannot and other remedy he hath not because all privity between him and the Tenant is destroyed by the Attornment to the Grantee and he hath no more right than any Stranger to come upon the Land after such transferring over of the Rent I shall likewise agree another Case That if such Grantee should regrant the same Rent back to the Grantor either in fee in tail or for life and the Tenant Attorn as he must to this regrant yet the first Grantor shall never be enabled to distrain for Arrears due to him before he granted over the Rent for now the privity between him and the Tenant begins but from the Attornment to the regrant the former being absolutely destroyed and the Tenant no more distrainable for the ancient Arrears than he was upon the creation of the Rent for Arrears incurred before till first attorn'd If the Case in question prove to be the same in effect with either of these Cases then the reason of Law for these Cases must sway and determine the Case in question And I conceive that there is no likeness or parity between the Case in question and either of those Cases either for the fact of the Cases or the reason of Law I shall therefore begin with comparing this Case with the first of those Cases 1. In the first of those Cases he that is seis'd of the Rent-charge doth intend to transferr his Estate in the Rent to the Grantee and it is accordingly actually transferr'd by the Tenants Attornment to the Grant 2. The Grantee by his Grant and Attornment to it becomes actually seis'd of the Rent and may enjoy the benefit of it by perception of the Rent 3. His Wife becomes dowable of it 4. It is subject to Statutes Recognizances and Debts enter'd into by the Grantee or due from him to the King 5. It is possible to descend to his Heir 6. It may be Arrear and he hath a possibility to distrain and avow for it 1. But in the Case in question the Conizors of the Fine did never intend to transfer their Estate in the Rent to the Conizee nor that any Attornment be made to him What a man intends to pass to another he intends to be without it himself at least for some time which is not in this Case 2. The Conizee never becomes actually seiz'd of the Rent and not only doth not but never can enjoy the perception of it for there is no moment of time wherein the Conizors themselves are not actually in seisin of it and consequently may distrain if it be in Arrear and the Conizee can never have actually seisin or possibility to have Attornment or distrain his seisin being but a meer fiction and an invented form of Conveyance only 3. The Conizee's Wife is never dowable of it 4. It is not subject to any Statutes Recognizances or Debts of the Conizee 5. It is never possible to descend to his Heir for it instantly vests in the Conizors 6. It can never be Arrear to the Conizee nor hath he ever a possibility to distrain for it To this purpose what is agreed in the Lord Cromwell's Case L. Cromwell's Case 2. Rep. f. 77. 2. Rep. is applicable Then it is to be consider'd what seisin Perkins had who was the Conizee of a Fine in that Case and he had but a Seisin for an instant and only to this purpose to make a Render for his Wife shall not be endowed nor the Land subject to his Statutes or Recognizances f. 77. Therefore that first Case cited out of the Report of Andrew Ognell's Case which I admit to be good Law hath no resemblance with the present Case in any circumstance or consequent but had the Fine been to a third persons use the consequents had been the same as in the Case cited out of Ognell's Case not as to the Conizee but as to that third person to whom the rent was intended To conclude then this first part 1. That whereof the Conizors were alwaies actually and separately seiz'd the same was never by them transferr'd to the seisin of another But of this Rent the Conizors were alwaies in actual seisin for there was no moment of time wherein they were not seis'd therefore this Rent was never transferr'd to the seisin of another nor could any other for any moment of time have a separated seisin thereof for what was mine at all times could be anothers at no time 2. It is an impossibility in Law that two men severally shall have several Rights and Fee-simples in possession in one and the same Land Dyer 28 H. 8. f. 12. a. p. 51. simul semel per Fitz-herbert in the Argument of Bokenhams Case and the same impossibility is so to have of a Rent Nor hath this relation to the learning of Instants in Digbie's Case Coke 1. Rep. and Fitz-williams in the sixth Report That an old Use may be revoked and a new rais'd in the same time and an old possession ended and a new begun this is usual in all transmutation of Estates and things also For in nature a new form introduc'd doth in the same moment destroy the old according to that Generatio unius est corruptio alterius but a separate possession can never be
in two at the same time not out of the one and yet in the other more than the same Body can be in two several places at the same time 3. If a Feoffee to use of me and my Heirs make a Feoffment to another without consideration to the use of me and my Heirs notwithstanding there is a new Feoffment the words of a use to me and my Heirs Dyer 28 H. 8. f. 12. 6. per Baldwin Chief Justice yet the use being the former use viz. to me and my Heirs this latter is no new use given to me for I cannot have that use given which I had before for to give what I had before is no gift as is well press'd by that Book And by the same necessity where I have the possession before a new possession cannot be really given me by the Statute of 27 H. 8. whose operation is properly to give to him which had not the possession but only an use the possession which he wanted before to the use which he had before in such manner as he hath the use But here the Statute cannot give the possession to the Conizors which they never wanted nor the Conizee never had ad aliquem Juris effectum though perhaps fictitiously and in order only to a form of Conveyance which was not the end or intention of the Statute of Vses but an use invented after that might be made of the Statute in order to a general form of Conveyance by which the parties might execute their Intentions wherein the Conizee is but an Instrument or Property to execute their purpose as in Cromwells Case is said L. Cromwells c. 2. Rep. but the Statute brings the new uses rais'd out of a feign'd possession and for no time in the Conizee to the real possession and for all times in the Conizors which operates according to their intent to change their Estate but not their possession Besides it hath been admitted at the Bar that if the Fine had been levied without consideration and no uses express'd the Conizors might then have distrained for the Arrear because the uses were the same as before which if granted it resolves the Question for the Attornment and power to distrain follows the possession and not the use And if after the supposed possession of the Conisee and his being seis'd to the old uses when the Statute gives the possession back to the old uses the Conizors might distrain for the Arrears before the Fine as well as for those after what hinders their distraining for them still For the possession which the Statute gives to the old uses is as new a possession as that it gives to the new uses and the privity is the same in both Cases in regard of the Tenant And it is common experience that a Fine levied without consideration or use expressed Sir Moyle Finch's Case 6th Rep. f. 68. b. is to the use of the Conizor and his Heirs who may have an action of waste after the Fine for waste committed before as well as he could before the Fine The instant possession of the Conizee notwithstanding which differs not from this Case The next enquiry is What affinity this Case hath with the second Case propos'd viz. That if one seiz'd of a Rent in Fee grants it over to a Stranger and his Heirs and the Tenant attorns if such Grantee regrants the Rent back to the Grantor and his Heirs there must be a new Attorment of the Tenant to the Regrant for the privity by the first Attornment was totally destroyed and all Arrears of Rent lost when the Tenant attorn'd to the Grantee which Case I take to be clear Law for by the Regrant a total new Estate is gain'd in the Rent and thereby he who hath the Rent as if he never had any former Estate in it And in the present Case the Estates after the Fine are wholly new and other Estates in the Conizors to which the Tenant never attorn'd than the Conizors had before the Fine in these Respects 1. Before the Fine the Husbands had but Estates in right of their Wives and now they are Jointenants with their Wives 2. The Wives before the Fine had Estates of Inheritance absolute and now they are Iointenants with their Husbands and among themselves where Survivorship obtains 3. The Women were Coparceners before and the Husbands in right of their Wives and they are now all Jointenants 4. Two of the Coparceners had the Inheritance of entire third parts and the two other of one intire third part and now the four Women and three Husbands are equally Iointenants which are Estates much differing from the Estates they had before the Fine I must agree That where persons seiz'd of a Rent-charge by granting it over with Attornment of the Tenant have totally departed from their Estate and after retake either such an Estate as they had before or a differing Estate in the Rent they must have a new Attornment and the former privity is wholly destroyed and consequently no Arrears can be distrain'd for by reason of the first privity which is not But in this Case the Conizors never were for any moment of time out of possession of their first Estate nor destroyed the first privity by any new Attornment which either was or possibly could be but only some have enlarg'd their Estate some diminish't it others alter'd it without destroying the old privity which may stand well with the Rules of Law and consequently they may distrain for Rent arrears and avow lawfully by reason of the first privity still continuing And I must observe in this Cases that the Avowants after the Fine are the same persons avowing as before 2. That after the Fine there is but one common Avowry as before 3. That there is no new person after the Fine between whom and the Tenant there was not a privity before the Fine That a mans Estate in a Rent-charge may be enlarg'd diminish'd or otherwise alter'd and no new Attornment or privity requisite to such alteration of Estate Litt. Sect. 549. A man seiz'd of a Rent-service or Rent-charge in Fee grants the Rent to another for life and the Tenant attorns after the Grantor confirms the Estate of the Grantee in Fee-tail or Fee-simple this Confirmation is good to enlarge his Estate according to the words of the Confirmation Here no new Attornment to this new Estate which now is Fee-tail or Fee-simple in the Rent which was before but an Estate for life is requisite else the Confirmation were not good but by Littleton it is good to enlarge the Estate 2. Sir Edward Cook in his Comment upon this Case saith It is to be observ'd that to the grant of the Estate for life Littleton doth put an Attornment because it is requisite but to the Confirmation to enlarge the Grantees Estate there is none necessary and therefore he puts none No man can doubt in this Case that if Rent had been in Arrear to
the Grantee for life when his Estate was enlarg'd needing no new Attornment or privity he did not thereby lose the Rent-arrear If two Jointenants in Fee let the Land for life Litt. Sect. 574 reserving a Rent to them and their Heirs if one release to the other and his Heirs this Release is good and he to whom it was made shall have the Rent of Tenant for life only and a Writ of Waste without Attornment to such Release for the privity which once was between the Tenant for life and them in the Reversion So is it if one Jointenant confirms the Land to the other and his Heirs Litt. Sect. 523. The Law must necessarily be the same if a man seis'd of a Rent-service or Rent-charge in Fee grant it to two and their Heirs or to two and the Heirs of one of them and the Tenant attorn if after one Jointenant release to the other or he which hath the Inheritance to him which hath but an Estate for life and to his Heirs the person to whom such Release is made shall thereby have a Fee-simple whereas before he had but for life in the Rent and an Estate absolute which before was joynt without any new Attornment for the reason of the former Case because there was once a privity between the Tenant and them which was never destroyed So is it if there be Lessee for life the Remainder for life he Litt. Sect. 573 in the Reversion releaseth to him in the Remainder and to his Heirs all his right he in the Remainder hath thereby a Fee and shall have a Writ of Waste and likewise the Rent of Tenant for life if any were without any Attornment of the Tenant for life for the former privity between them Enlargement of Estate by descent If a man seiz'd of a Rent-charge in Fee grant it for life to A. and the Tenant attorns after the Grantor grants the Reversion of this Rent to the Father of A. and his Heirs to whom A. attorns as in this Case he may by Sir Edward Coke's Comment and after the Father dies Coke's Litt. Sect. 556. and this Reversion descends upon A. whereby he hath a Fee-simple in the Rent no new Attornment is requisite for this enlargement of Estate Diminishing of Estate A man seis'd of a Rent-charge in Fee grants this Rent for Seven years to commence from the time of his death the Remainder in Fee and the Tenant attorns in the life time of the Grantor 2. Rep. Sir Rowland Hayward's Case as he must by the Resolution in Sir Rowland Hayward's Case 2. Rep. here the Grantor hath diminish't his Estate in the Rent from a Fee-simple to an Estate for life yet it cannot be doubted but he may distrain for his Rent-arrear And so is the Law where a man seis'd in Fee of a Rent for good consideration Covenants to stand seiz'd for life with Remainder over Vpon these grounds upon Littleton If a man seis'd of a Rent-charge in Fee grant it over to a Feme sole for a term of years the Tenant attorns and she take Husband and during the term the Grantor confirm the Rent to the Husband and Wife for their lives or in Fee they become Jointenants for life or in Fee of this Rent and need no new Attornment This Case is proved by a Case in Littleton Sect. Hence it is manifest that where a man hath a Rent for which he may once lawfully distrain by Attornment of the Tenant which gives sufficient privity to avow such Grantee or Possessor of the Rent may enlarge or change his Estate in the Rent to a greater or lesser or different Estate and needs no new Attornment or privity therefore to distrain and avow for such Rent whenever Arrear unless he become dispossess'd of the Rent and the privity to distrain and avow thereby be destroyed by a Right gained by some other to have the Rent and a Right in the Tenant to pay it to some other 9 H. 6. f. 43. Br. Avoury p. 123. To this purpose there is a Case If a man be seis'd of Land in Jure uxoris in Fee and leaseth the Land for years reserving Rent his Wife dies without having had any Issue by him whereby he is no Tenant by the Curtesie but his Estate is determined yet he may avow for the Rent before the Heir hath made his actual Entry This Case is not adjudg'd but it is much the better Opinion of the Book Objections The Conizors are in possession since the Fine of another Estate Obj. 1 than they were before the Fine that is according to the uses of the Fine which they could not be without an Alienation of the Rent to the Conizee by the Fine to enable the raising of that new use out of the Estate transferr'd to the Conizee by the Fine That by such Alienation the former privity between the Conizors and the Tenant which they had as Parceners by Attornment to the first grant of the Rent was destroy'd and therefore they cannot now distrain but for Rent-arrear since the Fine by the possession given them by the Statute of 27 H. 8. to which no Attornment is necessary and not for any Arrears due before upon the old privity As specious as this Reason seems it may be answer'd Answ That the Conizors had alwaies an actual and separate seisin and possession of the Rent and were at no time without it therefore the Conizee could have no several and separate possession of it at any time for it is not possible that two severally can possess the same thing simul semel for the same thing can no more be in two separate possessions at the same time civilly then the same thing can be in two separate places at the same time naturally Is not the Reason then of equal force that the Conizors were at no time out of possession and seisin of this Rent and consequently never lost the power to distrain for it As to say the Conizee had sometime a separate possession of the Rent from the Conizors out of which the new uses were raised and therefore the privity to distrain for the old Arrears was for sometime destroy'd Besides if the old privity be destroy'd the greatest absurdity imaginable in Law follows That a man hath a right to a thing for which the Law gives him no remedy which is in truth as great an absurdity as to say the having of right in law and having no right are in effect the same When as on the other side the loss of the Arrears and the Conizors right to them is a Consequent deduc'd from the destruction of the old privity between the Conizors and the Tenant by an imaginary and not a real possession of the Rent by the Conizee Obj. 2 Ognell's Case 4. Rep. Nor will it serve to say as is insinuated in Ognell's Case that the Conizors have dispens'd with their own right in the Arrears and therefore such
the Statute If the Father under Age should make such a Devise it were absolutely void for the same syllables shall never give the Custody of the Heir by the Father under Age which do not give it by the Father which is of Age. But in both Cases a Devise of the Custody is effectual and there is no reason that the Custody devis'd shall operate into a Lease when a Lease devis'd shall not operate into a Custody which it cannot do If a man devise the Custody of his Heir apparent to J. S. and mentions no time either during his Minority or for any other time this is a good devise of the Custody within the Act if the Heir be under Fourteen at the death of the Father because by the Devise the Modus habendi Custodiam is chang'd only as to the person and left the same it was as to the time But if above Fourteen at the Fathers death then the Devise of the Custody is meerly void for the incertainty For the Act did not intend every Heir should be in Custody until One and twenty Non ut tamdiu sed ne diutius therefore he shall be in this Custody but so long as the Father appoints and if he appoint no time there is no Custody If a man have power to make Leases for any term of years not exceeding One hundred and he demises Land but expresseth no time shall this therefore be a Lease for One hundred years There is no Reason it should be a Lease for the greatest term he could grant more than for the least term he could grant or indeed for any other term under One hundred Therefore it is void for incertainty and the Case is the same for the Custody For if the Father might intend as well any time under that no Reason will enforce that he only intended that And to say he intended the Custody for some time therefore since no other can be it must be for that will hold as well in the Lease and in all other Cases of incertainty If a man devises Ten pounds to his Servant but having many none shall have it for the incertainty It may be demanded If the Father appoint the Custody until the Age of One and twenty and the Guardian dye what shall become of this Custody It determines with the death of the Guardian and is a Condition in Law and the same as if a man grant to a man the Stewardship of his Mannor for Ten years or to be his Bailiff It is implyed by way of Condition if he live so long A Copyholder in Fee surrenders to the Lord Dyer 8 Eliz. f. 251. pl. 90. ad intentionem that the Lord should grant it back to him for term of life the Remainder to his Wife till his Son came to One and twenty Remainder to the Son in tayl Remainder to the Wife for life The Husband died The Lord at his Court granted the Land to the Wife till the Sons full age The Remainders ut supra The Wife marries and dies Intestate The Husband held in the Land The Wives Administrator and to whom the Lord had granted the Land during the Minority of the Son enters upon the Husband This Entry was adjudg'd unlawful because it was the Wives term but otherwise it had been if the Wife had been but a Guardian or next Friend of this Land The like Case is in Hobart Balder and Blackburn f. 285. 17 Jac. If it be insisted That this new Guardian hath the Custody not only of the Lands descended or left by the Father but of all Lands and Goods any way acquir'd or purchas'd by the Infant which the Guardian in Soccage had not That alters not the Case for if he were Guardian in Soccage without that particular power given by the Statute he is equally Guardian in Soccage with it and is no more than if the Statute had appointed Guardian in Soccage to have care of all the Estate of the Infant however he came by it Besides that proves directly that this new Guardian doth not derive his interest from the Father but from the Law for the Father could never give him power or interest of or in that which was never his The Court was divided viz. The Chief Justice and Justice Wylde for the Plaintiff Justice Tyrrell and Justice Archer for the Defendant Hill 19 20 Car. II. C. B. Rot. 506. Holden versus Smallbrooke IN Trover and Conversion and not Guilty pleaded Robinson the Iury gave a Special Verdict to this Effect That Doctor Mallory Prebendary of the Prebend of Wolvey founded in the Cathedral of Litchfield seis'd of the said Prebend and one Messuage one Barn and the Glebe appertaining thereto and of the Tithes of Wolvey in right of his Prebend 22 April 13 Car. 2. by Indenture demised to Giles Astly and his Assigns the said Prebend together with all Houses Barns Tenements Glebe Lands and Tithes thereto belonging for three Lives under the ancient Rent of Five pounds ten shillings Astly being one of the Lives died seis'd of the Premisses at whose death one Taverner was Tenant for one year not ended of the Demise of Astly of the Messuage Barn and Glebe Lands and in possession of them whereupon the Plaintiff entred into the Messuage and Glebe and was in the possession of the same and of the Tithes as Occupant And afterwards Frances Astly the Relict of the said Giles Astly enters upon the Messuage and claims the same as Occupant in haec verba Frances Astly Widow of Giles Astly enters upon the House and claims the same with the Glebe and Tithe as Occupant Taverner attorns to Frances Astly and afterwards grants and assigns all his Estate in the Premisses to the Plaintiff afterwards Conquest the Husband of Frances Astly took one Sheaf of Corn in the name of all the Tithes and afterwards demised the Tithes to the Defendant The Tithes are set forth and the Defendant took them whereupon the Plaintiff brought this Action Before I deliver my Opinion concerning the particular Questions before open'd arising upon this Record I shall say somewhat shortly of Natural Occupancy and Civil Occupancy First opening what I mean by those terms then briefly shewing their difference as far only as is material to the Questions now before me I call Natural Occupancy the possession either of such natural things as are immoveable fixt and permanent as Land a Pool River Sea for a Sea is capable of Occupancy and Dominion naturally as well as Land and hath naturally been in Occupancy as is demonstrated in Mr. Selden's Mare Clausum at large which lye unpossess'd and in which no other hath prior right Or of things natural and moveable either animate as a Horse a Cow a Sheep and the like without number or Inanimate as Gold precious Stones Grain Hony Fruit Flesh and the like numberless also wherein no man until the possession thereof by Occupancy had any other right than every man had which is
been breach'd is no Judicial Opinion nor more than a gratis dictum But an Opinion though Erroneous concluding to the Iudgment is a Judicial Opinion because delivered under the Sanction of the Judges Oath upon deliberation which assures it is or was when delivered the Opinion of the Deliverer Yet if a Court give Judgment judicially another Court is not bound to give like Judgment unless it think that Judgment first given was according to Law For any Court may err else Errors in Judgment would not be admitted nor a Reversal of them Therefore if a Judge conceives a Judgment given in another Court to be erroneous he being sworn to judge according to Law that is in his own conscience ought not to give the like Judgment for that were to wrong every man having a like cause because another was wrong'd before much less to follow extra-judicial Opinions unless he believes those Opinions are right The other Case is in Coke 5 Car. Salvin versus Clerk in Ejectment upon a special Verdict Alexander Sidenham Tenant in tayl to him and the Heirs males of his body the Reversion to John his eldest Brother made a Lease for three Lives warranted by the Statute of 32 H. 8. c. 28. with warranty And after 16 Eliz. levies a Fine with warranty and proclamations to Taylor and dies without Issue male leaving Issue Elizabeth his Daughter Mother to the Plaintiffs Lessor In 18 Eliz. the Lease for Lives expir'd In 30 Eliz. John the elder Brother died without Issue the said Elizabeth being his Neece and Heir The Defendant entred claiming by a Lease from Taylor and Points entred upon him as Heir to Elizabeth A question was mov'd upon a suppos'd Case and not in fact within the Case Whether if the Fine had not been with proclamation as it was and no Non-claim had been in the Case as there was this warranty should make a discontinuance in Fee and barr Elizabeth it not descending upon John after Alexanders death but upon Elizabeth who is now also John's Heir or determined by Alexander's death The Judges were of opinion as the Reporter saith That the warranty did barr Elizabeth and consequently her Heir because the Reversion was discontinued by the Estate for Lives and a new Fee thereby gain'd and the Reversion displac'd thereby and the warranty was annex'd to that new Fee But this Case is all false and mis-reported 1. For that it saith the Lease for Lives was a discontinuance of the Reversion thereby a new Fee gain'd to Tenant in tayl which he passed away by the Fine with warranty which could not be for in the Case it appears the Lease was warranted by the Stat. of 32 H. 8 and then it could make no discontinuance nor no new Fee of a Reversion could be gain'd 40 Eliz. Keen Copes C. 602. pl. 13. and then no Estate to which the warranty was annex'd and so was it resolv'd 40 El. Keen Copes Case 2. That Opinion was extra-judicial it being concerning a point not in the Case but suppos'd 3. That Case was resolv'd upon the point of Non-claim and not upon this of the warranty which was not a point in the Case 4. Some of the Judges therefore spoke not to that point as appears in the Case As to the second Question Admitting the warranty of Tenant in tayl doth bind the Donor and his Heirs yet in regard the Defendant Tenant in possession cannot derive the warranty to her self from the Feoffees as Assignee or otherwise Whether she may rebutt the Demandants or not by her possession only is the question and I conceive she may not as this Case is I shall begin with those Authorities that make and are most press'd against me which is the Authority of Sir Edward Coke in Lincoln Colledge Case in the third Report and from thence brought over to his Littleton f. 385. a. His words in Lincoln Colledge Case f. 63. a. are He which hath the possession of the Land shall rebutt the Demandant himself without shewing how he came to the possession of it for it sufficeth him to defend his possession and barr the Demandant and the Demandant cannot recover the Land against his own warranty And there he cites several Cases as making good this his Assertion In the same place he saith it is adjudg'd 38 E. 3. f. 26. That an Assignee shall rebutt by force of a warranty made to one and his Heirs only This Doctrine is transferred to his Littleton in these words If the warranty be made to a man and his heirs without this word Assignes yet the Assignee or any Tenant of the Land may rebutt And albeit no man shall vouch or have a Warrantia Chartae either as party Heir or Assignee but in privity of Estate yet any one that is in of another Estate be it by disseisin abatement intrusion usurpation or otherwise shall rebutt by force of the warranty as a thing annex'd to the Land which sometimes was doubted in our Books when as in the Cases aforesaid he that rebutteth claimeth under and not above the warranty I shall clearly agree no man shall vouch or have a warrantia Chartae who is not in in privity of Estate that is who hath not the same Estate as well as the same Land to which the warranty was annexed And the reason is evident because the Tenant must recover if the Land be not defended to him by the warranter such Estate as was first warranted and no other unless a Fee be granted with warranty only for the life of the Grantee or Grantor in which Case the Grantee upon voucher recovers a Fee though the warranty were but for life I shall likewise agree the Law to be as Sir Edward Coke saith in both places if his meaning be that the Tenant in possession when he is impleaded may rebutt the Demandant without shewing how he came to the possession which he then hath when impleaded be it by dissism abatement intrusion or any other tortious way And for the reason given in Lincoln Colledge Case That it sufficeth that the Tenant defend his possession But if his meaning be that the Tenant in possession need not shew that the warranty ever extended to him or that he hath any right to it then I must deny his Doctrine in Lincoln Colledge Case or in Littleton which is but the former there repeated to be Law For as it is not reasonable a man should recover that Land which he hath once warranted to me from me what title soever I have in it at the time when he impleads me So on the other side it is against reason I should warrant Land to one who never had any right in my warranty And the same reason is if a man will be warranted by Rebutter he should make it appear how the warranty extends to him as if he will be warranted by Voucher for the difference is no other than that in the case of Voucher a stranger impleads him in
than a local Subject ibid. 286 5. He must be otherwise a Subject than any Grant or Letters Patents can make him ibid. 6. The Natives of Jersey Garnsey Ireland and the English Plantations c. are not Aliens 268 in loco 278 279 7. Those which are born in the Kings Forreign Plantations are born his Natural Subjects and shall inherit in England 279 8. A Natural Subject is correlative to a Natural Prince and a man cannot have two natural Soveraigns no more than two Fathers or two Mothers 280 273 in loco 283 9. The several ways by which men born out of England may inherit in England 281 10. An Antenatus in Scotland shall not inherit without an Act of Parliament because he is an Alien 274 in loco 284 287 11. Who are the Antenati Postnati and the difference between them 273 in loco 283 12. An Act of Parliament in Ireland shall never Naturalize an Alien to England to make him inheritable there 274 in loco 284 13. No Tenure by Homage c. in any of the Kings Dominions acquired by Conquest or by Grant or Letters Patents can make a man inheritable in England 279 14. No Laws made in any Dominion acquired by Conquest or new Plantation by the Kings Governor or people there by virtue of the Kings Letters Patents can make an Alien inheritable in England 279 15. One Naturalized in Scotland since the Union cannot inherit in England 268 in loco 278 279 280 285 16. A man born a Subject to one that is King of another Country and who afterwards comes to be King of England is an Alien and shall not inherit in England ibid. 285 286 17. An act of Law making a man as if he had been born a Subject shall not work the same effect as his being born a Subject which is an effect of Law 280 18. An Alien hath issue a Son and afterwards is Denizen'd and he afterwards hath another Son here the youngest Son shall inherit 285 Allegiance 1. All Allegiance and Subjection are acts and obligations of Law the subjection begins with the birth of the Subject at which time the Kings protection of him likewise begins 279 Appendant 1. Whatsoever is appendant to the Land goes to the Occupier thereof naturally 190 2. An Advowson may be appendant to a Mannor 12 Apprentice 1. The Law permits not persons who have served Seven years to have a way of livelyhood to be hindred from the exercise of their Trades in any Town or part of the Kingdom 356 Arch-bishop See Ordinary Dispensation 1. The Arch-bishop may dispense for a Plurality 20 Assets 1. The manner of pleading Assets ultra 104 Assignee and Assignment 1. Offices or acts of personal Trust cannot be assigned for that Trust which any man may have is not personal 180 181 2. An Occupant becomes an Assignee in Law to the first Lessee 204 3. If a man Covenants against himself his Executors Administrators and Assigns yet if his Assigns do a tortious act it is no breach of the Covenant because he may have remedy by Action for the tort 118 to 128 Assise 1. An Assise will not lye for a Rent issuing out of Tythes barely 204 Attaint See Title Statutes 3 11. 1. An Attaint lies only in Civil not Criminal Causes 145 146 2. Jurors are not finable for a false Verdict an Attaint only lies against them 145 Attorney 1. An Attorney cannot bring Debt for Soliciting but Case only 99 2. The Defendant cannot wage his Law for Attorneys Fees ibid. Attornment 1. By the Common Law an Attornment was requisite to entitle the Lord the Reversioner the Grantee of a Remainder or of a Rent by Deed or Fine to distrain for Rent in arrear 39 2. By a Grant and Attornment the Grantee becomes actually seised of the Rent 40 3. Attornment and power to distrain follows the possession and not the use 43 4. An Attornment cannot be for a time 27 5. An Attornment of the Tenant doth not disclaim but affirm his possession For it is the act of the Tenant by reason of his being in possession 193 6. A mans Estate in a Rent-charge may be enlarged diminished or altered and no new attornment or privity requisite to such alteration 44 7. Attornment is requisite to the Grant of an Estate for life but to a Confirmation to enlarge an Estate it is not 44 45 46 8. A Rent-charge is granted to Commence Seven years after the death of the Grantor Remainder in Fee Attornment must be made in the life time of the Grantor 46 9. If a Fine is levied of the Reversion of Land or of a Rent to uses the Cestuy que use may distrain without Attornment 50 51 10. Where a Rent Reversion or Remainder is sold by Bargain and Sale the Bargainee may distrain without Attornment 51 11. Where a man is seised of a Rent-charge and grants it over to which the Tenant attorns and he afterwards retakes that Estate here must be a new Attornment for the former privity is wholly destroyed 44 12. Where an Attornment shall be good to a contingent use 52 Bargain and Sale See Intollment 1. WHere a Rent Reversion or Remainder is sold by Bargain and Sale the Bargainee may distrain for the Rent without Attornment 51 Baron and Feme 1. The man after the marriage hath the deduction of the woman ad Domum Thalamum and all the civil power over her and not she over him 306 2. The Interdicts of carnal knowledg in the Levitical Law were directed to the men not to the women who are interdicted but by a consequent for the woman being interdicted to the man the man must also be interdicted to the woman for a man cannot marry a woman and she not marry him 305 Bishop See Ordinary Archbishop 1. What Bishops were originally 22 2. A Parson is chosen Bishop his Benefices are all void and the King shall present 19 20 3. It is not at all inconsistent for a Bishop to be an Incumbent 22 4. A Bishop may be an Incumbent after Consecration 24 5. How many Benefices a Bishop may retain by a Dispensation 25 6. No Canon Ecclesiastical can be made and executed without the Kings Royal assent 329 7. Bishops in Wales were originally of the foundation of the Prince of Wales 411 Canons Ecclesiastical See Title Ecclesiastical Court 1. WHat Canons are good and binding and what not 327 328 Capias ad Satisfaciendum See Execution Certiorari 1. A Certior lies out of the Chancery to Ireland to certifie an Act of Parliament but it doth not lye to Scotland 287 2. A Certiorari doth not lye to Wales to certifie a Record to the Courts at Westminster to the intent that Execution may issue out here upon it 398 Certificate 1. There are many things whereof the Kings Courts sometimes ought to be certified which cannot be certified by Certiorari 288 Chancery 1. The Chancery may grant a Habeas Corpus and discharge a Prisoner thereupon as well
of them constituent parts of the Prebendary or Rectory as the Services are of a Mannor for a total severance of the Services and Demesne destroy the Mannor but a severance of the Tithe or Glebe will not destroy the Rectory more than the severance of a Mannor parcel of the possessions of a Bishoprick will destroy the Bishoprick for the Glebe and the Tithe are but several possessions belonging to the Rectory But it is true that in the Case before us and like Cases a Grant of the Prebendary or of the Rectory una cum terra Glebali decimis de Woolney The Tithe which alone cannot pass without Deed doth pass by Livery of the Rectory Browlow part 2. f. 201. Rowles and Masons Case and so pass that though the Deed mentions the Tithe to be pass'd yet if Livery be not given which must be to pass the Land the Tithe will not pass by the Deed because the intention of the parties is not to pass them severally but una cum and together Therefore the Tithe in such Case must pass in time by the Livery which did not pass without it though granted by the Deed. Yet it is a Question Whether in such Case the Tithe passeth by the Livery or by the Deed For though the passing it by Deed is suspended by reason of the intention to pass the Land and Tithe together and not severally it follows not but that the Tithe passeth by the Deed where Livery is given though not until Livery given If a man be seis'd of a Tenement of Land and likewise of a Tithe and agrees to sell them both and without Deed gives Livery in the Tenement to the Bargainee in name of it and of the Tithe I conceive the Tithe doth not pass by that Livery But a Prebend or Church man cannot now by the Statute of 13 Eliz. cap. 10. make a Lease of the possessions of his Prebendary without Deed. 13 Eliz. c. 10. A Prebendary or Rectory is in truth neither the Glebe nor Tithe nor both for the one or the other may be recover'd and might at Common Law have been aliened the Rectory remaining But the Rectory is the Church Parochial whereof the Incumbent taketh the Cure and Seisin by his Induction after his Institution which is his Charge and without other Seisin then of the Ring or Key of the Church-door by Induction into the Rectory the Parson is seis'd of all the possessions belonging to his Rectory of what kind soever But though by the name of the Rectory the possessions belonging to it of what nature soever actually vest in the Incumbent upon Induction and may pass from the Prebendary by Livery of the Prebend or Rectory to his Lessee according to the parties intention Yet it follows not That therefore an Occupant who can be Occupant but of some natural and permanent thing as Land is should by being Occupant of that whereof occupancy may be have thereby some other thing heterogene to the nature of Land and not capable of occupancy as a Tithe is being neither appendant or appurtenant or necessary part of that whereof he is Occupant nor will it follow that because by giving Seisin of the Rectory the Tithe and Glebe belonging to it will pass that therefore giving Livery of the Glebe will pass the Tithe For it is observable That if a man be Tenant in tayl of a Mannor to which an Advowson is appendant or of a Tenement to which a Common is belonging and discontinue the Issue in tayl shall never have the Advowson or Common until he hath recontinued the Mannor or Tenement But if a man be seis'd in tayl of a Rectory consisting of Glebe and Tithe and discontinue it after the death of Tenant in tayl the Heir in tayl shall have the Tithe which lay in grant but must recover by Formedon the Rectory and Glebe This was agreed in this Court in a Case between Christopher Baker and Searl in Ejectment Cr. 37 El. f. 407. p. 19. Baker and Searls Case upon a Demise by the Earl of Bedford of the Rectory of D. de decimis inde provenientibus for Lives of three other persons and that Case seems to admit an occupancy of the Tithe the Question being concerning the Tithe only Quest 3 The next Question will be That if Taverner being Occupant of the House and Land shall not have the Tithe whereof Astly was in possession at the time of his death what shall become of this Tithe during the lives of the Cestuy que vies which is the hard question And as to this Question If a Rent be granted to A. for the life of B. and A. dies living B I conceive this Rent to be determined upon the death of A. equally as if granted to him for his own life I say determined because it is not properly extinguish'd nor is it suspended For Extinguishment of a Rent is properly when the Rent is absolutely conveyed to him who hath the Land out of which the Rent issues or the Land is convey'd to him to whom the Rent is granted And Suspension of a Rent is when either the Rent or Land are so convey'd not absolutely and finally but for a certain time after which the Rent will be again reviv'd The Reasons why it is determined are because a thing so granted as none can take by the Grant is a void Grant that is as if no such Grant had been Therefore a Grant to the Bishop of L. and his Successors when there is no Bishop in being at the time or to the Dean and Chapter of Pauls or to the Mayor and Commonalty of such a place when there is no Dean or Mayor living at the time of the Grant is a void Grant that is as if it had not been though such a Grant by way of Remainder may be good By the same Reason it follows That when any thing is so granted that upon some contingent hapning none can take by the Grant nor possibly have the thing granted both the Grant and thing granted must necessarily determine for what difference is there between saying that Rent can no longer be had when it is determined by his death for whose life it was granted and saying none can longer have this Rent when it determines by the death of the Grantee pur auter vie For there is no Assignee Occupant or any other can possibly have it and it is therefore determined In an Action of Trover and Conversion brought by Salter against Boteler Salter versus Boteler 44 El. Cr. 901. the Defendant justifies for that one Robert Bash was seis'd in Fee of Twenty Acres in Stansted and granted a Rent-charge to another Robert Bash his Executors and Assigns during the life of Frances the Grantees Wife of Sixteen pounds per Annum The Grantee dies and Frances his wife takes Letters of Administration and the Defendant as her Servant and by her command took a Distress in the said Twenty Acres for Rent
to the King to license as he thought fit 355 2. The intent of the Act being That every man should not sell Wine that would his Majesty could not better answer the ends of the Act than to restrain the sellers to Freemen of London to the Corporation of Vintners men bred up in that Trade and serving Apprenticeships to it ibid. 13 El. c. 12 Not reading the Articles 1. Immediately upon not reading the Articles the Incumbent is by this Statute deprived ipso facto 132 2. Upon such Deprivation the Patron may present Ante 14. and his Clerk ought to be admitted and instituted but if he do not no Lapse incurrs until after Six months after notice of such Deprivation given to the Patron 132 3. Where the Incumbent subscribes the Articles upon his Admission and Institution that makes him perfect Incumbent pro tempore 133 4. But if he hath a Benefice and afterwards accepts another and doth not subscribe nor read the Articles then he never was Incumbent of the second and consequently never accepted a second Benefice to disable him from holding the first 132 133 134 1. That all Leases by Spiritual persons of Tythe c. 13 Eliz. cap. 10. Concerning Leases to be made by Ecclesiastical persons parcel of their Spiritual Promotions other than for One and twenty years or three Lives reserving the accustomed yearly Rent shall be void 2. This Statute intended that Leases in some sense might be made of Tithes for One and twenty years or three Lives and an ancient Rent Reserved but of a bare Tythe only a Rent could not be reserved for neither Distress nor Assise can be of such a Rent 203 204 3. Therefore a Lease of Tythe and Land out of which a Rent may issue and the accustomed Rent may be reserved must be good within the intent of the Statute 204 7 Jac. cap. 5.21 Jac. cap. 12. For Officers to be sued in the proper County 1. The question upon these Acts was Whether an Officer or any in their assistance that shall do any thing by colour of but not concerning their Office and be therefore impleaded shall have the benefit of these Acts. 2. Or if they are impleaded for any thing done by pretence of their Offices and which is not strictly done by reason of their Office but is a mis-seazante Whether they may have the like benefit 3. Without this Act the Action ought to be laid where the Fact was done and the Act is but to compel the doing of that where an Officer is concerned that otherwise Fieri debuit 114 4. The Statute intends like benefit to all the Defendants where the Fact is not proved to be done where the Action is laid as if the Plaintiff became Non-suit or suffered a Discontinuance viz. that they should have double costs 117 12 Car. 2. cap. 4. For granting Tonnage and Poundage to the King 1. Those Wines which are to pay this Duty according to the Act must be Wines brought into Port as Merchandise by his Majesties Subjects or Strangers 165 2. But Wines which are by their kind to pay Duty if they shall be brought into Ports or Places of this Kingdom neither by his Majesties Subjects nor Aliens they are not chargeable with this Duty ibid. 3. If they are not brought into the Ports and Places as Merchandize viz. for Sale they are not chargeable with the Duty 165 170 4. Wines coming into this Kingdom as Wreck are neither brought into this Kingdom by his Majesties Subjects nor Strangers but by the Wind and Sea 166 5. Wreck'd Goods are not brought into this Kingdom for Merchandise viz. for Sale but are as all other the Native Goods of the Kingdom for sale or other use at the pleasure of the owner ibid. 6. All Goods chargeable with the Duties of this Act must be proprieted by a natural born Merchant or Merchant Alien and accordingly the greater and lesser Duty is to be paid 166 168 7. All Goods subject to this Duty may be forfeited by the disobedience and mis-behaviour of the Merchant-proprietor or those entrusted by him 167 1. The intent of this Statute is to priviledge the Father against common Right 12 Car. 2 cap. 24. To enable the Father to devise the Guardianship of his Son to appoint the Guardian of his Heir and the time of his Wardship under One and twenty 179 2. Such a special Guardian cannot transfer the custody by Deed or Will to any other 179 3. He hath no different Estate from a Guardian in Soccage but for the time the of Wardship 179 4. The Father cannot by this Act give the custody to a Papist 180 5. If the Father doth not appoint for how long time under One and twenty years his Son shall be in Ward it is void for Uncertainty 185 6. The substance of the Statute and sense thereof is That whereas all Tenures are now Soccage and the Law appoints a Gardian till Fourteen yet the Father may nominate the Gardian to his Heir and for any time until his Age of One and twenty and such Gardian shall have like remedy for the Ward as Gardian in Soccage at the Common Law 183 Supersedeas 1. If a priviledged person as an Attorney c. or his Menial Servant is sued in any Jurisdiction forreign to his priviledge he may have a Supersedeas 155 Surplusage 1. Surplusage in a special Verdict 78 Suspension 1. A Suspension of Rent is when either the Rent or Land are so conveyed not absolutely and finally but for a certain time after which the Rent will be again revived 199 2. A Rent may be suspended by Unity for a time and afterwards restored 39 Tayl See Title Warranty 1. SEE an Exposition upon the the Statute de Donis 370 371 372 c. 2. What shall be a good Estate Tayl by Implication in a Devise 262 3. A. having Issue Thomas and Mary deviseth to Thomas and his Heirs for ever and for want of Heirs of Thomas to Mary and her Heirs This is an Estate Tayl in Thomas 269 270 4. A Copyholder in Fee surrenders to the use of F. his Son and J. the Son of F. and of the longest liver of them and for want of Issue of J. lawfully begotten the Remainder to M. here it being by Deed J. had only an Estate for Life but had it been by Will it had been an Estate Tayl by Implication 261 5. The Warranty of the Tenant in Tayl descending upon the Donor or his Heirs is no barr in a Formedon in the Reverter brought by them although it be a Collateral Warranty 364 365 6. The lineal Warranty of Tenant in Tayl shall not bind the Right of the Estate Tayl by the Statute de Donis neither with or without Assets descending 365 Tenures See Title Estates  Testament See Devise 1. A Custody as a Gardianship in Soccage is not in its nature Testamentary it cannot pay Debts nor Legacies nor be distributed as Alms 182 Title 1. When you would
arrear and impounded them And Traverseth the Conversion and taking in other manner Vpon Demurrer to this Plea all the Court held the Plea to be bad and gave Iudgment for the Plaintiff 1. Because the Rent was determined by the death of the Grantee because no Occupant could be of it 2. Because the Feme was no Assignee by her taking of Administration 3. None can make title to a Rent to have it against the terr Tenant unless he be party to the Deed or make sufficient title under it Moore 664. p. 907. Salter vers Boteler The same Case is in Moore reported to be so adjudg'd because the Rent was determined by the death of the Grantee and Popham said That if a Rent be granted pur auter vie the Remainder over to another and the Grantee dies living Cestuy que vie the Remainder shall commence forthwith because the Rent for life determined by the death of the Grantee which last Case is good Law For the particular Estate in the Rent must determine when none could have it and when the particular Estate was determined the Remainder took place And as the Law is of a Rent so must it be of any thing which lies in Grant as a several Tithe doth whereof there can be no Occupant when it is granted pur auter vie and the Grantee dies in the life of Cestuy que vie 20 H. 6. f. 7 8. This is further cleared by a Case in 20 H. 6. A man purchas'd of an Abbot certain Land in Fee-farm rendring to the Abbot and his Successors Twenty pounds yearly Rent If all the Monks dye this Rent determined because there is none that can have it It lies not in Tenure and therefore cannot Escheat and though new Monks may be made it must be by a new Creation wholly In vacancy of a Parson or Vicar the Ordinary ex officio shall cite to pay the Tithes Fitz. N. Br. Consultation Lett. G. This Case agrees exactly with the Grant of a Rent or other thing which lies in Grant pur auter vie the Grantee dying the Rent determines though it were a good Grant and enjoyed at first yet when after none can have it it is determined So was the Rent to the Abbot and his Successors a good Rent and well enjoyed But when after all the Covent died so as none could have the Rent for the Body Politique was destroyed the Rent determined absolutely By this I hold it clear That if a man demise Land to another and his Heirs habendum pur auter vie or grant a Rent to a man and his Heirs pur auter vie though the Heir shall have this Land or Rent after the Grantees death yet he hath it not as a special Occupant as the common expression is for if so such Heir were an Occupant which he is not for a special Occupant must be an Occupant but he takes it as Heir not of a Fee but of a descendible Freehold and not by way of limitation as a Purchase to the Heir but by descent though some Opinions are that the Heir takes it by special limitation as when an Estate for life is made the Remainder to the right Heirs of J. S. the Heir takes it by special limitation if there be an Heir when the particular Estate ends But I see not how when Land or Rent is granted to a man and his Heirs pur auter vie the Heir should take by special limitation after the Grantees death when the whole Estate was so in the first Grantee that he might assign it to whom he pleas'd and so he who was intended to take by special limitation after the Grantees death should take nothing at all But to inherit as Heir a descendible Freehold when the Father or other Ancestor had not dispos'd it agrees with the ancient Law as appears by Bracton which obiter in Argument is denied in Walsinghams Case Si autem fiat donatio sic Bract. l. 2. de acquirendo rerum dominico c. 9. Ad vitam donatoris donatorio haeredibus suis si donatorius praemoriatur haeredes ei succedent tenendum ad vitam donatoris per Assisam mortis Antecessoris recuperabunt qui obiit ut de feodo Here it is evident That Land granted to a man and his Heirs for the life of the Grantor the Grantee dying in the life of the Grantor the Heirs of the Grantee were to succeed him and should recover by a Writ of Mordancester in case of Abatement which infallibly proves the Heir takes by descent who died seis'd as of a Fee but not died seis'd in Fee 1. Hence I conclude That if a man dye seis'd pur auter vie of a Rent a Tithe an Advowson in gross Common in gross or other thing whereof there can be no Occupancy either directly or by consequence as adjuncts of something else by the death of the Grantee in all these Cases the Grant is determined and the Interest stands as before any Grant made 2. If any man dye seis'd of Land pur auter vie as also of many of these things in gross pur auter vie by distinct Grant from the Land The Occupant of the Land shall have none of these things but they are in the same state and the Grants determine as if the Grantee had died seis'd of nothing whereof there could be any occupancy But I must remember you that in this last part of my Discourse where I said That if a Rent a Tithe a Common or Advowson in gross or the like lying in Grant were granted pur auter vie and the Grantee died living Cestuy que vie that these Grants were determin'd my meaning was and is where such Rent Tithe or other things are singly granted and not where they are granted together with Land or any other thing out of which Rent may issue with Reservation of a Rent out of the whole For although a Rent cannot issue out of things which lye in Grant as not distrainable in their nature yet being granted together with Land with reservation of a Rent though the Rent issue properly and only out of the Land and not out of those things lying in Grant as appears by Littleton yet those are part of the Consideration for payment of the Rent Cok. Litt. f. 142. a. 144. a. as well as the Land is In such case when the Rent remains still payable by the Occupant it is unreasonable that the Grant should determine as to the Tithe or as to any other thing lying in Grant which passed with the Land as part of the Consideration for which the Rent was payable and remain to the Lessor as before they were granted for so the Lessor gives a Consideration for paying a Rent which he enjoys and hath notwithstanding the Consideration given back again And this is the present Case being stript and singled from such things as intricate it That Doctor Mallory Prebend of the Prebendary of Woolney consisting of Glebe-land
the said William to be begotten of her the said Anne Infeoffed James Lane and John Lane Gentlemen of the said Premisses Habendum to them their heirs and assigns for ever To the use of the said William Vescy the Feoffer and his assigns for term of his life without impeachment of Waste and after to the use of the said Anne the Tenant if the Marriage succeeded between them for term of her life for her Joynture and after her decease to the use of the heirs males of his body on her body begotten forever and for want of such issue to the use of the heirs females of him the said William Vescy upon her body begotten and for want of such issue to the use of the right heirs of him the said William Vescy And bound him and his heirs to warrant the premisses as aforesaid to the said Feoffees and their Heirs to the uses aforesaid By vertue whereof and of the Statute of Uses the said William was seis'd for term of his life with the Remainder over as aforesaid And after the said marriage was had and solemnized between him and the Tenant Arine That William died so seis'd without any issue of his body and Anne surviv'd him and entred and by vertue of the said Feoffment and the Statute of Uses is seis'd in her Demesne as of Freehold for term of her life And that the said warranty of the said William descended from him to the said Elizabeth and Sarah as Cosins and Coheirs of him the said William the Son that is to say Daughters and Coheirs of John Vescy Brother and Heir of the said William the Son and demands Iudgment if against the said Warranty the Demandants shall be received to demand and avers her self and Anne Hewett named in the Feoffment to be the same person The Replication The Demandants reply and confess the Feoffment to uses of William as is pleaded in Barr to Lane and Lane and their heirs with warranty But further say That the said William Vescy the Son after that is the Four and twentieth of December 14 Car. 2. at Tickhill aforesaid died without any issue of his body which they are ready to aver and demand Iudgment if they shall be barred of their Action against the said Anne by the said Feoffment and warranty The Rejoynder Anne the Tenant rejoyns that the Replication is insufficient and demurs thereupon The matter of the Replication is all set forth in the Defendants Plea in Barr but only the time of William Vescy's death which was not material upon which the Demandants ought to have demur'd and not to have replyed impertinently The Case upon the Pleading William Vescy seis'd of the Land in question in his Demesne as of Fee held of King Charles the First in free Soccage as of his Honour of Tickhill by his last Will and Testament devis'd the same to John Vescy his eldest Son and the heirs males of his body and for default of such to Robert Vescy and the heirs males of his body and for default of such to William Vescy his Son and the heirs males of his body and for default of such to Matthew Vescy and the heirs males of his body and died Then John entred and died seis'd without issue male leaving two daughters Elizabeth and Sarah now Demandants together with their Husbands After his death Robert entred and died seis'd without issue male Then William entred and was seis'd and Matthew in the life of William died without issue male William by his Deed Indented in Consideration of an intended marriage with Anne the now Tenant and for other Considerations infeoffed James Lane and John Lane Habendum to them and their Heirs to the use of William the Feoffor for term of his life and after to the use of Anne Hewet now the Tenant for her life then to the use of the heirs males of his body upon her begotten and for default of such to the use of the heirs females of his body on her begotten and for default of such to the use of his right Heirs And bound him and his Heirs to warrant to the said Feoffees and their Heirs William by vertue of the said Feoffment and of the Statute of Uses was possessed and after he married the now Tenant and died seis'd as of his Freehold without any issue of his body After his death Anne his wife now Tenant by vertue of the said Feoffment and Statute of Uses entred and was posssessed Against whom Elizabeth and Sarah Daughters and Coheirs of John Vescy and Cosins and Coheirs of William the Devisor bring their Formedon in the Reverter Anne the Tenant in possession would rebutt and barr them by the said warranty of William Vescy the Son whose Cosins and Coheirs they are videlicet the Daughters and Coheirs of John eldest Brother of the said William And whether the said Anne Tenant by the said Feoffment and Statute of Uses can rebutt them by the said warranty is the general Question For Resolution of which I must make these previous Questions The first is If before the Statute of 27 H. 8. to Vses Tenant in tayl had made a Feoffment in Fee to uses with warranty to the Feoffees and their Heirs such Feoffees in a Formedon in the Reverter brought against them by the Heirs of the Donor could have rebutted and barr'd them by the warranty of the Tenant in tayl For if the Feoffees to use in such case could not have barr'd the Heirs of the Donor before the Statute by the warranty it is evident the Cestuy que use since the Statute cannot barr them for he can have no more power since the Statute than the Feoffees to use had before the Statute by the warranty I put the Case before the Statute for clearness sake only for though since the Statute there are Feoffees to use as before yet no question can be made upon their rebutter by a warranty because the Estate is out of them by the Statute as soon as it is in them And as to this the Case in effect is no more than Whether the warranty of Tenant in tayl which must be admitted to be a Collateral warranty descending upon the Donor or his Heirs will barr him or them of the Reversion The second Question I make admitting the Heirs of the Donor to be barr'd by the warranty of Tenant in tayl descending upon them is Whether after the Statute of Uses the Cestuy que use can have any benefit of the warranty granted to the Feoffees to use either by way of Voucher or Rebutter Because the Cestuy que use is not in possession in the per by the Feoffees but by the Statute of Uses The third Question is admitting generally that the Cestuy que use shall have benefit of the warranty made to the Feoffees to use Whether yet in this Case Anne the Tenant being a Cestuy que use shall have benefit of the warranty made to the Feoffees Because neither William
Heirs is expresly forbidden by the Statute de Donis 374 Right See Title Action 1. Where there can be presumed to be no remedy there is no right 38 Seisin 1. THe profits of all and every part of the Land are the Esplees of the Land and prove the Seisin of the whole Land 255 2. In an Entry sur Disseisin or other Action where Esplees are to be alledged the profits of a Mine will not serve 254 Spoliation 1. The Writ of Spoliation lyes for one Incumbent against the other where the Patrons right comes in question 24 Statute See Recognizance 1. A Recognizance taken before the Chief Justice of the Common Pleas in the nature of a Statute Staple 102 Statutes in general 1. Where an Act of Parliament is dubious long usage is a just medium to expound it by and the meaning of things spoken and written must be as hath been constantly received by common acceptation 169 2. But where usage is against the obvious meaning of an Act by the vulgar and common acceptation of words then it is rather an oppression then exposition of the Act 170 3. When an Act of Parliament alters the Common Law the meaning shall not be strained beyond the words except in cases of publick utility when the end of the Act appears to be larger than the words themselves 179 4. Secular Judges are most conizant in Acts of Parliament 213 5. When the words of a Statute extend not to an inconvenience rarely happening but doth to those which often happen it is good reason not to strain the words further than they will reach by saying it is casus omissus and that the Law intended quae frequentius accidunt 373 6. But where the words of a Law do extend to an inconvenience seldom happening there it shall extend to it as well as if it happens more frequently 373 7. An Act of Parliament which generally prohibits a thing upon a penalty which is popular or only given to the King may be inconvenient to diverse particular persons in respect of person place time c. For this cause the Law hath given power to the King to dispense with particular persons 347 8. Whatsoever is declared by an Act of Parliament to be against Law we must admit it so for by a Law viz. by Act of Parliament it is so declared 327 9. Where the Kings Grant is void in its creation a saving of that Grant in an Act of Parliament shall not aid it 332 10. How an Act of Parliament may be proved there hath been such an Act where the Roll is lost 162 163 404 405 407 11. An Act of Parliament in Ireland cannot effect a thing which could not be done without an Act of Parliament in England 289 12. Distinct Kingdoms cannot be united but by mutual Acts of Parliament 300 13. A repealed Act of Parliament is of no more effect than if it had never been made 325 Statutes 1. Merton cap. 4. The Statute of Merton which gave the owner of the Soyl power to approve Common did not consider whether the Lord was equally bound to pasture with his Tenants or not but it considered that the Lord should approve his own Ground so as the Commoners had sufficient 256 257 2. The inconveniences before the making of the Statute and the several remedies that were provided by it 257 1. Westm 1. 3 E. 1. The Antiquae Custumae upon Woolls Woolfells and Leather were granted to E. 1. by Parliament and therefore they are not by the Common Law 162 163 1. Westm 1. cap. 38. Attaints in Pleas real were granted by this Statute 146 1. Westm 2. cap. 24. The Quare Ejecit infra terminum is given by this Statute for the recovery of the Term against the Feoffee for an Ejectment lay not against him he coming to the Land by Feoffment 127 Statute of Glocester 1. Restrained warranties from binding as at Common Law 366 377 2. Before this Statute all Warranties which descended to the Heirs of the Warrantors were barrs to them except they were Warranties which commenced by Disseisin 366 3. The reason why the warranty of Tenant in Tayl with assets binds the right of the Estate Tayl is in no respect from the Statute de Donis but by the equity of the Statute of Glocester by which the Warranty of the Tenant per Curtesie barrs not the Heir for his Mothers Land if his Father leaves not assets to descend 365 4. If this Statute had not been made the lineal Warranty of Tenant in Tayl had no more bound the right of the Estate Tayl by the Statute de Donis with assets descending than it doth without assets ibid. Westm 2. De Donis 1. All Issues in Tayl within this Statute are to claim by the Writ purposely formed there for them which is a Formedon in the Descender 369 2. it intended not to restrain the alienation of any Estates but such as were Fee-simples at the Common Law 370 3. This Statute intended not to preserve the Estate for the Issue or the Reversion for the Donor absolutely against all Warranties but against the alienation with or without Warranty of the Donee and Tenant in Tayl only 369 4. Therefore if Tenant for life alien with Warranty which descended upon the Reversioner that was not restrained by the Statute but left at the Common Law 370 5. By this Statute the Warranty of Tenant in Tayl will not barr the Donor or his Heir of the Reversion ibid. 6. The Donee in Tayl is hereby expresly restrained from all power of alienation whereby the Lands entayled may not revert to the Donor for want of issue in Tayl 371 7. See a further Exposition upon this Statute from fol. 371 to 393 1. Wales Statute de Rutland 12 E. 1. after the Conquest of it by Edward the First was annext to England Jure proprietatis and received Laws from England as Ireland did Vide postea 9 17 18. and had a Chancery of their own and was not bound by the Law of England until 27 H. 8. 300 301 399 400 2. Although Wales became of the Dominion of England from that time yet the Courts of England had nothing to do with the Administration of Justice there in other manner than now they have with the Barbadoes Jersey c. all which are of the Dominions of England and may be bound by Laws made respectively for them by an English Parliament 400 See for a further Exposition 401 402 c. Acton Burnell 13 E. 1. 1. Recognizances for Debt were taken before this Statute by the Chancellor two Chief Justices and Justices Itinerants neither are they hindred by this Statute from taking them as they did before 102 28 E. 3. c. 2. concerning Wales 1. Tryals and Writs in England for Lands in Wales were only for Lordships Marchers and not for Lands within the Principality of Wales Vide ante 7. pòstea 17 18. for the Lordships and Marchers were of the Dominion of England and held of