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-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
But it may be objected That there is no place mentioned where the payment or acceptance was Answer I answer that it is not material for it is not issuable but onely evidence to prove the fraud which is the substance of the Plea and that is proved by the said Case of Turner And 42 Ed. 3. 14. Conspiracy shall be brought where it was done and not where the Indictment was And 44 Ed. 3. 31. Attachment upon a Prohibition lies where the summons is although the Plea be held in another County 1 H. 7. 15. B. Payment with Acquittance pleaded in an Action of Debt upon a Bond is not double because that acquittance onely is issuable and the payment is but evidence Then the Recognizance is no cause of the retaining the 100 l. as in Cook R. 5. Harrisons Case Green brought an Action of Debt upon a Bond of 40 l. against H. Administrator of Thomas Sydney the Defendant pleaded that the Intestate was bound in a Statute besides which he had no goods c. The Plaintiff replyed that there was an Indenture of Defeasance for performance of Covenants which hitherto were performed whereupon the Defendant demurred and it was adjudged against him for a Debt upon a Bond shall be payd before a Statute to perform Covenants when none of them then were nor perhaps ever shall be broken but are future and contingent things and therefore such possibilities which peradventure shall never happen shall not bar present and due Debts upon a Bond. And although the Condition of the Recognizance be to pay mony yet is it to be payd to a stranger and therefore it is not any Debt but the Debt is onely by the Recognizance Also it is not to be payd but upon a contingency to wit if the Infant comes to full age but if he dye before it shall never be payd 36 H. 8. Dyer 59. One devised 20 l. to his Daughter to be payd at her marriage or 21 years of age and she dyed before marriage yet it shall be payd 7 Ed. 4. 3. and 18. 36 H. 6. 9. Cook 9 Rep. fol. 108. In an Action of Debt against an Administratrix who pleaded Statutes and further that she had not sufficient c. The Plaintiff replyed that for one of the Statutes a lesser sum was accepted in satisfaction and as to the other that it was for performance of Covenants and that none was broken and the Defendant demurred and adjudged for the Plaintiff and that the general averment of payment and acceptance and that the Statute was for performance of Covenants was good because the Plaintiff was a stranger thereto And this case was argued again by me for the Plaintiff and by Crook for the Defendant Saturday the 24 of May Pasch 15 Jacob. at which day Mountague Doderidge and Haughton did agree that for the first matter Iudgment ought to be given for the Plaintiff but as to the last Mountague held for the Defendant but the other two on the contrary And Doderidge and Haughton agreed that the Plea of the Defendant was naught because he said that a Condition was annexed to the Recognizance and did not say that it was upon condition and Mountague replyed not Vide Com. Browning and Beestons Case 21 Ed. 4. 49. 28 H. 6. 3. Hillar 12 Jacob. Robinson against Greves Rot. 744. IN an Action of Trespass for that the Defendant the 6 of May 12 Jac. the House and several Closes of the Plaintiff did break and enter c. ad damnum c. The Defendant pleaded Not guilty The Iury found that the said Tenements were Copyhold parcel of the Mannor of Ecclesfield grantable time out of minde by the Lord or his Steward by Copy in Fee in Tayl or for life or years according to the Will of the Lord and according to the Custom of the Mannor And that before the Trespass Thomas Shercliff was seised in fee at the will of the Lord according to the custom c. And that the first of January 14 Elizab. by the hands of Nicolas Shercliff and Thomas Jepson two of the Customary Tenants Gilbert Earl of Shrewsbury then and yet being Lord of the said Mannor out of Court and according to the Custom of the said Mannor did surrender to the use of Nicolas Stanniland and his Heirs which Surrender at the next Court 11 Janua 40 Elizab. by the hands of the said N. S. and Tho. J. was delivered into the said Court and there by the homage of the said Court was presented and by William West then Steward was accepted and entered in the Rolls of the said Court and that a Copy of the Surrender under the hand of the said Steward was delivered to the said Nicolas Stanniland which Copy was found verbatim viz. Ad hanc curiam compertum est per homagium quod Tho. S. sursum reddidit ad usum N. St. haeredibus suis but they said that the said N. St. was no otherwise admitted By force of which the said Nicolas entered and the 6 Decemb. 1 Jac. out of Court by the hands of Thomas Jepson and Richard Shercliff did surrender according to the custom of the Mannor to the use of the said N. St. for life the remainder to William Stanniland and his Heirs which Surrender at the Court of the Mannor held the 17 May 14 Jac. was delivered into Court by the hands of the said Thomas Jepson and Robert Shercliff and was presented by the homage at the said Court and was there accepted and entered in the Roll by the Sheriff and that a Copy of the said Surrender under the hand of the Steward was delivered to the said N. St. which Copy was found verbatim in the said words with the former and found that there was no other admittance The sixth of November 2 Jacob. Nicolas St. dyed Thomas Shercliff entered at the Court 6 Maii 12 Jacob. did surrender to the use of the Plaintiff for ten years and payd his Fine and was admitted c. whereby the Plaintiff did enter upon whom the Defendant by the commandment of William Stanniland did enter and made the Trespass c. And so prayed the Opinion of the Court. And I conceive that the Plaintiff ought to have Iudgment And in this case are two matters considerable First if this Presentment of the Lord and the entry into the Roll and the delivery of a Copy entred by the Steward be any admittance or not And I conceive that it is no admittance For an admittance is a ceremony requisite to make a Copyhold Estate and is so necessary that before admittance he to whose use the Surrender is made hath no Estate as in Bracton 2. cap. 8. Si ipse ad alium transferre voluerit prius illud restituet domino vel servienti si dominus praesens non fuerit de manibus illorum fiat translatio ad alium c. And before admittance this is no perfect assurance but onely begins then as in Peryams Case Cook 5
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
an Action of Debt for forty pounds upon the Statute of 2 Edw. 6. For that the Plaintiff is and was for two years past Rector of Bifeild and the Defendant the first of October 12 Jacob. was Occupier of eighteen acres of Land and thirty of Pasture in Bifeild aforesaid and did continue the occupation thereof for a yeare after and the first of Septemb. the 13 Jacob. did mow and reap the Hay growing upon the Meadow and the Grain viz. Barley Wheat Pease Beans and Oates growing upon the Land and the same day did take and carry them away without setting out the Tithes or agreeing with the Plaintiff for them and did aver the value of the Tithes to be thirteen pounds six shillings eight pence The Defendant pleaded Non debet The Iury found that King Henry the eighth was seised in Fee of the Advowson of Bifeild and the five and twentieth of April 34 H. 8. the King granted the same to Sir Edward Knightly and Ursula his wife and to the Heirs Males of the body of Sir Edmund the remainder to Valentine Knightley his brother and the heires males of his body the Remainder to the right heires of Sir Richard Knightley then dead Father of the said Sir Edmund Sir Edmund died seised without Issue Ursula did surrender to Valentine and the fifth of September 4 5 Phil. Mar. Valentine did give and grant the Advowson to Sir John Spencer and others and their heires to the use of himself for the life of Ursula and after the decease of which of them should first die to the use of Richard Knightley his Son and Mary his wife and the heires males of the body of Richard the Remainder to the right heires of Sir Richard Father of Valentine That the twentieth of Febr. 6 Eliz. William Briggs Rector of Bifeild by Indenture did let the Rectory to the said Richard Knightley habendum from the next Annunciation for sixty one yeares rendring 28. pounds Rent And that the twenty fourth of Febr. 6 Eliz. Valentine Knightley did confirm the Lease and the last day of February in the same year the Bishop of Peterborow being ordinary did confirm it That the thirtieth of July in the same year Richard Knightley did grant the Lease to Edward Knightley his second Son and afterwards recovered the profits to the use of Edward being within age That the eighth of May 8 Eliz. Valentine died seised of the Advowson having Issue the said Richard his eldest Son William Briggs did recover the Rent during his life and dies whereby Richard Knightley does present William Reynolds who was admitted instituted and inducted Reynolds did resigne whereupon Richard Knightley did present Richard Burdsale who was admitted c. and Burdsale did resigne wherefore Richard Knightley did present Simon Rogers who was admitted c. And they found that all these persons did accept the Rent And that the first of Septemb. 21 Eliz. Richard Knightley did take the profits to the use of Edward and did devise the Rectory to Rogers the Parson for forty years if he should be so long Parson there That the thirteenth of Novemb. 27 Eliz. Sir Richard Knightley did grant the Advowson to Valentine his Son in Fee That the 34 of Eliz. A Fine was levied between Bartholomew Tate and Henry Yelverton Esquires Plaintiffs and Valentine Knightley Esquire Deforceator of the said Advowson Sur conusans de droit come ceo with Warranty to the use of the Conusees and their heirs Rogers did resigne whereupon the said Valentine did present Jonas Challoner who afterwards died and the Ordinary did present the Plaintiff by Laps who did accept the Rent for divers years And they found the carrying away of the Tithes and to the value of ten pounds And prayed the opinion of the Court upon the whole matter whether the Defendant owed the thirty pound to the Plaintiff or not Vpon which Verdict the case is this Valentine Knightley seised of an Advowson in Taile to him and the Heirs males of his body the Remainder to the right Heirs of Sir Richard Knightley his Father then dead the 4 5 of Philip and Mary did give and grant the Advowson in Fee to the use of himself for the life of Ursula Knightley the Remainder to Richard his Son and Mary his wife and the heirs males of the body of Richard the Remainder to the right heirs of the said Sir Richard the Father The twentieth of February 6 Eliz. William Briggs the Incumbent does make a Lease of the Rectory by Indenture to Richard the Son for sixty one years from the Annunciation next c. rendring twenty eight pounds Rent And the twenty fourth of Febr. 6 Eliz. Valentine Knightley does confirm the Lease and the last of February in the same year the Ordinary confirms it The thirtieth of July in the same year Richard the Lessee grants the Term to Edward Knightley his second Son within age and takes the profits to his use And the 8. of Eliz. Valentine dies Richard being his eldest Son William Briggs dies whereby Sir Richard does present William Reynolds who was admitted c. And he did resigne whereby Sir Richard did present Burdsale c. who did resigne c. whereby he presented Rogers and all these persons did receive the Rent And the 21 Eliz. Sir Richard did make a Lease of the Rectory to Rogers the Parson for forty yeares if he shall be there Parson so long 27 Eliz. Sir Richard grants the Advowson to Valentine his Son in fee and 34 Eliz. A Fine was levied of the Advowson between Bartholomew Tate and Henry Yelverton Plaintiffs and Valentine Knightley Deforceator to the use of the Conusees and their heirs Rogers did resigne whereby the said Valentine did present John Challoner c. who died and the Ordinary collated the Plaintiff by Laps who for many years accepted the Rent and the Defendant did take and carry the Tithes to the value of ten pounds And whether this Lease be good to bind the Plaintiff or not is the question and I conceive it is not And for the arguing of this Case I will consider these three things The Validity of the Lease without any confirmation If here be any confirmation of this Lease and if it continues in force against the now Plaintiff Admitting here be not any sufficient confirmation of it self if the Fine levied by Valentine Knightley hath given any force and strength to it And as to the first I conceive without any doubt that this Lease without any confirmation is determined by the death of the person who made it and is so determined as no acceptance of Rent by the Successor can make it good and therefore the difference is between a Lease for life and a Lease for years made by a person rendring Rent for the Lease for life is only voidable and not void by the death of the Lessor so that if the Successor does accept the Rent and Fealty he shall be bound for his
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
a Lease for four years the Lessee entred and the Lessor did grant the Land habendum from Midsomer next for life the Lesses after Midsomer did attorn and adjudged that the Grant was void and in Barkwicks Case 5 Rep. the reason thereof is given because that if the Grant should be good the Grantor should have a particular Estate scil during the first day of the date or in the mean time untill the Grant did begin to take effect without any Donor or Lessor which is against the Rules of Law And although this Grant of the Reversion be but for years yet is it all one for the diversity is between a Lease for years made Tenant in Fee or for life to commence in future and a grant of a Reversion for in the first Case it is but a future Charge upon the Land so that the Lessor hath his former Estate untill the Lease doth begin and the Lessee hath no Term but only interesse termin and therefore Hil. 38. Eliz in the Common Pleas between Row and White it was agreed that if the Lessor be disseised before the Lease begins the Lessee after the day of the Commencement may grant the term otherwise where a Lessee for yeares in possession is outed by an estranger for there his Term is turned into a Right but in the first Case he hath not any Term in esse and therefore it cannot be turned into a Right nor any wrong done thereunto And for direct Authorities in this Case 29 Eliz. in the Common Pleas the Countesse of Kents Case Where one having a Reversion in Fee does grant this Habendum after the death of I. S. for years and it was adjudged a void Grant And Trin. 39 Eliz. Johnson and Somerset in the Common Pleas Lessee for life grants the Reversion Habendum a die dat for ten years and adjudged a void Grant And in the Comment 155. by Brown If one having a Reversion does grant it habendum after a day to come for years this is a void Grant for if it may be granted from a day to come the Grantor shall have a particular Estate in the mean time by his own making which cannot be that one may be Lessor to himself or diminish his own Estate and there it is taken for a Rule that when there is a Rent in Esse or a Reversion c. a man cannot make this to be in esse for a time and to cease for another time or to grant it to another after the death of any or from a day to come relinquishing to himself an Estate in the mean time And in the Comment 197. b. Adams against Wortesbey agreed there that a Reversion cannot passe as a Reversion according to the common understanding thereof from a day to come But Haughton conceived that this Case being a bargain and sale whereby the use doth passe first this may well passe from a day to come Quod nullus dedixit Thirdly It is not averred that the twenty acres in which the Distresse was taken was not part of the Closes excepted so that it may be part of them and then no Distresse for the Rent can be taken there And although it may be gathered by some words in the Bar to the Avowry that the place where c. was parcell of the Land devised to Wiseman yet this shall not help the Conusans as in Cokes 7. Rep. fol. 24 25. where one having Land in Fee and another Land for years did grant a Rent for life out of both the Grantee distrained for the Rent and avowed that the Rent was granted out of the Lease land amongst other lands whereas he ought to have alledged the Rent to be granted out of the Land in Fee only and although the Plaintiff in his Bar to the Avowry hath shewed the truth of the Case yet this will not make the Avowry which wants substance to be good Judgment And all the Court did agree the Avowry to be naught for this exception Wherefore Iudgment was given for the Plaintiff in the Replevin Mich. 14 Jac. Webb and Jucks Case against Worfeild Rot. 266. IN a Writ of Error to reverse a Iudgment given in the Common Pleas for the now Defendant against the now Plaintiffs In which the Plaintiff did declare that the Defendants the fourteenth of Febr. 9 Jac. at Ponick in a place called Brancefords Court did take an Oxe from the Plaintiff ad damnum forty pounds The Defendants did acknowledge the taking of the said Oxe as Bayliffs to Elizabeth Ligon Widow for that the place where c. contained two acres of Land and that one Anne Ligon was seised in Fee of the Scite of the Mannor of Bransford and of seven Messuages three Gardens and a hundred and fifty acres of Land forty two of Meadow sixty six of Pasture five of Wood and seventy of Furzes and Heath in Ponick aforesaid Bransford Leigh Newland and Wick whereof the place where c. is parcell That the sixth of September the twenty fourth of H 8. Anne Ligon did devise this to John Parsons and Anne his Daughter for seventy years after the death of Elizabeth his wife if they or either of them shall so long live rendring five pounds four shillings eight pence Rent at the Annunciation Christmas Midsummer and Michaelmas That the eleventh of August 1554. Elizabeth Parsons died whereupon John and Anne Parsons entred And Ligon dies whereby the Reversion descended to Sir Rich. Ligon her Son and Heir and Sir Richard died wherby the same descended to William Ligon his Son and Heir who died also whereby the same descended to Richard Ligon his Son and Heir who died also and the same descended to Sir Richard Ligon his Son and heire who Hil. 33 Eliz. did levy a Fine Sur Conusans de droit come ceo c. to the use of himself for life the Remainder to the said Elizabeth Ligon then his Wife for life the Remainder to the Heirs of the body of Sir William the Remainder to the right Heires of Sir William 10 May 4. Jac. John Parsons died Pasch 6 Jac. Sir William Ligon and Elizabeth his wife did levy a Fine to the Plaintiff to the use of the Plaintiff for the life of Sir William the Remainder to the said Elizabeth for her life the Remainder to the Plaintiff in Fee Sir William dies whereby the Reversion does remain to Elizabeth his Wife And for seventy eight pounds six pence of the said Rent for three quarters of a year ending at Christmas 9 Jacob. they did acknowledge c. and they averred the lives of the said Elizabeth Ligon and the said Anne Parsons Bar. The Plaintiff said that the Fine levied by Sir William and Elizabeth his wife was to the use of the Plaintiff and his Heirs and justified the putting in of the said Oxe by the license of the said Anne Parsons Absque hoc that the said Fine was to the use of the Plaintiff for the life of
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
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
Defendants Father was seised in Fee of divers Lands and made a Feoffment to the use of himself for life the remainder to the Defendant his Son in Tail with divers remainders over with power of revocation by writing under his hand and Seal and publisht in the presence of three Witnesses And then for the consideration of four hundred pounds did enter into this Recognizance to the Plaintiff and dies And whether this Land were extendable or not against the Son was the question And I conceive that by the Statute of the 27. Eliz. this Recognizance may be extended against the Son the words of which Statute are And be it further enacted by the Authority aforesaid that if any person or persons have heretofore sithence the beginning of the Queens Majesties Reign that now is made or hereafter shall make any conveyance Gift Grant or Demise Charge Limitation of Use or Uses or Assurance of in or out of any Lands Tenements or Hereditaments with any Clause Provision Article or Condition of Revocation Determination or alteration at his or their will or pleasure of such Conveyance Assurance Grants Limitation of Uses or Estates of in or out of the said Lands Tenements or Hereditaments or of in or out of any part or parcell of them contained or mentioned in any Writing Deed or Indenture of such Assurance Conveyance Grant or Gift and after such Conveyance Grant Gift Devise Charge limitation of Use or Assurance so made or had shall or do bargaine sell demise grant convey sell or charge the same Lands Tenements or Hereditaments or any part or parcell thereof to any person or persons bodies Politick or Corporate for money or other good consideration paid or given the said first Conveyance or Assurance Gift Grant Demise Charge or Limitation not by him or them revoked made void or altered according to the power and authority reserved or expressed unto him or them in and by the said secret Conveyance Assurance Gift or Grant That then the said former Conveyance Assurance Gift Grant or Demise as touching the said Lands Tenements and Hereditaments so after sold bargained conveyed demised or charged against the said Bargainees Vendees Lessees Grantees and every of them their Heirs Successors Executors Administrators and Assigns and against all and every person and persons which have shall or may lawfully claim any thing by from or under them or any of them shall be deemed taken and adjudged to be void frustrate and of none effect by vertue and force of this present Act. So that this Statute doth not only aide Purchasors of the Lands but those who for a valuable consideration have any charge out of the Land or upon the Land But it may be objected that the Statute doth make the revokable Conveyance void only against the Bargainees Vendees Grantees Object and Lessees but does not speak of any Conuzee But I answer that it appears by the foregoing words Respons that the Statute intends to aide not only Bargainees c. but also all that have any charge out of the Land or upon the Land and although the last words of the Statute doe not speak expresly of Conuzees yet the Statute shâ—ll be expounded to extend to them and the Statute of West 2. cap. 1. Quod illi quibus tenementa data sunt in Taile potestatem alienandi c. which words seem only to restrain the Dâ—nee in Tail yet in the 5. Edw. 2. Form 52. the issue is thereby restrained and 3. Edw. 3. Formedon 46. that Tenant in tail cannot charge the Land no more then alien can forfeit the Land so that if he grant a Rent or acknowledge a Statute or Recognizance or commit Felony or Treason and dies the Issue shal have the Land discharged And this Statute hath alwaies been taken as to the equity thereof to releive Purch sors and those who have and therefore in Coke R. 3. 82. B. Standen and Bullocks case Mich. 42. 43. Eliz. where a man had conveyed his Land to the use of himself for life and then to the use of divers others of his blood with future power of revocation as after such a Feast or after the death of such a one and after and before the power of revocation commenc'd he for a valuable consideration did bargain and sell the Land to another and his Heirs this bargain and sale is within the remedy of the Statute for although the Statute saith the said first Conveyance not by him revoked according to the power by him reserved which seems by the literall sense to be intended of a present power of revocation for no revocation may be made by force of a future power untill it comes in esse yet it was holden that the intention of the Act was that such a voluntary Conveyance which was originally subject to the power of revocation be it in present or in future shall not be good against a Purchasor bona fide upon valuable consideration and if other construction be made the Act will signifie very little and it will be easie to evade such an Act. And so if A. hath reserved to him a power of revocation by the assent of B. and then A. bargains and sells the Land to another this bargain and sale is good and within the remedy of the said Act. The King against Sir John Byron Knight IN a Quo Warranto for that the Defendant for a year past hath used and yet doth use without any Warrant within the Mannor of Colswick in the County of Nottingham within the bounds of the Kings Forest of Sherwood and within the reguards of the said Forest to have a Park within the said Mannor with a Pale Hedge and Ditch inclosed being two hundred acres of Pasture and a hundred acres of Wood within the said Park Et ad venandum capiendum occidendum apportandum in the said Park and two hundred acres of Pasture and a hundred acres of Wood omnes omnimodas damas Domini Regis Forrestae suae praedict in parcum praedict praedict 200. acr pasturae 100. acr Bosci aliquo tempore venand occidend Ita quod Forrestini Domini Regis forestae praâ—dict nec aliquae aliae personae quaecunque intromittantur ad venandum fugandum intra parcum praedictum 200. acr pasturae 100. acr Bosci sine licentia defendentis The Defendant pleaded that John Biron Knight the Defendants Grandfather was seised in Fee of a Messuage of a hundred acres of land two hundred acres of Meadow three hundred acres of pasture and a hundred acres of wood in Colwick in the County aforesaid now and time out of mind called the Mannor of Colwick within the meets and bounds of the Forâ—st aforesaid And that the said John Byron the Grandfather and all those whosâ— Estate the said John Byron hath in the aforesaid house and a hundred acres of land two hundred of Meadow and three hundred of Pasture and a hundred of Wood in Colwick aforesaid have had
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
time as in 11 Ed. 3. and 8 H. 5. 10. and 2 H. 4. 2. The Successor shall maintain an Action of Waste against such Lessee for life but a Lease for years is meerly determined by the death of the Lessor 38 H. 8. 6. Leases 18. and 24 H. 8. 6. There a diversity is taken and agreed between a Lease for life made by a Parson in which case the acceptance of the Rent or fealty by the Successor shall make it good for his time and a Lease for years which is meerly determined by the death of the Lessor so that no acceptance of the Rent or fealty can make it good and therefore the acceptance of the Rent in our case which is found to be made by the Lessor himself and all the succeeding persons and also by the Rule of these Books is nothing to the purpose and therefore I shall speak no more of that Vide 2 Ed. 6. 33. Dyer 239. And as to the second Point sc If here be any sufficient confirmation of the Lease against the Plaintiff or not The Defendant hath endeavoured to have many things to be found by the Iury to make a confirmation 1. The expresse confirmation by Valentine Knightley the Father of Sir Richard 2. The Grant of the Lease by Sir Richard to Edward Knightley his Son 3. The taking of the Profits by Sir Richard to the use of his Son being within age 4. The Lease made by Sir Richard the 21. of Eliz. to Rogers the Incumbent for I cannot conceive for what cause any of these things are found unlesse it be to opperate as to a confirmation And as to the first third and fourth I do conceive that they nor none of them can make this Lease good for by the first it is found that Valentine at the making of his confirmation had but an Estate for life of Ursula Knightley the which is meerly determined by the death of Valentine and although Ursula be not found dead yet is not that materiall for this Advowson being a thing that lies only in Grant and not in Law cannot go to any Occupant And therefore the death of Valentine hath determined this as fully as if Ursula had been dead And therefore the diversity is when a rent or other thing which lies in grant is granted to one and his heirs for the life of another and the Grantee dies I agree that the heir by speciall limitation shall have this as Littleton 169. 19 Ed. 3. Account 56. but no Estranger can have it and the reason is because that the sole means that the Law doth give to one to gain an Estate of Occupancy is by Entry but no Entry can be in an Advowson Rent or any other thing that lies in Grant and therefore here can be no Occupancy 26. Assise 38. and 12 H. 7. 16. If he in Reversion doth enter after the Occupant and brings an Action against him the Occupant ought to plead the Lease for Cestuy que use whose Estate he hath but for a Rent or an Estate that lies in Grant none can plead a que Estate but ought to entitle himself by the Grant and that cannot any one do in this Case And as to the third matter of confirmation which is the taking of the Profits by Sir Richard Knightley this cannot be any confirmation of the Lease for although the assent of the Patron be sufficient yet it ought to be by Deed otherwise it cannot be good And as to the fourth which is the Lease made by Sir Richard by Rogers the Incumbent that is not any confirmation 1. Because this Lease does not concern the Lease made by Briggs but is an absolute and originall Lease made by Sir Richard himself as Owner of the Rectory 2. Because that at the making of this Sir Richard had nothing in the Rectory for he had granted all his term before to Edward Knightley and therefore his Lease to Rogers is void unlesse it be by way of Estoppell Then as to the second matter of confirmation sc whether the Grant of the Term by Sir Richard to Edward Knightley I will not agree to it at all but according to the resolution in Hodges case that this is a confirmation as good as Sir Richard could make it But this confirmation being in the nature of a charge upon the Advowson ought to be directed by the Estate which Sir Richard then had and being derived out of that Estate it cannot endure longer then the Estate as in Littleton 122. a. If a Parson doth charge the Glebe and the Patron and Ordinary confirm it the Grant shall be in force but in such case the Patron ought to have an Estate in fee for if he hath an Estate but for life or in Taile the Grant is good but during his life and the life of the Parson who grants it 31 Ed. 3. Grants 61. A Parson grants an Annuity to a Pryor which is confirmed by the Tenant in Dower of the Advowson this is not good after the death of the Tenant in Dower and Dyer 252. A Chantry Priest made a Lease for ninety nine years which was confirmed by the Patron who was Tenant in Taile and after the Chantry is dissolved by the 1. of Ed. 6. it is a question if the King shall avoid the Lease but it was agreed clearly that if the Chantry had continued that the Lease should be void against the Incumbent who comes in upon the presentation of the Tenant in Taile And this Rule being clear as I conceive it is that the confirmation shall not bind according to the Estate of the Patron the Estate which Sir Richard had in the Advowson at the time of his assignment which does imply a confirmation is to be considered And as to that the Case is That Valentine being Tenant in Tail of the Advowson by Deed did give and grant the Advowson to one in fee to the use of himself during the life of Ursula the Remainder to the use of Sir Richard being his Issue in Taile and thereupon it follows that Sir Richard had an Advowson in Remainder in Fee-taile depending on an Estate for anothers life but this fee was determinable upon the death of Valentine the Tenant in Taile But objection was made in the Argument against one Object that this Advowson being found to be granted by Valentine shall be intended to passe by Livery for it was said that an Advowson might passe by Livery and then here is a discontinuance But I deny first that an Advowson can passe by Livery Answer but admitting it would yet secondly Shall it not be taken by this Verdict to passe so And as to the first I must confesse that there are some suddain opinions in your Book that an Advowson may passe by Livery as 43 Ed. 3. 5. 11 H. 6. 4. and 20 Ed. 4. 5. yet are there many Authorities against it and so is the true reason of the Law 18 Ed. 3. 16. Shard It was never heard that
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
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
held and have accustomed to have in the aforesaid two hundred acres of pasture and a hundred of wood parcel of the aforesaid Tenements called the Mannor of Colwick belonging to the said Mannor of Colwick enclosing ditching and hedging at their will and pleasure with all liberties priviledges and Franchises to the said Park belonging and in the said Park from the time aforesaid have used to have and to keep Deer and from time to time to constitute and appoint a Keeper of the said Deer in the said Park who from the aforesaid time have used to keep the same ac ad venandum fugandum occidendum capiendum asportandum omnes omnimodas damas in eodem parco de tempore in tempus existentes ita quod nullus forestarius Domini Regis Forestae praedictae nec aliquae aliae personae quaecunque intromittantur ad venandum fugandum in parco praedicto sine licentia praedicti Johannis avi And set forth that the said John the Grandfather died seised whereby the said Mannor c. descended to Sir John Byron his Son And that Hillary 3. Jacobi a Fine was levied between Sir Peter Leigh and other Plaintiffs and Sir John Byron the son Defendant of the said Tenements to the use of the said Sir John for life the remainder to the Defendant in tail And that the seventeenth of December 10. Jac. did let the Premisses to the Defendant for eighty years if the Lessee should so long live wherby the Defendant the 26. Mar 11. Jac was and is thereof possessed did aver that the Mannor of Colwick in the information and the said Messuage a hundred acres of Land two hundred of Meadow three hundred of Pasture and a hundred of Wood to be the same and did also aver the life of the Lessor The Attorney Generall for the King did reply that before the information sc 9 Octobr. 19. Jacobi and long before and continuing after untill the exhibiting of this information the Defendant the Park and Tenements aforesaid with Ditches Hedges and Fences had so sleightly inclosed that the Kings Deer of the aforesaid Forest for defect of sufficient inclosing of the Park and Tenements aforesaid through the default of the Defendant did enter and the Deer of the King into the said Park and Tenements aforesaid for the cause aforesaid entring the Defendant did very unjustly kill the said Deer in the said Park and Tenements aforesaid The Defendant did maintain his Bar and traversed without that that the Defendant the Park and Tenements aforesaid with such sleight Fences Hedges and Ditches inclosed did keep the same Quod Damae Regis de forresta praedicta de tempore in tempus intra tempus praedictum in parcum tenementa praedicta pro defectu sufficientis inclusurae parci tenementorum praedictorum in defectu defen intraverunt absque hoc quod Defendens Damas Regis de forresta praedicta in parco tenementis praedictis pro defectu sufficientis inclusurae parci tenementorum praedictorum in defectu defendentis minus juste interfecit modo forma prout c. Whereupon the Attorney demurred And I conceive that Iudgment ought to be given for the King First Because the plea in Bar and the Rejoynder made by the Defendant is altogether insufficient for divers causes Secondly As to matter in Law And as to the first The Quo Warranto doth suppose that the Defendant did use the liberties there mentioned within the Mannor of Colwick being within the meets and bounds of the Forest of Sherwood and within the Reguards of the said Forest and the Defendant did know this to be within the meets and bounds of the said Forest but does not answer whether it be within the Reguards or not for it may be within the meets and bounds of the said Forest and yet not within the Reguards as if the Mannor were disforested by Carta forestae because it was a Subjects Mannor and not the Kings yet it remains within the meets and bounds of the said Forest but not within the Reguards for now by the disforesting it is made purlue and not subject to the Reguards and Lawes of the Forest as to the Owner of the Mannor Vide Carta Foresta fol. 1. and yet notwithstanding this Statute if the King had granted this Mannor to be free of the Reguards or out of the Reguards yet is it still within the meets and bounds of the said Forest Secondly The Dendant makes Title to the liberties whereof Sir John Byron his Grandfather was seised in Fee viz. of a Messuage a hundred acres of land two hundred of Meadow three hundred of Pasture and a hundred of Wood in Colwick now and time out of mind called the Mannor of Colwick Quodque ille omnes illi Quorum statum idem Johannes habuit in tenementis praedictis habuerunt tenuerunt habere consueverunt in praedictis 200. acris pasturae 100. acris bosci parcellis praedictorum tenementorum vocat mannerium de Colwick praedictum parcum tenementa praedicta vocat mannerium de Colwcik spectant pertinent c. So that the Defendant doth not prescribe but doth alledge only that Sir John Byron and those whose estate he hath have used to have a Park the which is no Title to the Park for that ought to be time out of mind Thirdly The Defendant doth claim to have a Park in the aforesaid two hundred acres of pasture and a hundred acres of wood whereas there is no speaking of two hundred acres of pasture before and therefore he ought to have said in two hundred acres of pasture parcell of the said three hundred acres Fourthly The Defendant doth not answer to the killing of the Kings Deer of the Forest but doth only justifie the killing of all Deer time out of mind being in the said Park Fifthly The Rejoynder is a manifest departure from the Bar for in the Bar he claimeth to have a Park ditched and hedged Per voluntatem eorum inclusum so that by this pretence he may keep the Park with such low Hedges as he will and yet in his Rejoynder he doth traverse absque hoc that he kept the Park adeo parvis sepibus Fossatis quod Damae Regis de foresta praedicta in parcum praedictum pro defectu inclusurae intraverunt absque hoc c. So that the Defendant by his Rejoynder doth make an Issue upon that which he doth justifie in his Bar and doth upon the matter deny in his Rejoynder the matter alledged by him in his Bar. And as to the matter in Law I conceive that the Defendant cannot prescribe to have a Park in such manner as he pretendeth for that such prescription is quite contrary to the nature of his Royall Franchise of his Forest and is to the destruction of it for a Forest is a Royall Franchise so that regularly none can have it but the King as it was adjudged in this Court in a Quo Warranto
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
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
been granted with a fee of five marks from time to time by the Bishop grantor and his Predecessors to whom they pleased Cooks 9 Rep. Earl of Shrewsburies Case The Earl of Rutland was made Steward of a Mannor for life without any words to make a Deputy yet it was resolved that he might make a Deputy because it was not convenient for him to exercise such an Office So if an Office doth descend to an Infant he must of necessity make a Deputy And so if a Bishop be seised of a Mannor he may ordain a Steward of the said Mannor and may grant to the Steward a fee for the execution of the said Office according to the resolution in the said Case of the Bishop of Chester Object But it may be objected that here is a greater Fee granted then was before viz. Pasture for two Horses and therefore the Grant is not good to bind the Successor Respons And I do agree that the Grant of the said Pasture is void yet that shall not at all prejudice the Grant of the said Office with the ancient Fee for they are severall and distinct Grants so that the one viz. The Grant of the Office with the ancient Fee is good by the Law against the Successor and the other void against the Successor but it cannot hurt the grant of the Office and ancient Fee no more then if a Bishop should grant an old Office with an ancient fee and also a new Office which was never granted before and all this by one Deed of Grant and this is duely confirmed although this be void against the Successor as to the new Office yet it is good for the ancient Office and the ancient see for although these fees are contained in one Deed yet are they severall and distinct so that one may be good and the other void 33. H. 8. Dyer 48. One seised of a Mannor to which a Villain was reguardant did grant one acre and also the Villain the Villain did pass in gross and the reason there given is because there be severall Gifts contained in one Deed. Also the Averment of the Plaintiff is insufficient viz. That the pasture was never granted by any of the Predecessors of the Grantor so that it may be that they were granted by himself being Bishop many times before the said Statute and then the Successor may well grant it and in the said case of the Bishop of Salisbury it is averred that the Grant was not by the Bishop Grantor nor any of his Predecessors William Whitton Clerk Plaintiff Sir Richard Weston Defendant in an Action of Debt The Case THe Pryor of S. Johns of Jerusalem did hold certain Lands discharged of Tythes by reason of their order Quandiu propriis manibus excolebant the Statute of 31. of H. 8. for discharging of Tythes is made the 32. of H. 8. it was enacted that the King should have to him his Heirs and Successors all the Lands Priviledges and Hereditaments of the said Pryory the King dies and the Lands by Mesne descents doe come to Queen Elizabeth who grants the Land to Sir Henry Weston Grandfather to the Defendant who died seised and the same descended to Sir Richard Weston Father to the Defendant and so from him to the Defendant And If the Land should be held discharged of Tythes as the Pryor held it was the question And I conceive that the Defendant shall hold the land discharged of Tythes in the same manner as the Pryor held the same For the argument of which two things are to be considered 1. Whether the King or his Patentee shall have the same priviledge which the Pryor had by the Statute of the 32. H. 8. or not 2. Admitting that they shall not have this priviledge by generall words of this Statute then Whether they be discharged by the clause of the Statute of 31. of H. 8. of Monasteries or not And I conceive that by each of these Statutes or at least by one of them the King and his Patentees shall hold this Land discharged of Tithes Quamdiu propriis manibus c. And as to the first point I conceive that the Statute of the 32. of H. 8. hath sufficient words to give this priviledge to the King for it gives to the King not only all their Mannors Lands and Tenements but also all their Priviledges belonging to them or to their Religion or Order and this discharge of Tythes is a Priviledge belonging to their Religion or Order for whereas Pope Pascall did order that no Monk or religious Order should pay Tithes afterwards Pope Adrian did grant this priviledge Solis Hierosolimariis Hospitulariis Cistersiensibus Templaribus and did take away that priviledge from all other Orders And I conceive it will not be denied but that the Pryor himself hath this priviledge and if he had it then it will follow that the King and his Patentee hath it also for all their priviledges are given to the King But it may be objected Object that these priviledges are given in respect only of their Order and the Order bring gone the priviledge is gone also I do agree that all personall priviledges concerning their Order are gone by reason of their dissolution Respons but such priviledges as concern the Land and will make the Land most profitable to the King are remaining and are given to the King for the intent of the Statute was to give it to the King in as ample and beneficiall manner and with all such priviledges concerning the Land as they themselves had And although Tythes are not issuing out of the Land nor shall be extended for unity of possession of the land as in the 42. Ed. 3.13 Where a Pryor having Tythes did purchase the Land and made a Feoffment yet shall he have the Tythes and so if a Parson makes a Lease for yeares of his Glebe-land yet he shall have Tythes thereof yet the priviledge to hold the Land discharged of Tythes is a priviledge concerning the land and is not like to the case of the appropriation of a Rectory to the Templars which was disappropriate by the dissolution of their Order for the reason there is because the appropriation was made to a body corporate which body being dissolved it is impossible they should retain the same and no body else can have it without a new appropriation or an Act of Parliament and for Appropriations to Abbeys c. the clause in the 31. of H. 8. was necessary for otherwise the Patentees of the King being Lay-people and not capable of an Appropriation they cannot have it but by speciall provision by Act of Parliament but any man may hold Land discharged of Tythes But it may be again objected that in the same Parliament an Act was made to revive temporall Liberties Priviledges and Franchises Object 2 of Monasteries and therefore all those had been lost if it had not been for this Statute and Sprituall priviledges are not revived by
the Receipts and there being three other Co-trustees with him the Plaintiffs Councell conceived that he ought not to be charged with more then he himself received especially for that the other parties trusted and who received the profits were or were reputed to be men of ability and responsible Touching which last point being that where on the Plaintiffs Councell chiefly insisted for the reversall of the said Decree as against the now Plaintiff It appeared unto this Court that Challoner Father of Thomas the Infant did heretofore make a Lease of the said Lands to one Weeks for five and thirty yeares and afterwards conveyed away the Reversion to Thomas Challoner his Brother and after the death of Francis according to an Award made between the said Weeks and Thomas Challoner the Brother who was Vncle to Thomas the Infant the Lease of five and thirty years and the Reversion in Fee-simple were to be assigned to parties trusted by the said Weeks and one Barbara Challoner Mother of the said Infant and by the said Thomas the Vncle the Lease to be intrust for Weeks for life the remainder to Barbara for life the remainder to Thomas the Infant and the reversion in fee to be in trust for the said Thomas the Infant But upon the limitation or Condition that the said Thomas the Infant when he came of age should make some assurance to Thomas the Vncle according to the Award wherein if he failed then the trust limited to him should cease and the Trustees should be seised for Thomas the Vncle. In pursuance whereof the now Plaintiff and the said Forster were trusted together with one Langworth and Lovell to take the Estate in the Lease and did take an Assignment thereof from Weeks the 12th of June 9. Jacobi And all the Trustees sealed the Counterpart and the same day the now Plaintiff and Forster assigned their moyity in the said Lease to one Mr. Peacock and Robert Forster who were not privy nor acquainted therewith and on the thirteenth of June the ninth of King James the said Thomas Challoner the Vncle passed over the Inheritance to the now Plaintiff and Thomas Forster whereby it was probable that the said Assignment made by the now Plaintiff and Thomas Forster of their interest in the moyity of the Lease was to keep the same from being extinguished After which assurance so made Weeks during his life and Barbara after him during her life received the profits of the said Lands and Barbara in the year of our Lord 1614. dyed And it appeared that soon after the death of the said Barbara viz. 23. of March 12. Jacobi Langworth one of the Trustees of the Lease being dead whereby his interest in the moyety survived in Lovell that Thomas Challoner the Vncle procured the said Lovell to assign over his interest in the said Lease to the said Thomas Challoner the Vncle lyable to the said trust as by a Copy of the Assignment now read appeared And it appeared by the confession of the now Plaintiff and by his answer to the former Bill and by the Acquittances now produced that the now Plaintiff joyned with the said Thomas Forster in giving acquittances for the three first half years Rents but it did not appear that he ever received any after or gave any more Acquittances but it doth appeare by the proofs that the said Thomas Challoner the Vncle who had the Assignment from Lovell did receive the Rents of the Tenants and payd the same over to the said Thomas Forster and that when the Infant came of age he called the said Thomas Forster and Thomas the Vncle to an account and that they did account And that the said Thomas Forster did then deliver him a Book of account which the Defendant now produced in Court by which it did appear that for the three first half years the Rents were received by the said Thomas the Vncle and by him paid to the now Plaintiff and the said Thomas Forster for the use of the Infant but for all the subsequent time the same were received by the said Thomas Challoner the Vncle and by him paid to the said Thomas Forster alone who as was not now denyed was at the time of such receits generally taken to be of great ability and responsable as it also appeared by the proofs that the said Infant after he came of age had declared the said Thomas Forster to be his Debtor and did by his Will read in Court give the said summe of one thousand seven hundred pounds to the said Mountford as a Debt owing by the said Thomas Forster solely not mentioning the now Plaintiff Vpon all which this Court was fully satisfied that the now Plaintiff received no penny of profits after the three first half years but whether he ought to be charged with all that the said Thomas Forster received being a Co-trustee with him in respect the said Forster is now declined in his Estate as is conceived this Court somewhat doubted and although a president was produced wherein this Court had charged parties trusted but onely according to their several and respective receits and not one for the other yet in respect the Defendants Councel opposed the same alledging many presidents to be on the other side and the Lord Keeper conceived the case to be of great consequence and thought not fit to determine the same suddenly but to advise thereof and desired the Lords the Iudges assistance to take the same into their serious considerations and to assist him with their advice therein whereby some course might be settled that parties trusted might not be too much punished lest it should dishearten men to take any trust which would be inconvenient on the one side nor that too much liberty should be given to parties trusted lest they should be emboldened to break the trust imposed on them and so be as much prejudicial on the other side And the Lord Keeper and the Lords the Iudges assistants afterwards conferring together and upon mature deliberation concerning the case to be of great importance his Lordship was pleased to call unto him also Mr. Iustice Crook Mr. Iustice Barcley and Mr. Iustice Crawley for their assistance also in the same and appointed presidents to be looked over as well in this as in other Courts if any could be found touching the point in question whereupon several presidents were produced before them some in this Court and some in the Court of Wards where parties trusted were chargeable onely according to their several and respective receits and not one to answer for the other but no president on the contrary was produced to them Whereupon his Lordship after long and mature deliberation on the case and serious advice with all the said Iudges did this day in open Court declare the resolution of his Lordship and the said Iudges That where Lands or Leases were conveyed to two or more upon trust and one of them receives all or the most part of the profits
Common tâ—â—ne and the Term to another and dies and the Executor payes the Rent or suffers the Devisee of the Common to put in his Cattell this is no assent as to the Term for the Term is one thing and the profit out of it is another thing but there in the principall Case the assent of the Executor of the Devise to occupy the Land was a sufficient assent to the Remainder of the Term because the occupation of the Land and the Land it self is all one and Comment 541. the same agreed and that the first assent doth go to all And it is no assent to the Term neither can it be taken by Implication to be any assent to the Devise of the Rent for every Act that does enure to another Act by Implication ought to be such as of necessity ought to enure to the other Act which cannot be taken to be otherwise and therefore 2 R. 2. Attornment the 8th A Woman grants a Reversion to which a Rent was incident and afterwards marries the Grantee to whom the Tenant payes the Rent this is no Attornment for it is indifferent whether he payes the Rent to him as Grantee or in right of his Wife Dyer 302. Vivors Case que recover Rents of severall Tenants as Bayly and then they be granted to him and after the Grant they be paid to him this is no Attornment for they may be paid to him as he is Baily as well as he is Grantee But if the Lessee do surrender to him in the Reversion then it is a good Attornment for a Surrender cannot be to any but to him that hath the Reversion And so in our Case it is cleer that the assent to the Legacy of the Land it self is not any expresse assent to the Rent nor any implyed assent for there may be an assent to the one and not to the other and where the Wife had assented to the Devise of the Term she hath utterly dismist her self of the Term as Executor notwithstanding the assent to the Rent but having once assented to the Devise of the Term she hath no more to do with it and therefore in such Case the Legatee of the Rent ought to sue in the Court Christian for his remedy against the Executor in the same manner as if a Term were devised to one and the Executor will not assent to it but sells the Term to another And in this case if the Testator were indebted after this assent to the Devisee of the Term the Term cannot be put in execution for this Debt but the assent of the Wife is in her a Devastavit 21 Ed. 4. 21. 37 H. 6. 30 2 H 6. 16. Also here is no Rent devised out of this house for the Devise is Ex omnibus aliis terris suis which word all excludes all the Lands wherof any mention was made before And Coke Rep 1. Mildmayes Case There Sir H.S. did covenant for a Ioynture for his life and for the advancement of his Issue Male if he had any and for advancement of his three Daughters and for continuance of his Land in his blood to be seised to the use of himself for life and then of part to the use of his Wife for her life with other remainders to his Issues Males and Females Proviso that it should be lawfull for him to limit any part to any person for life or years for payment of Debts or Legacies preferment of his Servants or other reasonable considerations And then he did limit the part of one of his Daughters to another for the term of a thousand years and this was adjudged a void limitation and one principall reason was because that the word other cannot comprehend any consideration mentioned in the Indenture before the Proviso and the advancement of his Daughter was mentioned before Object 2 But it may be objected that other Lands shall be understood such as shall be demised after her marriage and so will not relate to the house whereof there was mention made before Answer That this Obligation is against the recited resolution for it may as well be said in this Case that other considerations shall be other then what are mentioned in the said Proviso but it was resolved that other shall exclude all considerations mentioned before the said Indenture and so he excludes in this case all mention before in this Writ And this Case was argued at the Bench Pasch 14. Jac. And all the Iustices did agree that all the exceptions taken by the Counsell of the Defendant as well to the matter as to the pleading to be of no force saving the principall point sc If the Rent shall be determined by the death of the Wife or not and herein the Court was divided viz. Haughton and Crook held that it was determined but Coke and Doderidge on the contrary Et sic pendet c. Hillar 12. Iac. Iohn Harry and Lewis Howell against Grace Harry IN a Writ of Errour brought to reverse a Judgment given in a Writ of Dower brought by the said Grace of the endowment of Richard Harry her Husband And the Error assigned was because the demand amongst other things was De tertia parte de uno Horreo uno pomario and the Tenants pleaded Ne unques accouple in legall matrimony which was certified against them whereupon Judgment was given against them whereupon the Demandant did surmise that her husband died seised and so prayed her Dower with damages Et petit breve tam de habere facias seisinam quam de inquirendo de damnis and the Writ of Error was purchased before the return of the said Writ or any Judgment given thereupon And I conceive that it is Error for the Demand ought to be as certain and formall as a Writ for the Writ of Dower being generall De libero tenemento the Demand ought to make it certain and therefore it is of the same nature as the Writ is 8. Ass 29. 13. Ass 2. 13. Ed. 3. br 265. A Chappell or an Hospitall shall not be named but by the name of a Messuage and 8 H. 6. 3. Praecipe quod reddat does not lye of a Cottage and Cokes 11. Rep. Serbes Case in an Ejectione firmae of a Close called Dumote Close containing three acres adjudged insufficient for the name and quantity will not serve without the quality and certainty ought to be comprised in the Court because the possession is to be recovered And it was adjudged that the Error would not lye Loyde against Bethell HUmphrey Loyde brought a Writ of Error in the Kings Bench against Bechell and others to reverse a Recovery had at Cardiff in the County of Flynt by Nicholas John ap Robert Loyde to whom the Defendants are Heires against John ap De ap Robert Loyde for the now Plaintiff of Land in the County of Flynt which Assise did begin in the time of Queen Mary and did continue untill the Reign of Queen Elizabeth the third year
as of his Freehold whereupon Issue was joyned and found for the Plaintiffs and adjudged that they should have execution against Sir John Whitbrook whereupon the Sheriff was commanded to deliver the said lands to the Plaintiffs in execution and the sixteenth of June 12 Jacob. the said Tenements were found to the value of eighty shillings and were delivered to the said Executors in execution The twenty seventh of March 11 Jacob. Hanging the Writ of Scire facias the said Sir John Whitbrook did demise to the Defendant one Messuage and ten acres of Meadow parcell of the premisses Habendum from the said twenty seventh day for the term of three years by force whereof he entred and was possessed The sixteenth of June 12 Jacob. the said Executors did enter into the Tenements in the Inquisition mentioned whereof the said Messuage five acres of Land and ten of Meadow are parcell and did out the Defendant The one and thirtieth of August 13 Jacob. Robert Faldoe made the Lease to the Plaintiff and they found the Ejectment and prayed the advice of the Court. And I conceive Iudgment ought to be given against the Plaintiff For that a Tenant in Taile cannot charge the Land no more then he can alien 3 Ed. 3. 46. so in the 18 Ed. 4. 5. 21. If Tenant in Taile do sell the Trees and dye the Vendee cannot have them and the 17 Ass 21. Tenant in Tail acknowledgeth a Statute and dies the Issue enters and the Conusee does sue execution and enters and the Issue brings an Assise and recovers because this is a Disseisin to him and 11 H. 7. 21. 31 Ed. 3. 22. 14 Ass 3. Tenant in Tail grants a Rent and dies and the Issue enfeoffs a stranger adjudged that he shall hold the Land discharged for it was discharged by the entry of the Issue and 26 Ass 38. If Tenant in Tail doth charge the Land and dye and the Issue enters and pâ—yes the Rent and then after confirms the Rent this is good But in Brook Grants 73. contrary for the charge was avoided by the entry of the Issue But admit that this Recognizance shall bind the Issue in Tail yet it shall not bind the Termer but he shall avoid it 1 H 7. 9 7 H. 7. 11. and in the 30 Assise 10. the Tenant pleads recovery by Action tryed against a stranger and did aver the Estate of the Ancestor of the Demandant to be between his Title and the Recovery the Demandant said that the stranger was enfeoffed with Warranty and did not plead this and so did Fauxesie and Iudgment was awarded for him And although that this Lease was made after the Teste of the Scieri facias it is not materiall because the Lessor had good power to make a Lease and the Land was not subject to the execution and therefore the Lease here is good and cannot be avoided but only by the default of the Lessor in not pleading the Estate-tail and that is especially aided by the Statute because the Statute does aid the Lessee against such fâ—igned Recoveries against the Lessor and it is no Recovery untill the Iudgment had at which time the Lessee had a good Lease not subject to the execution 21. H. 6. 13. 14. He who comes to the Reversion hanging the Praecipe quod reddat against the Tenant for life shall be received by the Statute of Westm 2. cap. 3. and 16 H 7. 5. In a Writ of Entry or Disseisin he in the remaiâ—der does pray to be received the Demandant traverseth that he hath nothing in Reversion at the time of the Writ purchased and could not for if he purchased the Remainder hanging the Writ he shall be received And Hill 14 Jacob. All the Court did agree Judgment that the Lessee for the Lease made after the Verdict against the Issue in Tail could not falsifie wherefore Iudgment was given for the Plaintiff Penson against Mootham IN an Action of Covenant for that by Indenture Tripartite dated the fifth Decemb. 12. Jacob. It was between Abraham Baker by the name of Abraham Baker Owner of the moyety of a Ship called the Grissell of L. and of the Ship called the Peregrine of L. and of a Pinnace called the Hopewell of L. on the first part and the Plaintiff by the name of H. P. Owâ—er of the other moyety of the said Ships and Pinnace on the second part and the Defendant by the name of Ja. Mortham Nautestrategi dicti Itineris Anglice generall of the said Voyage N. N. B. W. and D. E. by the names of N.G. Naute magister dictae navis vocat le Peregrine B. W. Naute magister dict navis vocat the Grissell and D. E. Naute Magister of the said Pinnace and severall persons named in a Schedule annexed to the said Indenture on the third part It is testified and doth appeare that the said Owners had furnished and set forth and the said Victualer had victualed the said Ships as well for Trade as for Discovery and had delivered them to the said Generall Masters and Officers pro itinere faciend in such manner and to such an Island in the West-Indies or otherwise as it should be most profitable to the said parties at the discretion of the said Generalls and according to certain Articles of the Commissioners bearing date with the said Indenture and after their Voyage to return to the Port of London And that the said Generalls and each of the said Masters and Officers severally for each ones proper and severall part and not the one for the other did Covenant for themselves their Executors and Administrators with the said Owners severally and their severall Executors c. in manner c. and that they the said Generalls or the severall Masters and Officers their Executors or Assignes at any time during the said Voyage should go beyond the Cape of Good hope nor should do or commit any spoyle or losse to any of the Subjects of our Lord the King nor to any other person or persons being subject or in subjection to any Prince or Principality being in league or amity with our King nor shall do any thing whereby any detriment prejudice trouble or damage may come to the said Ships or Pinnace or any of them or to the said Owners or any of them respectively Breach 1 And that although the Plaintiff had performed all c. yet the said D.E. and the Commissioners aforesaid in the said Ship called the Hope-well during the said Voyage to wit the eighth day of March upon the high Sea neer the Isle of Saint Jago by force and armes did take and spoyle one Spanish Frigot laden with Rice c. which Sip and Goods were the Ship and Goods of divers persons who were Subjects to the King of Spaine the which King then was and yet is in amity and league with the King and the Defendant and the other Commissioners comming to the said Island did divide the said Goods amongst
in Bar to wit the Fine with proclamations pleaded by Mary Taylor and the warranty pleaded by Robert Leigh and 28 others of the Ter-tenants or by any of these pleas or not And as to the first If he in remainder depending upon an estate in Tayl may maintain a Writ of Error to reverse a Recovery against the first Tenant in Tayl after his death without issue And I conceive clearly that he in the remainder shall have a Writ of Error for the Writ of Error doth always pursue the nature of the Land and not the privity of the blood And therefore 5 H. 8. the Writ of Error shall go with the Land and therefore the Heir in special tayl shall have it although there be another Heir at the Common-Law And so in Fitz Herb. N. B. 21 K. He who is Heir to the Land that is lost shall have a Writ of Error and not the Heir at Common-Law as if Land in Borough-English be lost by erroneous Iudgment the younger Son shall have a Writ of Error and 3 H. 4. 19. The Heir in special tail shal have the Writ of Error although there be another Heir at the Common Law And 1 Mariae Dyer 90. Verneys Case The Writ of Error shall be brought by him who had the thing whereon erroneous Iudgment was given And as the especial Heir shall have the Writ of Error so shall he also in remainder or reversion upon an Estate for life after the death of the Tenant for life 4 H. 8. 21 H. 6. 29. But the sole Objection that hath any coulor against this was Object that this Writ of Error ought to be given to him in remainder by the Common-Law for it is not given by the Statâ—te of the 9th of Rich. 2. and then there can be no remainder upon an Estate tail at the Common-Law and therefore he in such remainder cannot have any Writ of Error But this is easily answered for the Common-Law being Answer that when an erroneous Recovery is had against a pâ—rticular Tenant that he in the Reversion or Remainder shall have a Writ of Error after the determination of the particular Estate it follows that when this new particular Estate is made by the Statute of Westm 2. he in the remainder shall have the same remedy And this is proved by the case of the Tenant in Tayl for although that his Estate was not at the Common-Law yet now he shall have all Actions which the Common-Law gives to a Tenant in fee which may stand with his Estate and therefore he shall have a Writ of Escheat a Quod permittat Nat. B. 124. 4 Ed. 5. 48. Nat. B. 212. and so he shall have an Assize and many other Writs which lie for a Tenant in fee at the Common-Law And for Authorities in this point Dyer 188. That he in the remainder after the Estate-tail spent shall have a Writ of Error and so is it in Dyer 40. in Verneys Case And in the 3 Rep. fol. 3. B. if is resolved that he who hath a remainder expectant upon an Estate in Tayl shall have a Writ of Error upon a Iudgment given against the Tenant in Tayl although there were no such remainder at the Common-Law for when the Statute de Donis Conditionalibus does enable the Donor to limit a remainder upon the Estate-tail all actions which the Common-Law doth give to the privies in Estate are by the same act as incidents tacitly given also according to the rule of the Common-Law and therefore as he in Reversion or Remainder upon an Estate for life shall have a Writ of Error by the Common-Law upon a Iudgment given against a Tenant for life although that they were not parties by Hyde Pryer Voucher c. so since the Statute de Donis conditionalibus shall he have who hath a Reversion or Remainder expectant upon an Estate in Tayl. And therefore I conceive the Writ of Error is good notwithstanding that Objection But now it is to be considered if this Plea of non-tenure shall avoyd the Writ of Error and I conceive it will not for three Reasons 1. I conceive that it is no plea to abate the Writ for the Plaintiffs might have reversed the Recovery against the Lessors of the Reversion onely without having made the Ter-tenants parties for the Writ of Error being grounded upon the Recovery does always lie against the parties to the Iudgment and their Heirs and may be reversed against them although they have nothing in the Land and this is clear by Nat. Brev. 107. and 26 Assis 12. A Writ of Error does lie against him who recovers and after the Error found a Scire facias shall issue against the Tenant and 42 Assis 22. and 44 Ed. 3. and 10 Ed. 4. 13. Non-tenure is no plea in a Writ of Error for the party to the Iudgment or his Heir And here in this case if those who have pleaded Non-tenure are not Tenants they are at no loss for they can lose nothing but this plea does discharge themselves onely and the Scire facias remains good against the Heirs and the other Ter-tenants 2. If Non-tenure could be a good Plea for the Ter-tenants in a Scire facias yet at the least it ought to be in such a Scire facias wherein the Ter-tenants are named and not in such a general Writ as this is For here the Plaintiffs have pursued their Scire facias in as good a form as may be viz. generally against the Heirs and the Ter-tenants and if there be any default it is in the Sheriff who hath returned those to be Tenants who indeed are not so and it shall be very hard if the Writ should abate for default of the Sheriff 20 Ed. 3. Scir facias 121. In a Scire facias on a Recognizance against the Ter-tenants it was said that one of them that ware warned had but a Lease for years of such a one who had the Freehold Iudgment of the Writ c. And there Birton said That the Sheriff had a general command to warn the Ter-tenants wherefore this is no Plea to the Writ And Hill and Wilby answered that it was otherwise for that the Plaintiffs at their peril should name the Ter-tenants in their Writ whereupon there was a new Writ Whereupon I observe that if the Writ be special naming the Ter-tenants as it was anciently then it ought to be so but of late such course hath been changed as appears by the 8 of H. 4. 18. and the Writ awarded generally and therefore such special Non-tenure shall be a good Plea for it is the default of the Plaintiff to pursue his Writ against one who is not Tenant but when the Writ is general Non-tenure is no Plea to the abatement of the Writ 48 Ed. 3 15. 8 H. 18. 48 Assis 2. and the 2 H. 4. 18. B. In a Writ of Account against the Sheriff of Northumberland of a Receit in Newcastle upon Tine and it was pleaded that Newcastle was
Court of the Kings Bench was on the contrary But afterwards the case was resolved upon another point viz. That the Lease was voyd because that the words a die confectionis c. were razed by the Lessee himself But admitting that in this case the Lease should not begin until the end of the first Lease yet that is no proof that in our case the Lease shall not begin presently for in this case of the 9 of Elizab. the true Grant in the premisses does shew the intent of the parties to make a Lease in Reversion and that shall controul the words in the Habendum a die confectionis also these words are qualified by other words in the Habendum viz. termino praedict finito Thirdly the former Lease is recited as a good Lease without doubt but in our case the first Lease is not received as a Lease in truth but is termed a pretended Lease and yet in this case there were diversities of Opinions if the Lease shall commence presently or not And Mich. 10 Jacob. Thomas Moor brought an Ejectment against John Musgrave upon a Lease made to him by William Moor the fifth of May 10 Jac. of a Messuage c. in C. in the County of Cumberland habendum from the Feast of the Anunciation last past for 21 years whereby he entred and was possest until the Defendant the same day did eject him To which the Defendant pleaded Not guilty And the Iury found that William Moor was seised in Fee and made a Lease to the Plaintiff habendum from the Anunciation of the Virgin Mary last past for the term of 21 years next ensuing the date hereof c. And Iudgment was given for the Plaintiff whereby it appears that the term shall begin from the first limitation And after the Case was argued on the Bench by all the Iudges Judgment and Denham Bromley and Tanfield were of Opinion for the Defendant wherefore Iudgment was given against the Plaintiff Michaelm 14 Jacob. Standish against Short in the Exchequer IN an Ejectment on a Lease made by George Walker Parson of the parish of S. John Evangelist in London 14 Junii 14 Jac. of a Messuage called the Swan in the said Parish habendum from the Anunciation last past for three years whereupon the Plaintiff was possest until he was ejected by the Defendant the 15 Junii in the same year And upon Not guilty pleaded the Iury found That the said Messuage did lie within the City of London and that it was an ancient City and that by the Custom every Citizen being a Freeman of London by his Will in writing may devise all his houses and Lands and any part thereof in the said City as well in Mortmain without license as in any other manner in Fee in Tayl for life or for years c. and that the said Custom and all other Customs of the said City the 7 of Richard the second were confirmed by Act of Parliament And they found that William Daringre Citizen and Freeman of London the tenth of May 34 of Ed. the third was seised in Fee as well of the said Messuages as of other Lands in London in Fee and the tenth of May 1360. and in the 34 of Ed. 3. made his Will in writing and thereby did devise the said Messuages by the name of his Tenements in these words following And first he devised a Quit Rent of 40 s. a year to the Parson of St. John Evangelist and his successors to pray for Souls and he did devise to the said Parson and his successors a Chamber with two Cellars thereupon lying on the North-side of his Tenement to pray for Souls And then followed this clause Item lego ordino quod unus capellanus celebret in Ecclesia Sancti Johannis praedict statim post decessum meum pro anima mea animabus praedictis quod idem capellanus percipiet annuatim de Tenemento meo 8 Marks pro stipendio volo quod idem capellanus ad matutinas missas omnibus aliis horis Canonicis in Ecclesia praedict intersit per dispositionem Rectoris ejusdem qui pro tempore fuerit de residuo si quod clarum fuerit ultra solutionem dict tenementi Volo quod Richardus filius Elizabethae uxoris meae scolatizando adjuvetur quousque ad legitimam aetatem pervenit ad ordines Sacerdotales percipiend cum Sacerdos fuerit volo quod idem Richardus dictum cantarium occupet pro termino vitae suae si voluit si non de residuo praedicti tenementi neque de cantario nihil percipiet sed Rector antedictus qui pro tempore fuerit 4 magistri sufficient Parochiam praesentent invenient unum capellanum ad dictum Cantarium occupandum in perpetuum de tenementis meis in dominica Parochia non legatis salvo quod lego de dictis tenement meis Rectoribus Successor suis illam mansionem quam Johannes Sherman modo tenet reddend inde annuatim tot quiet reddit de omnibus tenementis meis exeunt Item volo quod si dominica Cantuaria pro defectu dicti Rectoris vel Successor suorum retardavit ultra 40 dies inoccupat fuerit quod dict camer solarii mansiones erunt Gardianis de ponte Et id quod clarum fuerit residuum ultra solutionem reparationem praedict volo quod ponatur sub custode Rectoris 4 Parochianorum ad providend ornamentum libros dominicae Ecclesiae And the Devisor dyed the same day seised of the said Tenements And they further found that the Messuages wherein c. is parcel of one of the Tenements in the Will out of which the Testator did ordain that the said Chaplain should have eight Marks for his stipend and that Henry Tyting was Parson of the said Church at the time of the death of the Devisor and that the Church was voyd by his death and that the Lessor was presented admitted instituted and inducted and that he entered into the said Messuages upon the Defendant and did expel him and made the Lease to the Plaintiff who entered and was possest until the Defendant ejected him And whether the Defendant was guilty or not they prayed the Opinion of the Court. And I conceive that the Plaintiff ought to have Iudgment And the Question is Whether the Parson by this Devise shall have the houses the said eight Marks are limited to be payd to the Chaplain or not And I conceive that the Parson shall have it In the Comment 4136. It is taken for a Rule that in expounding of Wills the Law shall interpret the words of the Devisor and shall direct their operation according to the intent of the Devisor so that to the matter form and order limited in last Wills the Law does submit to them and wills that they should be observed And although that in Conveyances or Deeds executed by men in their life-times the Law doth require apt words to make
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
Sir William the Remainder to the said Elizabeth for life the Remainder to the Plaintiff in Fee as the Defendants alledged and so they were at Issue And the Iury found the Lease and the descent of the Reversion and the Fine 33 Eliz. and the use and the death of John Parsons ut supra And that the one and twentieth of September 5 Jac. Sir William Ligon and Elizabeth his wife did make a Deed of Indenture of the said Tenements in these words This Indenture made c. between them of the one part and the Plaintiff on the other part whereby Sir William for seven hundred pounds before the ensealing and delivery paid to Sir William by the Plaintiff did covenant that he and Sir William before Christmas next should levy to the Plaintiff a Fine with Proclamations of the said Tenements which Fine and all Fines and Assurances to be had within seven years should be to the use of the Plaintiff and his Heirs upon Condition that if Sir William and Elizabeth or any of them or the Heirs or Assigns of Sir William should pay to the Plaintiff or his Assigns nine hundred forty three pounds at the Annunciation 1611. that the Estate of the Plaintiff should cease and that Sir William and Elizabeth and his Heirs should enter and the Fine should be to the use of Sir William and Elizabeth and the heirs of Sir William And Sir William covenanted with the Plaintiff that he and his Heirs untill the nine hundred forty three pounds be to be paid should have and enjoy to their use under the said Condition and according to the meaning of the said Indenture and if default of payment should be made then after such default the Premisses and the Rents and Profits thereof if such default should be shall be taken and enjoyed to their use without any interruption of Sir William and Elizabeth c. and discharged and saved harmlesse of all Incumbrances c. made by Sir William c. except the said Lease and Sir William covenanted that if the nine hundred forty three pounds should be paid to pay to the Plaintiff the charge of the assurance Pasch 5 Jac. The Fine was levied by Sir William and his wife to the Plaintiff and they found that the sixteenth of April 6 Jac. the Conusance of the Fine was made at M. in the County of Wilts and that after the said Conusance and before the said fifth of September Pasch 20. Martii 5 Jac. the said Sir William made another Indenture between him and his wife of the one part and the Plaintiff of the other part whereby Sir William and Elizabeth for seven hundred pounds before paid to them by the Plaintiff Sir William and Elizabeth did bargain sell and grant to the Plaintiff and his heirs the said Tenements upon the like Condition as aforesaid and Sir William did covenant that he and his wife should make a further assurance by Fine c. and that all such assurances should be to the Plaintiff and his Heirs under the said Condition untill default of payment and after such default to the use of the Plaintiff and his heirs absolutely and if payment be made to the use of Sir William and Elizabeth and the heirs of Sir William and the Plaintiff did covenant that Sir William and Elizabeth and their heirs untill the Annunciation 1611. should have all the Rents and Profits of the Premisses without interruption of the Plaintiff or his heirs That the eighth of December 6 Jac. Sir William Ligon died after whose death scil the aforesaid time quo c. the Defendants as Bayliffs to Elizabeth did take the said Oxe in the said place for the said seventy eight pounds six pence of the said Rent for three quarters ending at Christmas 9 Jac. But whether the Distresse was well or not they prayed the advice of the Court c. And upon this Verdict it was adjudged in the Common Pleas after many Arguments that the Plaintiff should recover For all the Iustices did agree that the said Fine was to the use of the Plaintiff and his Heirs whereupon the Defendant brought this Writ of Error and assigned the Error in the point of Iudgment only And it was objected by the Councell of the Plaintiffs in the Writ of Error that that it was apparent upon this assurance that it was made for the assurance of the payment of seven hundred pounds lent by the Plaintiff to Sir William and Sir William was to repay nine hundred forty three pounds which was full Interest according to the rate of ten in the hundred and then by the expresse Covenant in the first Indenture the Defendant in the Writ of Error was to have the Rents and Profits of the Land also whereby Worfeild should have more then ten pounds in the hundred and then the assurance is void by the Statute of Vsury then although by the last Indenture it is provided that Sir William and his wife should have the Rents and Profits untill the day of payment yet this shall not bind the wife for it is found expresly that she did disagree to this Indenture But I conceive that the Distresse was not well taken but that the Fine was to the use of William Worfeild and his heirs and so the Rent belonged to him And first as to the Objection that the assurance is void by reason of the Statute of Vsury that cannot be 1. Because it was not found that there was any lone of mony or usurious Contract and therefore it may be and so it shall be intended that the seven hundred pounds was paid bona fide after the purchase of this conditionall Estate made to William Worfeild 2. The Consideration is for seven hundred pounds paid before the ensealing and delivery of the Indenture so that if it be admitted that the seven hundred pounds was lent as Interest yet it may be that this was tent so long before the making of the Indenture that the nine hundred forty three pounds to be paid with the Profits of the Land does not exceed the principall debt according to the rate of ten pounds in the hundred And that Vsury shall not be intended without it be expresly found by the Iury vide Coke 10. Rep. the Case of the Chancellor of Oxford fol. 56. Covin shall not be intended or presumed in Law unlesse that it be expresly averred and so was it agreed in the Case between Tyrer and Littleton in the Common Pleas for the taking of an Oxe The Defendant pleaded Not guilty and the Iury found that Thomas Tyrer held certain Land of John Littleton by Rent and Herriot and the 42 of Eliz. did enfeoff John Tyrer his Son and heir who made a Lease to Thomas Tyrer for forty years if he should so long live to the intent that Joyce whom he intended to marry should not have her Dower during his life Thomas died possessed of the Oxe and the Defendant took it for a Herriot And they found
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
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