said Queen her Heirs and Successors for ever which Deed was acknowledged the 25th day of March 32 Eliz. and enrolled in the Chancery the 12th day of May in thâ— same year And there was a Proviso in the same Deed that if the said Robert Bret shall pay to the Queen at the receipt of the Exchequer 5 s. of lawfull money that then the said Gift Grant Bargain and Sale shall be void and that from thence-forward it shall be lawfull for the said Robert Bret and his Heirs to re-enter into the said Tenements and in the mean time between the Inrolement of this Deed And the said 14th day of Octob. to wit the 15th day of September 32 Eliz. the said Arthur upon the said Tenements in North-petherton entred and claimed the Reversion therof in the right of the said Elianor his wife by reason of the death of the said Christian And that afterwards to wit the 30th day of February 33 Eliz. the said Robert Bret to redeem the said Tenements out of the Queen paid the said 5 s. at the receipt of the Exchequer which payment is there recorded and enrolled accordingly after which in September 34 Eliz. the said Arthur and Elianor sued out a speciall Livery of the said Elianor out of the hands of the Queen of all the Lands seised into the hands of the Queen by reason of the Nonage of the said John Mallet And afterwards in the same meneth of September 34 Eliz. the said Arthur and Elianor sued out another speciall Livery as Heir to the said Christian of all the Lands which were in the Queens hands by the death of the said Christian And it was further found that the said John Clark and Elianor Middleton died after the 5 s. paid as before and that the said Robert Bret entred the 8th day of October 34 Eliz. and then made the Lease to the Plaintiff upon which the Defendant by commandment of the said Arthur and with him entred upon the Plaintiff and the generall question was Whether the entry of the Defendant were lawfull But no ouster of the Plaintiff was found And by Clench and Fennor a Fee-simple passe at Common Law by a Fine levied by him in Reversion or Remainder in Tail because a Fine is said to be a Feoffment of Record and by their entry and Feoffment a Fee-simple passe in such a case at Common Law But by Popham and Gaudy a Fee-simple doth not passe nor nothing but that which Tenant in Tail may lawfully grant over which is for his life in which he said that Littleton was plain in all cases of Grant although it be by Fine and a Fee-simple does not passe at Common Law but where the Fee may be drawn out of him who had the Reversion or Remainder in Fee therupon if such a Reversion or Remainder had been in a stranger which had not been in this case if the Reversion or Remainder had been in a stranger and therfore a Discontinuance cannot be of an Intail where the Reversion or Remainder is in the King But by them all however it was at Common Law it is cleer upon the Statute of Fines that a Fee-simple determinable passe by such a Fine as soon as the Fine is levied because every Fine by presumption of Law shall be taken to be such wherupon proclamation is made untill the contrary therof appeareth to the Court. And this is the reason why a Quid juris clamat is at this day maintained upon such a Fine which was not at Common Law before this Statute or otherwise it will never lye And so it was holden lately in the Common Bench in the case of Iustice Wimondham and yet we may see that the Quid juris clamat ought to be brought before that the Fine be engrossed wherby it is manifest that now a Fee-simple shall passe by the Fine levied for the possibility of the Proclamations to wit that the Proclamations shall not be made and to this Fee-simple the Proclamations shall enure to make a bar to the Estate-tail But such a Fine by Popham and Gawdy was not any wrong to him who had the Reversion or Remainder in Fee being levied by him who had a mean Reversion or Remainder in Tail depending upon an Estate for life or in Tail precedent And it is cleer that the Proclamations do not make the Estate but enure to the Estate made by the Fine for if an Estate be granted in Reversion for life or in Tail by Fine with Proclamations by such a Tenant in Tail in Reversion or Remainder the Proclamations work to this Estate and no further for alwaies the Estate passe by the Fine and the Proclamations make the Bar according to the Estate which passe by the Fine before But by Clench Gawdy and Fennor the Fee-simple which was in the Queen after the Fine levied as before was divested by means of this claim made upon the possession of the Queen lo that the Proclamations following are of no force to hurt the Estate tail for they said in divers cases a possession may be invested out of the Queen without Office Petition or Monstrans de droit as the case is where a man devise that his Land shall be sold and in the mean time before the sale the possession of the Land cometh to the Queen and afterwards the Land is sold according to the Will the Vendee enter there the Land passe from the Queen therby and is divested and so in many other cases And in all cases where the Queens Estate is determined the Subject may enter into the Land without Office or Ouster le main c. And they said if it had been in the possession of a common person that by such a claim the force of the Fine had been defeated and this appeareth by the case between Smith and Stapleton in the Commentaries where it is holden that where a Fine is levied with Proclamations by Tenant in Tail of an Advowson Rent or Tithes by claim made by the Issue in Tail before the Proclamations are passed where the Tenant in Tail is dead the same is defeated and that the Proclamations passing afterwards shall not be of force to bar the Intail And they said that the conveyance therof to the Queen after the Fine levied doth not make it to be in worse case And admit it will not serve against the Queen yet the claim will serve against Bret when he had entred by the performance of the Condition And Clench and Gawdy said that Bret shall not take advantage of this covenous Deed made by himself of very purpose to bar the party who had right and to put him without remedy no more then where the Disseisor enfeoff his Father who dies seised he shall not take advantage of this descent or if he who hath cause of Action to recover Lands by Covin causeth another to enter into the Lands to the intent to recover against him and does it accordingly for the Covin the Recovery shall
grants over the Reversion the first Lessee dies and the Grantee of the Reversion brings a Writ of Covenant against his Executors In which case there were two points 1. Whether these words And the said Lessee his Executors Administrators and Assigns shall from time to time c. make a Covenant or Whether Covenant lies against the Executor of a Lessee after assignment no. 2. Whether as this case is it will lye against the Executors of the Lessee As to the first point it was agreed that it is a Covenant for being by Indenture it is the words of both parties and it is more strong being in the case of the Queen Haughton laid that 25 H. 8. Tit. Covenant Covenant will lye against a Lessee after assignment but Debt lyeth not for Rent after the Lessee hath accepted the Assignee for his Tenant and therfore it seems that by the expresse words of the Covenant that the Action lies Doderidge Iustice contra for between the Queen and the Lessee there is privity of Contract and also of Estate so that the Queen her Heirs and Successors might have had an action against the Lessee or his Executors upon the privity of Contract and where the Lessee â—ssigns over the privity of Contract remains but the privity of Estate is gone to the Assignee and now when the Queen grants over the Reversion the privity of Contract is utterly determined wherby the Action of Covenant cannot be maintained against the first Lessee or his Executors who are more remote to which Mountague chief Iustice agreed see 2 H. 4. 6. 6. H. 4. 1. and Co. lib. 3. Walkers case and the Iudgments there cited Et adjournator The same Term in the same Court. Bennet versus Westbeck THe Case was thus Tenant for life Remainder for life Reversion in Fee he in Remainder for life gives his Deed of Demise with the assent of the first Tenant for life upon the Land to a stranger in the absence of the Lessor and said that he surrendred to him in Reversion And it was said that this Surrender being without Deed was not good to him who was absent and to confirm it the case was put out of 27 H. 8. Where Mountague chief Iustice said that if a Feoffment be made to four and Livery is made to one in the absence of the other but in name of all if it be by Deed this shall enure to all but if it be without Deed then only to him to whom the Livery was made So here this Surrender doth not enure to him in the Reversion being absent Whether Tenant for life in Remainder may surrender without Deed. But Non aliocatur for the sole point now in question was whether he in Remainder for life can surrender without Deed and as to it this Rule was taken viz. That that which cannot commence without Deed cannot be granted without Deed as a Rent Reversion common Advowson c. as 19 H. 6. 33. 14 H 7. 3. 1 2. Ph. Mar. 110. 22. Ass Pl. 16. But in this case this took effect by Livery and not by Deed and therfore might be determined without Deed. Mountague and Haughton agreed that it might be surrendred without Deed because it had its beginning without Deed but it could not be granted over without Deed. Doderidge Iustice said that it could not be surrendred without Deed but he said that Tenant in possession may or Tenant for life and he in Remainder together may surrender to him in the Reversion but this shall innure as two severall Surrenders first of him in Remainder to the Tenant for life and then by the Tenant for life to him in the Reversion Crook Iustice agreed with Doderidge for the Estate of him in Possession is an Estoppell to the Surrender so that it could not be surrendred without Deed. The same Term in the same Court. Thurman versus Cooper IN an Ejectione firmae brought by John Thurman against William Cooper upon the whole matter the case was thus Lands were given to a man and woman who afterwards inter-marry and to their Heirs and Assigns Habendum to them and to the Heirs of their two bodies engendered the remainder to them and the Survivor of them with warranty to them and their Heirs and Assigns for ever And the question was what Estate this shall be whether an Estate-tail or Fee-simple or a Fee-tail with a simple Expectant And it was said that this shall be an Estate-tail only for the Habendum qualifies the generall words precedent and with this agrees Perkins 35. b. and Co. lib. 8. 154. b. Althams case But it was answered and resolved by the whole Court that this is a Fee-tail with a Fee-simple expectant and they observed these Rules 1. That every Deed shall be taken most strong against him that made it 2. That every Deed shall be construed according to the intent of the maker so that all the parts may be effectuall if they can stand together with the Rules of Law 40 E. 3. 5 Percy saith that it is a Fee-simple 21 H. 6. 7. that it is an Estate-tail with a Fee-simple expectant Dyer 160. and Plow Paramore and Yardleys case the Law shall make an order of words where there is no order put by the parties and the words after the Remainder limited are Tenendum de Capitalibus Dominis feodi c. and therfore it ought to be a Fee-simple for if it were a Fee-tail he should hold of the Donor as it is in Co. lib. 6. Sir John Molins case and other Books And although the Warranty cannot inlarge an Estate yet this expresses his intent to passe a Fee-simple and the Law shall make a construction that the Fee-tail shall precede upon which the Fee-simple shall be expectant according to that which is before said in Paramore and Yardleys case Doderidge If the Habendum had been to a stranger the Premisses had been but a Tail as 7 H. 4. for otherwise the Habendum shall be void But if Land be given to one and his Heirs viz. In Tail or if the said Donce dye without Issue of his body this had been but an Estate-tail only because it immediatly checks and confirms the Premisses to which Haughton agreed Et adjournator The same Term in the same Court. Powels Case POwel an Vtter-Barister of the Temple and also Town-Clark of Plimoth brought an Action upon the Case against for these Words That he was a Puritan Knave a precise Knave a bribing Knave a corrupted Knave c. words The Defendant supposing that the Plaintiff had wronged him in the Court of Plimoth said that he was a Puritan Knave a precise Knave a bribing Knave a corrupted Knave and that he would make him answer for that which he had done in another place And after Verdict for the Plaintiff it was now moved in Arrest of Iudgment that the words were not actionable because he doth not scandalize him in his Profession by which he acquires his
35 E. Rot. 258. And Popham said further in this case that to erect an Hospitall by the name of an Hospitall in the County of S. or in the Bishopprick of B. and the like is not good because he is bound to a place too large and incertain But a Colledge erected in Accademia Cantabrig or Oxon. is good and sâ—me are so founded because it tends but to a particular place as a City Town c. King versus Bery and Palmer 2. IN an Ejectione firmae brought by William King against John Bery and William Palmer Defendants for two Messuages and certain Lands in Halstead in the County of Leicester upon a Demise alledged to be made by Dorothy Pool and Robert Smith the case upon a speciall Verdict was this The said Dorothy was Tenant for life of the said Tenants the Remainder over to the said Robert Smith and his Heirs and they being so seised made the Lease in the Declaration upon which the Action was brought And per curiam the Lease found by the Verdict doth not warrant the Lease alledged in the Declaration for although they joyned in the Demise yet during the life of the said Dorothy it is her Demise and not the Demise of the said Robert Smith but as his confirmation for that time for he hath nothing to do to meddle with the Land during the life of the said Dorothy but after the death of the said Dorothy then it shall be said to be the Domise of the said Robert Smith and not before because untill this time Smith hath nothing to do to meddle with the Land And in a more strong case If Tenant for life and he in the Reversion in Fee make a Gift in tail for the life of Tenant for life it shall be said to be his Gift but after his death it shall be said the Gift of him in the Reversion and if the Estate tail had expired during the life of the said Tenant for life he shall have the Land again in his former Estate and there shal be no forfeiture in the case because he in the Reversion of the immediate Estate of Inheritance had joyned in it and therfore hath dispensed with that which otherwise had been a meer forfeiture of the Estate for life wherby it was awarded by the Court that the Plaintif take nothing by his Bill in 33 34 Eliz. Rot. And the Judgment is entred Hill 34. Eliz. Ret. 72. 3. In this Term I hapned to see a Case agreed by the Iustices in 3. 4. Eliz. which was this If a man make a Lease of two Barns rendring Rent and for default of payment a Re-entry if the Tenant be at one of the Barns to pay the Rent and the Lessor at the other to demand the Rent and none be there to pay it that yet the Lessor cannot enter for the Condition broken because there was no default in the Tenant he being at one for it was not possible for him to be at both places together And upon this Case now remembred to the Iustices Popham Walmesley and Fennor said That perhaps also the Tenant had not money sufficient to have been ready to have paid it at either of the said places but it is sufficient for him to have and provide one Rent which cannot be at two places together And by the Case reported here also If Lands and Woods are demised together the Rent ought to be demanded at the Land and not the Woood because the Land is the more worthy thing and also more open then the Wood And therfore by the three Iustices aforesaid Rent ought not to be demanded in any private place of a Close as amongst Bushes in a Pit or the like nor in the open and most usuall passage therof as at a Stile Gate and the like 4. Vpon a Prohibition sued out of the Kings Bench the Case appeared to be this The late Lord Rich Father to the now Lord Rich devised to his Daughter for her advancement in marriage 1500. upon condition that she marry with the consent of certain friends and deviseth further that if his Goods and Chattels are not sufficient to pay his Debts and Legacies that then there shall be 200 l. a year of his Lands sold to supply it and dies making the now Lord Rich his Executor his Goods and Chattels not being sufficient to pay the Debts of the Testator as was averred the said Daughter married with a Husband against the will of those who were put in trust to give their assents and the Husband and the Wife sued in the Spirituall Court for the Legacy And it was surmised that they would not allow the proofs of the said now Lord Rich exhihited to prove the payment of the Debts of his Testator and further that they would charge him for the sale of the Land upon which matter the Prohibition was granted to the Delegates before whom the matter depended and now consultation was prayed in the case Vpon which it was affirmed by a Doctor of the Civill Law that they will allow the proofs for the payment of the Debts according to our Law and that the Legacy shall not be paid untill the Debs are satisfied But he said that by the Law if the Executor do not exhibit his Inventory but neglect it for a year or more that then if any omission or default be in the true value of the Inventory exhibited that then such on Executor for this default shall pay all the Legacies of his Testator of what value soever they are not respecting the Debts or the value of the Goods or Chattels how small soever the omission or default be in the Inventory And so he said was the case of the now Sir Richard S. who did not bring in the Inventory for four years after the death of the Testator and that in the Inventory exhibited the values of every thing were found to be too small and therfore to be charged by their Law albeit he hath not Goods and Chattels sufficient of the Testators To which it was answered that this was quite without reason for by such means every Subject of the Realm may be utterly defeated if he take upon him the charge of an Executorship And if this shall be admitted no man will take upon him the Execution of the Will of any and by such a means none will have their Wills performed which shall be too inconvenient And they said further that in as much as Debts are to be proved by the Common Law of the Realm those of the Ecclesiasticall Courts ought to admit in the proof therof such proofs as our Law allows and not according to the precisenesse of their Law And although by their Law such a Condition as before being annexed to a Legacy is void because that marriage oughr to be free without Coercion yet where we are to judge upon the point as we are here if the Execution happen to be charged because of the sale of Land and for
in execution in all Circuits That if a man taken for Felony be examined by a Justice of Peace it appeareth that the Felon is not bailable by the Law and yet the Justices commit him to Goal but as upon suspition of Felony not making mention for any cause for which he is not bailable wherby he is brought before another Justice of Peace not knowing of any matter why he ought not to be bailed wherupon they bail him these Justices ought to be fined by the Statute of 1 2. Phil. Mar. for they offend if they bail him who by the Statute of Westm 1. is not bailable and therfore they at their peril ought so to inform themselves before the bail taken of the matter that they may be well satisfied that such a one is bailable by Law and therfore observe well the Statute of Westm 1. cap. 18. who is bailable and who not by the Law And it seems that no Justice of Peace could have bailed any one for Felony before the Statute of 1 Rich. 3. cap. 3. which is made void by 3 H. 7. cap. 3. for before this he ought to have been bailed by the Sheriff or other Keeper of the Prison where he was in Ward or by the Constable and by no other Officer unlesse Justices of the Kings Bench Justices in Eyre or Justices of Goal-delivery Herbin versus Chard and others 2. IN Trespasse by William Herbin Plaintiff against Chard and others Defendants for a Trespasse made at Pynon Farm in Netherbury and Loder in the County of Dorset the Case upon the Demurrer appeared to be this The Lord Mordant was seised of the Farm in his Demesne as of Fee and so seised demised it to Philip Fernam Elizabeth his wife and Iohn Fernam the eldest Son of the said Philip for term of their lives and of the Survivor of them and the said Eliz. died after which the said Philip his Father demised his part of the Farm by his Deed indented dated 13. Mart. 32. Eliz. to Philip his Son and Toby Fernam his Son for eighty years immediatly after the death of the said Philip the Father if the said Iohn Fernam shal so long live with divers remainders over for years depending upon the life of the said Iohn after which the said Philip the Father died and Iohn survived him and demised the said Farm to the Plaintiff upon whom the Defendants entred in right of the said Philip and Toby and whether their entry were congeable was the question And it was moued by Goodridge of the Middle-Temple that the entry of the Defendant was not lawfull because the said John was now in by the Lessor and not by his joynt Companion And further he had no power to dispose therof beyond his own life for suppose that he makes a Lease therof for years and afterwards grant over his Estate to a stranger and dies the Lease for years is therby determined albeit his joynt Companion be yet living and that his Estate continues And yet he agreed that if had made a Lease for years to begin at a day to come as at Michaelmas following or the like that this had been good for it is an Interest in the Grantee to be granted over for the presumption that it might be executed in his life but in the other case there is not any possibility that he who hath not but for his life can demise it to begin after the Estate made to him is determined But on the other part it was moved that the Demise remains in force for the life of the said John for at the first every one had an interest for the life of the other also and therfore if one joynt-Ioynt-tenant for life make a Lease for years in possession and dies the Lease yet continues And Crook the younger alledged that it was adjudged at last Hartf Term If a man possessed of a Term for years in right of his Wife makes a Lease for years of the same Lands to begin after his death dies during the Term without other alteration of it and the Wife survives him that now the Lease made by the Husband is good and that the like case as this by the opinion of Clench and Walmsley was decreed to be good in the Chancery Arton versus Hare 3. IN a second deliverance between Francis Arton Plaintiff and Henry Hare Avowant the case appeared to be this William Cocksey Esquire was seised in his Demesne as of Fee of the Mannor of Wolverton in the County of Worcester and so seised in Octab. Mich. 7 Eliz. levied a Fine of the said Mannor to certain persons to the use of the said William and Alice his Wife and the Heirs of William untill a marriage had between Martin Croft and Anne Wigstone and after this marriage to the use of the said William and Alice his Wife and the Heirs of the body of the said William and for defualt of such Issue to the use of the said Martin Crofts and Anne and the Heirs Males of the body of the said Martin upon the body of the said Anne begotten untill the said Martin should go about to alien sell grant or give the said Mannor or any parcell therof or to suffer any Recovery or levy any Fine therof or make any discontinuance c. And after the Estate of the said Martin and Anne and of the Heirs Males of their bodies to the Premisses by any such attempts determined and finished then to the use of the said Anne for her life and after to the use of the Heirs Males of the body of the said Martin upon the body of the said Anne lawfully begotten and for default of such Issue to the use of the Heirs of the body of the said Martin and for default of such Issue to the use of Giles Croft brother of the said Martin and the Heirs Males of his body untill c. as before and after to the use of the Heirs of the body of the said Giles and for default of such Issue to the use of Edmund Crofts the third brother of the said Martin and of the Heirs Males of his body as is before limited to the said Giles with remainders over afterwards the marriage was had between the said Martin and Alice after which the said Martin and Giles died without Issue without any thing done by the said Martin to determine his Estate or by the said Giles to determine his Estate if any had been And it was agreed by all the Court that as this case is no remainder can enure over to the said Giles without an attempt precedent by the said Martin to determine his Estate because the Estate of Giles is not limited to begin but upon such an attempt precedent And in the same manner Edmund shall have nothing untill the Estate of Giles determine by some attempt made by him if the said Giles had an Estate because the Estate of Edmund depends upon the attempt made by Giles
Vse may be averred without Deed upon a Fine sur Render And all agreed that if there had been a Deed to have declared the purport of the Fine that the Fine shall not be taken to extend further then is comprised in the Deed. And what is the cause therof the Deed or the intent of the parties and none can say but that it is the intent of the parties and not the Deed and the intent may as well appear without the Deed as with it albeit it be not so conclusive by Parole as by Deed. And therfore suppose I have 100. acres of Land in a Close in D. and I. S. hath another 100. acres in the same Close and Town and I. S. hath a 100. acres of Land in the same Town out of this Close and my intent is to levy a Fine to I. S. of the whole Close by the name of 200. acres of Land with a Render as before and I levy it accordingly shall the Render enure to the Land which I. S. had in the same Town It is cleer that it shall not although it be without Deed why then shall the Fine here be taken to work rather to the Land called Karkian then to any other Lands which any other had in the same Towns when it appeareth plainly that it never was the intent of the parties that the Fine should extend to these Lands called Karkian and it was decreed in Chancery accordingly Hall versus Arrowsmith 4. IN the case between Hall and Arrowsmith it was agreed by the whole Court in the Kings Bench That if a Copyholder for life hath licence to make a Lease for three years if he shall live so long and he makes a Lease for three years without such a Limitation that yet this is no forfeiture of his Estate because the operation of Law makes such a Limitation to the Estate which he made to wit that it shall not continue but for his life and then such an express Limitation in the case where the Law it self makes it is but a meer trifle and yet if a Lessee for life makes a Lease for years and he in the Reversion confirm it it remains good after the death of the Tenant for life but this then shall be as if it had been made by him in the Reversion himself and shall be his Lease But if the Lease there had been made determinâ—ble upon the life of Tenant for life the confirmation therof by him in the Reversion will not help him after the death of him who was Tenant for life Causa patet But in the principall case if the Copyholder had had an Estate in Fee by Copy it had been a forfeiture of his Estate to make an absolute Lease because in that case he does more then he was licensed to do And they agreed that such a licence cannot be made to be void by a Condition subsequent to the execution therof to undo that which was once well executed But there may be a Condition precedent united to it because in such a case it is no licence untill the Condition performed but the licence before mentioned is not a condition all Licence but a Licence with a Limitation and therfore hath not been of force if the Limitation which the Law makes in this case had not been and the Limitation in Law shall be preferred before the Limitation in Deed where they work to one and the same effect and not different Arthur Johnsons Case 5. ARthur Johnson was possessed of a Term for years and so possessed assigned this over to Robert Waterhouse and John Waterhouse being Brothers to the Wife of the said Johnson to the use of the said Wife the said Johnson dies and makes his Wife his Executrix after which the said Wife takes Robert Witham to Husband who takes the Profits of the Land during the life of his said Wife the Wife dies Intestate her said Brothers being next of kin to the said Wife took administration as well of the Goods of the said Wife as of her first Husband And whether the said Waterhouses or the said Witham shall have this Lease or the use therof was the question in the Chancery and therupon put to the two chief Iustices upon which they and the chief Baron and all the other Iustices of Serjeants-Inne in Fleetstreet and Beamont also were cleer in opinion that the said Administrators had now as well the Interest as the Vse also of the said Term as well in Conscience as in Law and that they had the use as Administrators to the said Wife and that the said Witham shall not have it because it is as a thing in Action which the Administrators of the Wife alwaies shall have and not the Husband As if an Obligation had been made to the use of the Wife And this opinion was certified accordingly to the Lord Keeper of the great Seal of England and it was so decreed Taunton versus Barrey 6. IN an Ejectione firmae brought by Giles Taunton Plaintiff in the King Bench against Giles Barrey Defendant the Case was thus Iohn Coles Esquire made a Lease of the Lands in question to the Father of the said Barrey for divers years depending upon the life of the Lessee and of the said Defendant and of the Survivor of them upon condition that the said Father should not alien without the consent of the said Coles his heirs after which the said Father devised the Term to the said Defendant and died making his Executor who assented And the question upon this point found upon a speciall Verdict was whether upon the matter the Condition were broken and by the opinion of the whole Court adjudged that it was for in such a case he ought to have left it to his Executor without making any Devise of it for the Devise is an Alienation against him and therfore it was agreed that the Plaintiff shall recover Term 37 Eliz. Rot. between Roper and Roper Michaelmas Term 38 39. Eliz. Everets Case 1. THis Case was moved by the chief Iustice to the other chief Iustices at Serjeants-Inne in Fleetstreet concerning one Everet who before was attaint for stealing of a Horse reprieved after Iudgment and Indited again for stealing another Horse before this Attainder And the Vicar of Pelton in the County of Somerset was Indited as accessary before this Felony for the procurement of it And Everet being again Indited upon this last Inditement did not plead that he was formerly Indited of another Felony c. but acknowledged the Inditement wherby the Accessary was Arrained tried and found guilty and had his Iudgment also as the principall but the Execution of the Accessary was respited And now moved whether upon this matter it shall be fit to execute the Accessary the principall being executed And it seemed convenient to all the Iustices and Barons that he shall be executed and that the matter was cleer in this case because the principall did not take advantage of his
Proviso extends only to Iudgments originally commenced in Towns corporate and not to executions upon Iudgments given in superior Courts for then the Sheriff does execution as an Officer to these Courts And the Sheriff of the County is at as great pains as if he were Sheriff of another County and shall not be bound by the Proviso Whitlock Iustice was for the Plaintiff in both the points to wit that the Sheriff shall have 1 s. for every 20 s. of the first 100 l. and 6 d. for every 20 s. of the residue And by him the Sheriff may refuse to do execution untill the levying money be paid to him And for the second point the Sheriff of the County of the City is not within the Proviso but shall have the Fees by the Statute provided as well as the Sheriff of the County shall have for the words are generall and the exception goes to all Towns corporate and Cities but doth not say Cities which are Counties and therfore this Sheriff is within the benefit of this Law And in Michaelmas Term next following the case was moved again by Whitlock for the Plaintiff and he said that he would not speak to the second point because the Court had delivered their opinion that the Proviso in the Statute that this shall not extend to executions in Towns corporate it is to be intended of executions in Towns corporate upon Iudgments there given But for executions there upon Iudgments given in this Court or any other superior Court the Sheriff shall have such Fees as are limited by this Statute And the Court said to him that were agreed of it And as for the first point he conceived that the Sheriff shall have 12 d. for levying of every 20 s. of the first 100 l. and 6 d. of every pound more and this appears cleerly by the Letter of the Statute And the case in Mich. 19 Jac. in C. B. between Empson and Bathirst doth not make against it for the resolution of the said case was upon other matters The case being a man was bound in a Statute of 120 l. the Sheriff extends and before the Liberate takes double Bond of the party for payment of his Fees and afterwards brought Debt against the party who pleads the said matter in Bar and the Statute of 23 H. 6. cap. 10. And in the case were three points 1. Whether the Sheriff may take a double Bond for the payment of his Fees and it was resolved that the Bond was void for the Sheriff might have Debt upon the Statute for his Fees 2. Whether the Sheriff shall have his Fees before the Liberate and resolved that he shall not 3. Was this very question and two Iustices were against one that where the summ exceed 100 l. he shall have but 6 d. for levying of every 20 s of the first 100 l. But the Iudgment was given upon the other points All the Court seemed to be of opinion that he shall have 12 d. for every 20 s. of the first 100 l. and 6 d. for every 20 s. of the residue The same Term in the same Court. Awdeley versus Joye AWdeley being put out of the Town-Clarkship of Bedford moved for a Writ of Restitution to the place and it seemed to Doderidge Iustice that the Iustices of this Court have power to grant restitution in this case and he cited a case in 16 Eliz. in this Court where restitution was granted in such a case and 43 Eliz. by warrant of Fennor Iustice a Writ of Restitution was granted One who was Town Clark of Boston for life was made Alder-man and put out of his Clarkship and was restored This Court hath power not only in judiciall things but also in some things which are extrajudicial The A Writ of Restitution to a Town-Clark being ousted of his Office Major and Commonalty of Coventry displaced one of the Alder-men and he was restored And this thing is peculiar to this Court and is one of the flowers of it Crew chief Iustice doubted whether restitution could be made to Awdeley or no because the Office was granted to him in Reversion when it was expectant upon an Estate for life and when the Officer for life died Joye was elected and he said that all the said Writs remembred are where he had once possession Whitlock Iustice in the case of one Constable 10 Eliz. It was resolved that this Court hath power to grant restitution in such a case where he was put out of his Office And by Jones Iustice this Court hath power to grant Restitution and he remembred one Mittlecots case And Noy being of Counsell with Awdeley said that there are Presidents to prove this in the times of E. 2. E. 3. and H. 6. And it was said by the Iustices that they are the chief Conservators of the Peace within the Realm and therfore have power for the preservation of the Peace in such factious Towns to grant restitution The same Term in the same Court Dabborne versus Martin THomas Dabborne brought an action upon the case against Martin for Words Thou art a Knave of Record these words Thou art a Knave of Record and a forgering Knave And it was argued by Jermy for the Defendant that the words were not actionable for a Knave signifies a Male-child so that it is no more then to say Thou art a Male-child of Record And for forgering Knave the action will not lye for Forger is a generall word and may be applied to divers Trades as forgering Smith forgering Goldsmith and when he called him forgering Knave there was no communication of his Office 18 Jac. Sir William Brunskill brought an action upon the case and declared that he was well discended and was a Gentleman of the Chamber to Prince Henry and he brought an action for these words Thou art a Cosener and livest by cosenage and adjudged not actionable Co. lib. 4. 16. Action upon the case doth not lye for these words Thou art a corrupt man if there were no communication touching his Profession And it was argued for the Plaintiff that the words were actionable for it lyeth for these words Thou art an Out-putterer if they were spoken in Northumberland where they are understood but not here because they have no signification And the words here are speciall and shall have reference to his Office and shall have such an interpretation as is now used and now Knave hath no signification of Male-child Jones Iustice said that if one saith that such a one is a corrupt Iudge action lies or if one saith of a Clark that he is a forging Clark action lies And in 28 Eliz. the opinion of Iustice Fennor was that for these words Thou hast forged my Fathers Will action lies Crew said that he did not understand the word Forgering but for calling one Knave of Record action lies And Doderidge Iustice said that he never gave way to these actions upon the case for words And no opinion
Cleland brought a Writ of error against Baldock upon a Iudgement given in where the Plaintiff declared that the Intr. Hill 22. Iac Rot. 59â— Defendant in consideration that he would do all his commands honestly and truly for the space of a yeare assumed to pay him 10 l. and further declared that he had done all his honest and lawfull commands and this promise being found by verdict Iudgement was given against Doctor Cleland and thereupon he brought this Writ of error and Greene assigned two errors 1. The Assumpsit is that he shall doe all his commands honestly and truly and he hath declared that he hath done all his lawfull and honest commands and he may honest commands and yet not honestly 2. It is said that Jurator Assident dampna and it is not said occasione transgression predict and it is against all Presidents But Nota that there were these words ex hac parte opposita and therefore the exceptions were disallowed by the Court and the first Iudgement affirmed The same Term in the same Court. Secheverel versus Dale THis Case was sent out of Chancery to this Court â—o know the Law therein and in Trespas the case was this Henry Secheverell the Father seised in Fée levied a Fine to A. and B. in Fee to the use of himselfe for life absque impetitione vasti with power to cut and carry away the trees and to make Leases for 21 yeares or three lives the remainder to the use of John Secheverell his eldest Son for life without impeachment of waste with the same powers Henry the Father made a Lease to one under whom the Plaintiff claims for three lives rendring the ancient Rent excepting all the trees unlesse those which shall be for cropping lopping and fewell Henry the Father dyes John the Son in the next remainder cut certain trees Victorin Secheverell who clayms by the lease made by the Father brings trespas and two Questions were moved 1. Whether Lessee for life without impeachment of waste may make a Lease excepting the trees and it was objected by the Councel of the Plaintiff that he could not because this second Lease ariseth out of the first fine and out of the estate of the Conusor But the Court prima facie was of opinion that he might well make such a Lease with such an exception See Co. lib. 11. Lewys Bowls his Case and Doctor and Student lib. 1. cap. 1. and by Doderidge Iustice the Lease ariseth out of both the estates Jones Iustice suppose the Lessee absque impetitione vasti assigne over all his estate might he cut the trees and it was conceived that he might for by Doderidge he hath power to dispose of the trees as it was resolved in Lewys Bowls his case Jones he hath no propriety in the Trees untill they be cut Crew ch Justice Admit a Stranger cut the trees who shall have them By all the Court the Lessee without impeachment of waste shall have them 2. Point Tenant for life without impeachment of waste with power to cut and carry away the trees and make Leases for 21. years or three lives the remainder for life to J. S. without impeachment of waste c. Tenant for life makes a Lease for thrée lives and dyes whether he in remainder for life without impeachment of waste with power to cut the trées may cut the trées and take them during the Lease for thrée lives and the Court séemed to be of opinion that he might And Leving of Councell with the Plaintiff argued that when tenant for life without impeachment of waste with power to cut the trees and to make Leases for 21. years or three lives makes a Lease for thrée lives excepting the trées that this is a voyd exception because he hath no interest but a bare Authority 27. H. 6. Fitz. Wast 8. Statham tit Wast 1. makes this a Quaere which Statham was once the owner of the Land in question A man makes a Lease for life without impeachment of waste a Stranger cuts trées the Lessée brings trespas he shall recover no Damages for the value of the trees because the propriety belongs to him in the reversion he may dispose of them Quaere Dyer 284. Daunsley and Southwels Case Co. lib. 11. Lewys Bowles case that such a Lessee may take trées which are blown down and 3. H. 6. 45. Mich 41. and 42. Eliz. C. B. Leechford against Sanders in an Action of waste upon a Lease made to Sanders for life with a proviso that the Plaintiff might dispose of the trées during the estate and resolved that the Action lies not for notwithstanding this power the trées are demised to the Lessée also so here when the trées are excepted he hath no interest but only an authority 2. The exception is voyd for another reason because when such a Lessée makes such a Lease this is not his Lease but it hath its operation out of the originall fine and he who makes this hath but the nomination and therefore cannot adde a condition or exception to it And if the second Lease shall have its being out of the estate of the Lessee for life then there shall be an use upon an use as appears Co. lib. 1. 134. and that the Law will not allow 15. H. 7. and Co. Lib. 1. Albanyes Case If a man devise that his Executors shall fell his Land they cannot adde a condition or exception to this sale as an attornment upon a condition subsequent is voyd Co. lib. 2. Tookers case 3. This case may be resembled to the case of Copy-holds which is in Co. lib. 8. 63. b. in Swaynes Case If a Lord takes a Wife and afterwards grants Lands by Copy according to the custome and dyes his Wife shall not be endowed of this Land for albeit her title of Dower was before the Grant yet the title of Copi-hold which is the custome is elder then the title of Dower so in our case the title of the second Lessee is derived out of the estate of the Conuzées and therefore shall not be clogg'd with the Exceptions of Lessee for life without impeachment of waste 4. This priviledge to cut the trées is annexed to the estates and goes along with the estate and therefore shall not begin before the Stranger be in possession 3. E. 3. 44. 45. Idles case 28. H. 8. Dyer 10. And it may be resembled to the cases of 16. E. 4. and 27. H. 8. Tenant in taile sold the trées if he dyes before the Party takes them he shall never have them because he hath stayd out his time But it may be objected that upon such a Lease he may reserve a rent as it is in Whitlocks case Co. lib. 8. to which I will offer this difference Lessée for life with power to make Leases for thrée lives reserving rent makes a Lease for thrée lives reserving rent this reservation is good because it is but a Declaration of the Lease and of the rent
but if there were no such clause of reserving rent then I conceive it were otherwise But admitting all this were against me yet the justification of the Defendant is not good for by the exception out of the exception the Lessor cannot take the benefit of the bodies of the trées because he will thereby deprive the Lessée of the croppings and loppings c. as in 28. H 8. Dyer Maleverell and Spynkes case Mylward of Lincolnes Inne for the Defendant And first he conceived that the Lessée for life without impeachment of waste might dispose of the trées in the same manner as Tenant in fée might doe with this difference that the disposall thereof ought to be in his life time and so it is resolved in Lewys Bowles case Co. lib. 11. 46. 2. The second matter in the case is whether the Lessée for life without impeachment of waste c. hath only an authority or an interest in the trées and I conceive that he hath an interest for his power is to make Leases of it or of any part for 21. years or 3. lives and that the Conuzors shall be seized to the use of such Lessées now when he makes a Lease excepting the trées the trées are not demised so that he remains still tenant for life without impeachment of waste for the trees 3. Excepting all Timber-trées but for fencing cropping and lopping it hath béene objected that this exception hath no forme It is a generall rule that if a man makes a Grant and in the close thereof except all that which was granted before the exception is voyd and this appears by 34. Ass Pl. 11. A Will was granted salvo stagno molendini so here the last exception takes away all that which was granted before 38. H. 6. 38. in a Quare impedit 28. H. 8. Dyer 19. by Mountague the cropping and lopping of trées belong to the Lessee like to the Duke of Norfolks case in 12. H. 7. 25. and 13. H. 7. 13. and 18. E. 4. 14. and albeit every grant shall be taken most strongly against the Grantor yet it shall have a reasonable intendment for the benefit of the Grantor and this appeares by 7. E. 4. 22. 17. E. 3. 7. 9. E. 4. 2. 21. E. 3. 43. so here the Exception shall have a reasonable intendment that he shall onely have such loppings and croppings as shall be bestowed upon the Park and no other Doderidge Iustice I conceive that by the words without impeachment of waste he hath interest in the trees as long as the estate continues 2. That when he makes a lease by the second power given to him this is derived out of the Fine and shall be good against him in the remainder 3. Because he hath power to dispose of the trées I conceive that when he makes a Lease excepting the trees this is a good exception 24. Eliz. C. B. A man made a Lease for years now he hath the wast of the trees if he assign over his estate excepting the trées the exception is voyd but in our case the Lessée hath not parted with his whole estate 4. So the sole question is whether he in remainder may cut the trées during the estate of thrée lives made by Henry Secheverell and he conceived that he might and so concluded for the Defendant Jones Iustice agréed that the Lessee for life without impeachment of wast hath interest in the trées but this interest is concomitant with his estate and determinable with it 2. I conceive that the exception is good Such things which a man hath by the Law he cannot resign to himselfe upon his assignment as the cropping and lopping of trées as if tenant in taile after possibility c. who is dispunishable of wast by fréedome of the Law assign over his estate reserving the trees he cannot cut the trees but here the Lessee hath a larger liberty then the Law gives to him and he by vertue of this may give away the trees but I conceive that if he had assigned over all his estate then he could not have excepted the trees but here he hath not granted over all his estate for he hath a remainder and may have an estate in possession afterwards and upon this Lease for three lives hee may reserve a rent to himselfe 3. I conceive that this Lease is derived partly out of his owne estate and hee hath not the meere nomination and partly out of the first Fine and therefore such Lessees shall be subject to all charges made by the Tenant for life who made the Lease as Statutes Recognizances c. to wit during the life of the first tenant for life 4. When he dyes who made the said Lease for three lifes whether he in remainder may cut the Trees during the said Lease and he conceived yet not without some doubt that he had no power during the lives of the sayd Lessees Whitlock Iustice agreed with the rest so that it was agreed by all 1. That it is a good exception 2. That the second lease is drawn out of the Fine And the question now is whether he in remainder without impeachment of waste with power to cut the trees hath power to cut them during the lives of the said three Lessees and the Councell was commanded to speake to this point only upon another day The same Term in the same Court. Foster and Taylers Case ERror was brought upon a Iudgement given in C. B. and after the Record was certified into this Court the Common-pleas amended a rasure of the Record which was there and now Bramston Sergeant movâ—â— for the Def. that the Record might be amended here Jones Iustice I doubt whether an inferior Court can amend after the Record is certified here for then it is but a piece of Parchment with them Bramston It is resolved that it may in Blackamores case Co. lib. 8. Doderidge the doubt is whether it may be amended after error assigned in the same Court for this takes away the benefit of the Law from the Plaintiff in the Writ of error Jones at another day said that if in nullo est erratum had been pleaded it could not have beene amended And as it is it cannot be amended because now it is assigned for error and the Plaintiffe was once intitled to his Writ of error which shall not be taken away from him afterwards and in 11. Jac. there was such a case moved by Yelverton the Kings Solicitor and agreed that it could not be amended And Pasch 17. Jac. one Abbingtons case upon a rasure as our case is it was doubted whether it could be amended and by Broom Secondary in the said case it was amended Doderidge in this case it may be amended albeit it be after error brought because it is only the error of the Clerk and it is amendable although the error be assigned in the same point and so was the opinion of the whole Court and therefore it was amended The same
where the Plaintiff shews a speciall Title under the Possession of the Defendant As for example In trespasse for breaking of his Close the Defendant pleads that J. G. was seised of it in his Demesne as of fee and enfeoffed J. K. by virtue of which he was seised accordingly and so being seised enfeoffed the Defendant of it by which he was seised untill the Plaintiff claiming by calour of a Deed of Feoffment made by the sayd J. G. long before that he enfeoffed J. K. where nothing passed by the sayd Feoffment entred upon which the Defendant did re-enter here the Plaintiff may well traverse the Feoffment supposed to be made by the sayd J. G. to the sayd I. K. without making Title because that this Feoffment only destroies the Estate at will made by the sayd I. G. to the Plaintiff which being destroyed he cannot enter upon the Defendant albeit the Defendant cometh to the Land by Disseisin and not by the Feoffment of the sayd I. K. for the first Possession of the Defendant is a good Title in Trespasse against the Plaintiff if he cannot shew or maintain a Title Paramounâ— But the Feoffment of the sayd I. G. being traversed and found for him he hath by the acknowledgment of the Defendant himself a good Title against him by reason of the first Estate at will acknowledged by the Defendant to be to the Plaintiff and now not defeated But in the same case he cannot traverse the Feoffment supposed to be made to the sayd I. K. to the Defendant without an especiall Title made to himself for albeit that I. K. did not enfeoff the Defendant but that the Defendant disseised him or that he cometh to the Land by another means yet he hath a good Title against the Plaintiff by his first Possession not destroyed by any Title Paramount by any matter which appeareth by the Record upon which the Court is to adjudge and with this accord the opinion of 31 4. 1. That the materiall matter of the Bar ought alwaies to be traversed or other wise that which upon the pleading is become to be materiall and that which the Plaintiff traversed here to wit the Lease made by Wright to the Defendant is the materiall point of the Bar which destroyeth the Title Paramount acknowledged to the Plaintiff by the colour given in the Bar which is good without another Title made So note well the diversity where in pleading in Trespasse the first Possession is acknowledged in the Plaintiff by the Bar and where it appeareth by the pleading to be in the Defendant and where and by what matter the first Possession acknowledged in the Plaintiff by the Bar is avoided by the same Bar And upon this Iudgment was given for the Plaintiff as appeareth in 34. and 35. Eliz. Rol. Earl of Bedford versus Eliz. Anne Russell Mich. 34. and 35. Eliz. 2. IN tho Court of Wards the Case was thus between the now Earl of Bedford In the Court of Wards and Elizabeth and Anne the Daughters and Heirs of John late Lord Russell which was put ten times to all the Iustices to be resolved Francis late Earl of Bedford was seised of the Mannor of Baruake Chaldon c. in Commitatu Dorset in his Demesne as of see and so seised the fourth year of Queen Eliz. of it enfeoffed the Lord S. John of Bletsoe and others in see to the use of himself for forty years from the date of the sayd Deed and after to the use of the sayd John then his second Son and the Heirs Males of his body and for default of such Issue then to the use of the right Heirs of the sayd Earl the Feoffor for ever Afterwards Edward Lord Russell Son and Heir apparant to the sayd Earl dyed without Issue and after the sayd John Lord Russell dyed without Issue Male having Issue the sayd two Daughters afterwards to wit 27 Eliz. the sayd Francis Earl of Bedford by Indenture made between him and the Earl of Cumberland and others in consideration of the advancement of the Heirs Males of the body of the sayd Earl which by course of descent should or might succeed the sayd Earl in the name and dignity of the Earldome of Bedford and for the better establishment of his Lordships Mannors and Hereditaments in the name and blood of the sayd Earl covenanted and grantes with the sayd Covenantees that he and his Heirs hereafter shall stand seised of the sayd Mannors amongst others to the use of himself for life without impeachment of Waste and after his decease to the use of Francis the Lord Russell and the Heirs Males of his body for default of such Issue to the use of Sir William Russell Knight his youngest Son and the Heirs Males of his body with diverse Remainders over after which the sayd Francis Lord Russell tyed having Issue Edward the now Earl of Bedford and after this the sayd Francâ—s late Earl of Bedford dyed also and after the Daughters of the sayd John Lord Russell or the now Earl of Bedford shall have these Mannors of Barunke c. was the question and upon this it was argued by Cook Sollinton and others for the Daughters that an use at Common-law was but a confidence put in some to the benefit and behoof of others and that Conscience was to give remedy but for those for whose availe the confidence was and that was in this Case for the sayd Daughters which were the right Heirs to the sayd Francis late Earl of Bedford upon the first conveyance made 41 Eliz. for the confidence that he put in the Feoffees as to the profits that he himself was to have was but for the forty years and how can any other say that he shall have any other Estate when he himself saith that he will have it but for forty years and therefore in this case his right Heir shall take as a Purchasor by the intent of the Feoffor which hath power to make a disposition of the use at his pleasure and his pleasure as appeareth was to have it so and it is not as if the use had been limitted to be to himself for life with such a Remainder over in which Case the use of the Fee by the operation of Law ought to execuse in himself for the Free-hold which was in him before As where Land is given to one for life the Remainder to his right Heirs he hath a Fee-simple executed but here he shall have but an Estate for forty years precedent and that the Fee-simple cannot be executed by such a limitation made to the right Heirs but in case of an Estate for years only precedent such a limitation to his right Heirs afterwards is not good but in case of an use it is otherwise for it may remain to be executed to be an use in Esse where the right Heir shall be and therefore not to be resembled to an Estate made in Possession And an Vse is alwaies to be
guided according to that which may be collected to be the purpose and intent of the parties And therefore if a man make an Estate of his Land without limitation of any Vse or confidence the Law shall say that it is to his own use but if it be upon confidence then it shall be to the Vse of the party to whom it is made or according to the confidence which shâ—ll be absolute or according to that which is limitted which may alter that which otherwise shall be taken upon the generall confidence as 30 H. 6. Fitz. Devise If a man devise Lands to another in Fee he hath the use and Title of it but if it be limitted to his use for his life only the use of the Fee shall be to the Heir of the Devisor for by the limitation his intent shall be taken to be otherwise then it should be taken if this limitation had not been and in as much as in this case the Earl reserves to himself but the use for years it is evident that his intent never was to have the Fee to surrender this Term which perhaps he intended to be for the benefit of his will which shall be defeated contrary to his purpose if the Fee shall be also in him by the death of the sayd Iohn without Issue Male and therefore the sayd Daughters ought to have the Land And on the other part it was argued by Glanvil Serjeant and Egerton the Attorney Generall that this limitation made to the right Heirs is void in the same manner as if a man give Lands to another for life the Remainder to the right Heirs of the Feoffor in this case the Heir shall take by descent as a Reversion remaining to the Feoffor and not as a Remainder devested out of him for the ancient right priviledge the Estate which he may take and therfore he shall take it by descent and not by purchase for the name of right Heir is not a name of purchase betwixt the Ancestor and his heir because that doth instance that he happeneth to be heir he takes it by descent and then it comes too late to take by purchase And another reason that the Daughters shall not have it is because that when Sir Iohn Russell dies without Issue Male which Estate might have preserved the Remainder if it shall be a Remainder there was not any right heir of the sayd Francis Earl of Bedford to take this Remainder because that the sayd Earl survived him And therefore it is to bee resembled to this Case Land is given in Tail the Remainder to the right Heirs of I. G. the Donee dyes without Issue in the life of I. G. in this case albeit I. G. dyes afterwards having an heir yet this heir shall never have the Loud because he was not heir in Esse to take it when the Remainder fell and for the mean Estate for years this cannot preserve a Remainder no more then when Land is given for years the Remainder to the right heirs of I. G. this Remainder can never be good if I. G. be then living because such a Remainder cannot depend but upon a Free-hold precedent at least and therefore the Inheritance here shall go to the now Earl of Bedford by the second assurance And upon consideration of the Case and severall Confirmes had upon this amongst the Iudges and Barens it was at last resolved by all but Baron Clarke that the Daughters shall not have the Mannors in the County of Doâ—set but the now Earl of Bedford and principally upon this reason because there was nor right Heir to take as Purchasor where the mean Estate Taile was determined which was by the Lord Iohn without Issue Male for they agreed that the Remainder to the right Heirs if it be a Remainder cannot be preserved by the mean Estate for years for it ought to be a Free-hold at least which ought to preserve such a Remainder untill there be one to take it by name of Purchasor as right Heir And at this day they did not think there was any diversity between the Case of a Remainder in Possession limitted to the right heir of one and of a Remainder in use so limited over to another Mich. 34. and 35. Eliz In the Kings Bench. 3. IN Ejectione firmae upon speciall verdict the case was thus A man possessed of a Term of years in right of his wife made a Lease for years of the same Land to begin after his death which was the Lessor and afterwards he dyed and his wife survived him and the question was whether the wife shall have the Land after the death of the husband or the Lessee for if the husband had devised the same Land to an estranger yet the Wife shall have it and not the Devisee as it happened in the Case of Matthew Smith who made first such a Devise of a Term of his Wife and yet the Wife had it because that by the death of the husband before which the Devise did not take effect the wife had it in her first Right not altered in the life of her Husband but it was agreed in this case by all the Court that the Lessee shall have it during his Term for as the husband during his life might contract for the Land for the whole term which the wife had in it so might he do for any part of the term at his pleasure for if he may devise the Land for one and twenty years to begin presently he also may make it to begin at any time to come after his Death if the term of the Wife be not expired but for the Remainder of the term of the husband made no disposition during his life the Wife shall have it which by Popham this Case happened upon a specialll Verdict in the County of Somerset about 20 Eli. Where he and Sergeant Baber were Practisers in the Circuit there to wit the Lands were demised to husband and wife for their lives the Remainder to the Survivor of them for years the Husband granted over this term of years and dyed and the question was whether the Wife shall have the term of years or the Grantee and adjudged that the Wife shall have it and it was upon this reason because there was nothing in the one or the other to grant over untill there was a Survivor And the same Law had been if the Wife bad dyed after the Grant and the Husband had survived yet he shall have the term against his own Grant as if a Lease were made for Life the Remainder for years to him which first cometh to Pauls if A. grant this Term for years to another and afterwards A. is the first which commeth to Pauls yet the Grantee shall not have this Term because it was not in A. by any means neither in Interest nor otherwise untill he came to Pauls As if a man make a Lease for life the Remainder to the Right heirs of J. S. J. S. hath
that it shall be then holden as if no Adjournment had been the Essâ—ines had been the first day of Tres Trin. and the full Term had not been untill the fourth day which was the last day of the Term quod nota and so it was of the Adjournment which hapned first at Westminster and afterwards at Hertford from Michaelmas Term now last past Michaelmas Term 35 and 36 Eliz. Gravenor versus Brook and others 1. IN an Ejectione firmae by Edward Gravenor Plaintiff against Richard Brook and others Defendants the case appeared to be this Henry Hall was seised in his Demesne as of Fee according to the custom of the Mannor of A. in the County of D. of certain customary Tenements holden of the said Mannor called Fairchildes and Preachers c. In the third year of Henry the 8th before which time the customary Tenements of the said Mannor had alwaies been used to be granted by Copy of Court Roll of the said Mannor in Fee-simple or for life or years but never in Fee-tail but then the said Henry Hall surrendred his said Copy-hold Land to the use of Joane his eldest Daughter for her life the remainder to John Gravenor the eldest Son of the said Joane and to the Heirs of his body the Remainder to Henry Gravenor her other Son and the Heirs of his body the Remainder to the right Heirs of the said Henry Hall for ever wherupon in 3 H. 8. at the Court then there holden a grant was made by Copy of Court Roll accordingly and Seisin given to the said Joane by the Lord accordingly Henry Hall died having Issue the said Joane and one Elizabeth and at the Court holden within the said Mannor 4 H. 8. the death of the said Henry Hall was presented by the Homage and that the said Daughters were his Heirs and that the Surrender made as before was void because it was not used within the said Mannor to make Surrenders of Estates tails and therupon the said Homage made division of the said Land and limited Fairchilds for the purparty of the said Joane and Preachers for the purparty of the said Elizabeth and Seisin was granted to them accordingly Elizabeth died seised of her said part after which 33 H. 8. Margaret her Daughter was found Heir to her and admitted Tenant to this part after which Joane dyed seised of the said Tenements as the Law will And after the said Margaret takes to Husband one John Adye who with his said wife surrendred his said part to the use of the said John Adye and of his said wife and of their Heirs and afterwards the said Margaret died without Issue and the said John Adye held the part of his said wife and surrendred it to the use of the said Richard Brook and of one John North and their Heirs who were admitted accordingly after which the said John Gravenor died without Issue and now the said Henry Gravenor was sole Heirs to him and also to the said Henry Hall who had Issue Edward Gravenor and dyed the said Edward entred into the said Lands called Preachers and did let it to the Plaintiff upon whom the said Richard Brook and the other Defendants did re-enter and eject him And all this appeareth upon a speciall Verdict And by Clench and Gawdy an Estate tail cannot be of Copyhold Land unlesse it be in case where it hath been used for the Statute of Donis conditionalibus shall not enure to such customary Lands but to Lands which are at common Law and therfore an Estate tail cannot be of these customary Lands but in case where it hath been used time out of mind and they said that so it hath been lately taken in the Common Bench But they said that the first remainder limited to the said John Gravenor here upon the death of the said John was a good Fee-simple conditional which is well warrantes by the custom to demise in Fee for that which by custom may be demised of an Estate in Fee absolute may also be demised of a Fee-simple conditionall or upon any other limitation as if I. S. hath so long Issue of his body and the like but in such a case no Remainder can be limited over for one Fee cannot remain over upon another and therfore the Remainder to the said Henry was void But they said that for all the life of the said John Gravenor nothing was in the said Elizabeth which could descend from her to the said Margaret her Daughter or that might be surrendred by the said Margaret and her Husband and therfore the said Margaret dying without Issue in the life time of the said John Gravenor who had the Fee-simple conditionall nothing was done which might hinder the said Edward Son to the said Henry Gravenor of his Entry and therfore the said Plaintiff ought to have his Iudgment to recover for they took no regard to that which the Homage did 4th year of Hen. 8. But Fennor and Popham held that an Estate tail is wrought out of Copy-hold Land by the equity of the Statute of Donis conditionalibus for otherwise it cannot be that there can be any Estate tail of Copyhold Land for by usage it cannot be maintained because that no Estate tail was known in Law before this Statute but all were Fee-simple and after this Statute it cannot be by usage because this is within the time of limitation after which an usage cannot make a prescription as appeareth 22 23 Eliz. in Dyer And by 8 Eliz. a Custom cannot be made after Westm 2. And what Estates are of Copyhold land appeareth expresly by Littleton in his Chapter of Tenant by Copyhold c. And in Brook Title Tenant by Copyhold c. 15 H. 8. In both which it appeareth that a Plaint lyeth in Copyhold Land in the nature of a Formedon in the Descender at common Law and this could not be before the Statute of Donis conditionalibus for such Land because that before that Statute there was not any Formedon in the Descender at common Law and therfore the Statute helps them for their remedy for intailed Land which is customary by equity Add if the Action shall be given by equity for this Land why shall not the Statute by the same equity work to make an Estate intail also of this nature of the Land We see no reason to the contrary and if a man will well mark the words of the Statute of Westm 2. cap. 1. he shall well perceive that the Formedon in Descender was not before this Statute which wills that in a new case a new remedy may be given and therupon sets the form of a Formedon in Descender But as to the Formedon in the Reverter it is then said that it is used enough in Chancery and by Fitzherbert in his Natura brevium the Formedon in the Descender is founded upon this Statute and was not at Common Law before And the reason is because these Copyholds are now become by usage to be
such Estates that the Law allows them to be good against the Lords themselves they performing their Customs and Services and therfore are more commonly guided by the guides and rules of the common Law and therfore as appeareth in Dyer Tr. 12. Eliz. Possessio fratris of such an Estate facit sororem esse haeredem And to say that Estates of Copyhold Land are not warranted but by custom and every Custom lies in Vsage and without Vsage a Custom cannot be is true but in the Vsage of the greater the lesser is alwaies implyed As by Vsage three lives have been alwaies granted by Copy of Court Roll but never within memory two or one alone yet the grant of one or two lives only is warranted by this Custom for the use of the greater number warrants the lesser number of lives but not è converso And so Fee-simples upon a Limitation or Estates in tail are warranted by the equity of the Statute because they are lesser Estates then are warranted by the Custom and these lesser are implyed as before in the greater and none will doubt but that in this case the Lord may make a Demise for life the Remainder over in Fee and it is well warranted by the Custom and therfore it seems to them that it is a good Estate tail to John Gravenor and a good Remainder over to Henry his Brother and if so it follows that the Plaintiff hath a good Title to the Land and that Iudgment ought to be given for him And for the dying seised of Elizabeth they did not regard it for she cannot dye seised of it as a Copyholder for she had no right to be Copyholder of it And by the dying seised of a Copyholder at common Law it shall be no prejudice to him who hath right for he may enter But here in as much as she cometh in by admittance of the Lord at the Court her Occupation cannot be fortious to him and therfore no descent at common Law by her dying seised for it was but as an Occupation at Will But if it shall not be an Estate tail in John Gravenor as they conceive strongly it is yet for the other causes alledged by Gawdy and Clench Iudgment ought to be given for the Plaintiff and the Remainder which is not good shall not prejudice the Fee-simple conditionall granted to John which is no more then if the Surrender had been to the use of Iohn Gravenor and his Heirs the Remainder over because that we as Iudges see that this cannot be good by Law and therfore not to be compared to the case where the Custom warrants but one life and the Lord grants two joyntly or successively there both the one and the other is void And this is true because the custom is the cause that it was void and not the Law and also it is a larger Estate then the Custom warrants which is not here and upon this Iudgment was given that the Plaintiff shall recover And by Popham it hath been used and that upon good advice in some Maâ—nors to bar such Estates tails by a common Recovery prosecuted in the Lords Court upon a Plaint in nature of a Writ of Entry in the Post 2. JUlius Cesar Iudge of the Admiralty Court brought an Action upon the Case for a Slander against Philip Curtine a Merchant-stranger for saying that the said Cesar had given a corrupt Sentence And upon not guilty pleaded and 200. marks Damages given it was alledged in arrest of Iudgment where it was tryed by Nisi prius at the Guildhall by a partiall Inquest because that upon the default of strangers one being challenged and tryed out a Tales was awarded De circumstantibus by the Iustice of Nisi prius wheras as was alledged a Tale could not have been granted in this case for the Statute of 35 H. 8 cap. 6. which give the Tales is to be intended but of commontryals of English for the Statute speaks at the beginning but of such Iuries which by the Law eught to have 40 s. of Free-hold and wills that in such cases the Venire facias ought to have this clause Quorum quilibet habeat 40 s. in terris c. which cannot be intended of Aliens which cannot have Free-hold And it goes further that upon default of Iurors the Iustices have authority at the Prayer of the Plaintiff or Defendant to command the Sheriff or other Minister to whom it appertaineth to make a return of such other able persons of the said County then present at the same Assises or Nisi prius which shall make a full Iury c. which cannot be intended of Aliens but of Subjects and therfore shall be of tryals which are onely of English and not of this Inquest which was part of Aliens And further the Tales was awarded only of Aliens as was alledged on the Defendants part but in this point it was a mistake for the Tales was awarded generally de circumstantibus which ought alwaies to be of such as the principall Pannell was But Per Curiam the exceptions were disallowed for albeit the Statute is as hath been said yet when the Statute comes to this clause which gives that a Tales may be granted by the Iustices of Nisi prius and is generally referred to the former part of the Act for it is added Furthermore be it enacted that upon every first Writ of Habeas Corpora or Distringas with a Nisi prius c. the Sheriff c. shall return upon every Juror 5 s. Issues at the least c which is generall of all And then it goes further And wills that in every such Writ oâ— Habeas Corpora or Distringas with a Nisi prius where a full Jury doth not appear before the Justices of Assise or Nisi prius that they have power to command the Sheriff or other Minister to whom it appertains to nominate such other persons as before which is generall in all places where a Nisi prius is granted and therfore this is not excepted neither by the Letter nor intent of the Law And where it is said such persons by it is to be intended such as the first which shall be of Aliens as well as English where the case requires it for expedition was as requisite in cases for or against them as if it were between other persons And Aliens may well be of the County or place where the Nisi prius is to be taken and may be there for although an Alien cannot purchâ—se Land of an Estate of Free-hold within the Realm yet he may have a house for habitation within it for the time that he is there albeit he be no Denison but be to remain there for Merchandise or the like And by Gawdy where the default was only of strangers the Tales might have been awarded only of Aliens as where a thing is to be tryed by Inquest within two Counties and those of the one County appear but not those of the other the
took other Hay of his own to wit the Plaintiff and mixed it with the Defendants Hay after which the Defendant took and carried away both the one and the other that was intermired upon which the Action was bought and by all the Court cleerly the Defendant shall not be guilty for any part of the Hay for by the intermirture which was his own act the Defendant shall not be prejudiced as the case is in taking the Hay And now the Plaintiff cannot say which part of the Hay is his because the one cannot be known from the other and therfore the whole shall go to him who hath the property in it with which it is intermired as if a man take my Garment and Embroider it with Silk or Gold or the like I may take back my Garment But if I take the Silk from you and with this face or embroider my Garment you shall not take my Garment for your Silk which is in it but are put to she Action for taking of the Silk from you So here if the Plaintiff had taken the Defendants Hay and carried it to his house or otherwise and there intermired it with the Plaintiffs Hay there the Desendant cannot take back his Hay but is put to his Action against the Plaintiff for taking his Hay The difference appeareth and at the same day at Serjeants Inne in Fleetstreet the difference was agreed by Anderson Peâ—iam and other Iustices there and this case was put by Anderson It a Goldsmith be melting of Gold in a Pot and as he is melting it I will cast Gold of mine into the Pot which is melted together with the other Gold I have no remedy for my Gold but have lost it Bullock versus Dibler 3. IN an Ejectione firmae between Edward Bullock Plaintiff and John Dibler Deâ—endant the case appeared to be this A man was seised of a Copyhold Tenâ—â—ent pâ—rcell of the Mannor of Stratfield Mortimer the County of Berks in right of his wife in his Demesne as of Fee and surrendred this Copy bold Tenement by himself without his wife to the use of a stranger in Fee who was 〈◊〉 by the Loâ—â— accordingly the Husband dies the wife dies the Heir of the wife without any admittance enters upon the stranger and makes a Lease for a year to the Plaintiff upon whom the Defendant in right of him to whom the Surrender was made re-enters and adiudged that the Plaintiff ought to recover and that the surrender of the Husband was not as a discontinuance against the wise to put the Heir to his Plaint in nature of a Sur Cui in vita for a Discontinuance shall not be by a Deed of Feement only but by it with the Livery ensuing wherby the entire Fee-simple is given what Estate so ever the Feoffor had by reason of the Livery where by Deed of Grant nothing passed but that which the party might lawfully grant And here it shall be taken as if the Grant had been made by the Husband which passed but his Estate to wit that which he might lawfully grant without prejudice to his wife But yet there is this diversity between a surrender of an Estate for life and a surrender of an Estate in Fee to the use of a scranger to wit that by the one the Estate drowned in the Lord by the surrender and by the other it is not drowned in the Lord but is transferred to him to whom it was made upon which he is admitted to it otherwise in the last case it returns to him who surrendred and then upon the admittance he is in the Per by him who surrendred and not by the Lord or by the Surrender made by Tenant for life he to whose use it is made ought to take it of the Lord and he is there in by him and not by him who surrendred And this is the common difference betwixt Customary Estates for lives and Customary Estates of Inheritance And the Plaint of Cui in vita is given where recovery by default is against the husband and wife and not upon the surrender of the husband for suppose the husband had surrendred meerly to the Lord himself yet the wife might have entred after the death of the husband because the surrender goes but to the Estate which the husband might lawfully part with and therfore rather to be resembled to a Grant then to a Feoffment And notwithstanding that he was not admitted yet he might enter and take the profits and make a Lease according to the custom or bring an Action of Trespasse against him who disturbes him But if the Lord require his Fine or his Services and the Heir refuse to do them this may be a forfeiture of his Copyhold But untill lawfull Seisin made by the Lord because it belongeth to him the Heir may intermeddle with the Possession albeit he be not admitted by the Lord where it is an Estate of Iuheritance by the Custom And in this Term also in another case in the same Court it was adjudged that an Infant who surrenders his Copyhold Land within age may enter at his full age without being put any Suit for it And the first case was very well argued by one Brock a Puny utter Barister of the Inner-Temple this Term for the Plaintiff And it was the first Demur that he argued in Court Forth versus Holborough 4. IN an Action of Debt upon an Obligation of 200. marks brought by Robert Forth Doctor of Law and Mary his Wife as Executrix to Doctor Drewry against Richard Holborough the Case upon Demurrer appeared to be this to wit That the said Dr. Drewry was seised in his Demesne as of Fee of the Suit of the Mannor of Goldingham Hall in the County of Essex and so seised the last day of Novemb. 27 Eliz. demised it to the said Richard Holborough for 17. years from the said last day of Novemb. wherby the Defendâ—nt antred into it the next day and was therof possessed accordingly and so possessed the last day of Novemb. 28 Eliz. entred into an Obligation to the said Dr. Drewry with condition that if he his Heirs Executors Administrators and Assignes or any of them should well and truly pay or cause to be paid to Dorothy Goldingham widow or her Assigns at the Mannor-house of Goldingham Hall in the County of Essex for the Term of 17. years from the Feast of S. Michael the Arch-angel then last past or an Annuity or annuall Rent of 20. marks of lawfull English money at the Feast of the Annunciation of our Lady and S. Michael the Arch-angel by equall portions if the said Dororhy shall so long live and the said Richard Holborough or his Assigns or any other claiming by or under the said Richard or his Assigns shal or may so long occupy or enjoy the said Scite of the Mannor of Goldingham Hall that then the Obligation shall be void after which untill the 9th day of May 29 Eliz. the Defendant enjoyed the said Scite
to the use of Dennis May his Son and Heir apparant and his Heirs upon condition that the said Dennis and his Heirs should pay to one Petronell Martin for his life an annuall Rent of 10 l. which the said Thomas had before granted to the said Petronell to begin upon the death of the said Thomas And upon condition also that the said Thomas upon the payment of 10 s. by him to the said Feoffees or any of them c. might re-enter After which the said Thomas May and Dennis by their Deed dated 30. May 19 Eliz. granted a Rent-charge out of the said Mannor of 20 l. a year to one Anne May for her life after which the said Thomas May paid the said 10 s. to the said Feoffees in performance of the Condition aforesaid and therupon re-entred into the Land and enfeoffed a stranger And whether by this the Rent were defeated was the question And it was mooved by Coke Attorney-generall that it was not but that in respect that he joyned in the part it shall enure against the said Thomas by way of confirmation which shall bind him as well against this matter of Condition as it shall do against any Right which the said Thomas otherwise had And therfoâ—e by Littleton If a Disseisor make a Lease for years or grant a Rent-charge and the Disseisor confirm them and afterwards re-enters albeit Lit. there makes a Quaere of it yet Cook said That the Disseisor should not avoid the Charge or Lease which was granted by the whole Court And by him the opinion is in P. 11. H. 7. 21. If Tenant in Tail makes a Feoffment to his own use upon Condition and afterwards is bound in a Statute upon which Execution is sued and afterwards he re-enter for the Condition broken he shall not avoid the Execution no more the Rent here Fennor agreed with Cook and said further That in as much as every one who hath Title and Interest have joyned in the Grant it remains perpetually good And therfore if a Parson at Common Law had granted a Rent-charge out of his Rectory being confirmed by the Patron and Ordinary it shall be good in perpetuity and yet the Parson alone could not have charged it and the Patron and Ordinary have no Interest to charge it but in as much as all who have to intermeddle therin are parties to it or have given their assent to it it sufficeth Gawdy was of the same opinion and said That there is no Land but by some means or other it might be charged and therfore if Tenant for life grant a Rent-charge in Fee and he in the Reversion confirm the Grant per Littleton the Grant is good in property so here To which Clench also assented but Popham said That by the entry for the Condition the Charge is defeated And therfore we are to consider upon the ground of Littleton in his Chapter of Confirmation to what effect a Confirmation shall enure and this is to bind the right of him who makes the Confirmation but not to alter the nature of the Estate of him to whom the Confirmation is made And therfore in the case of a grant of a Rent-charge by the Disseisor which is confirmed by the Demisee the reason why the Confirmation shall make this good is because that as the Disseisee hath right to defeat the right and the Estate of the Disseisor by his Regresse in the same manner hath he right therby to avoid a Charge or a Lease granted by the Disseisor which Right for the time may be bound by his confirmation But when a man hath an Estate upon condition although the Feoffor or his Heirs confirm this Estate yet by this the Estate is not altered as to the Condition but it alwaies remaineth and therfore Nihil operatur by such a confirmation to prejudice the Condition And so there is a great diversity when hewho confirmeth hath right to the Land and where but a Condition in the Land And by him if a Feoffee upon condition make a Feoffment over or a Lease for life or years every one of these have their Estates subject to the Condition and therfore by a Confirmation made to them none can be excluded from the Condition And the same reason is in case of a Rent granted by a Feoffor upon Condition it is also subject to the Condition and therfore not excluded from it by the Confirmation as it shall be in case of a Right And to prove this diversity suppose there be Grand-father Father and Son the Father disseise the Grand-father and makes a Feoffment upon Condition and dies after which the Grand-father dies now the Son confirms the Estate of the Feoffee by this he hath excluded himself from the Right which descended to him by his Grand-father but not to the Condition which descended to him from his Father And of this opinion were Anderson and other Iustices at Serjeants-Inn in Fleetstreet for the principall Case upon the Case moved there by Popham this Term And as the case is it would have made a good question upon the Statute of Fraudulent Conveyances if the Avowry had been made as by the grant of Thomas May in as much as the Estate made to the use of Dennis was defeasable at the pleasure of the said Thomas in as much as it was made by the Tenant of the Land as well as by him who made the Conveyance which is to be judged fraudulent upon the Statute But this as the pleading was cannot come in question in this case And afterwards by the opinion of other three Iudges Iudgment was given that the Grant should bind the said Thomas May and his Feoffees after him notwithstanding his regresse made by the Condition in as much as the Grant of the said Thomas shall enure to the Grantee by way of confirmation And by Gawdy If a Feoffee upon Condition make a Feoffment over and the first Feoffor confirm the Estate of the last Feoffee he shall hold the Land discharged of the Condition because his Feoffment was made absolutely without any Condition expressed in his Feoffment But Popham denied this as it appeareth by Littleton Tit. Descents because he hath his Estate subject to the same Condition and in the same manner as his Feoffor hath it into whomsoever hands it hapneth to come and therfore the Confirmation shall not discharge the Condition but is only to bind the right of him who made it in the possession of him to whom it is made but not upon Condition Morgans Case 7. RObert Morgan Esquire being seised in his Demesne as of Fee of certain Lands called Wanster Tenements in Socage having Issue John his eldest Son Christopher his second Son and William his youngest Son by his last Will in writing demised to the said Christopher and William thus viz. Ioyntly and severally for their lives so that neither of them stall alienate the Lands and if they do that they shall remain to his Heirs Robert the Father
wit the 6th day of July in the same 6th year by his Deed of the same date the said Christopher enfeoffed the said Sir John Chichester and his Heirs of the said Mannor and by the same Deed warranted it for him and his Heirs to the said Sir John Chichester and his Heirs wherupon the said Sir John Chichester entred into the said Mannor after which to wit the first day of October 12 Eliz. the said Christopher died after which the 7th day of November 13 Eliz. the said Stretchley Chudleigh died without Issue of his body And after the death of the said Sir Richard Chudleigh to wit the 6th day of September 7 Eliz. the said Sir John Chichester enfeoffed one Philip Chichester and his Heirs of the said Mannor to the use of the said Philip and his Heirs And the said Close being Copyhold and Customary Land of the said Mannor demisable by the Lord of the same Mannor or his Steward for the time being for life or lives by Copy of Court-roll according to the custom of the said Mannor The said Philip at a Court holden at the said Mannor for the said Mannor the 8th day of December 15 Eliz. by Copy of Court-roll granted the said Close to the said John Frain for Term of his life according to the custom of the said Mannor after which to wit the 11th day of March 28 Eliz. the said John Chudleigh being now Heir to the said Christopher enfeoffed the said William Dillon of the said Mannor to have and to hold to him and his Heirs to the use of the said William and his Heirs for ever wherby he entred and was seised untill the said John Fraine entred into the said Close upon him the 8th day of February 30 Eliz. upon which entry of the said Fraine this Action is brought And for difficulty of the case it was adjourned into the Exchequer Chamber before all the Iustices and Barons of the Exchequer And there it was agreed by all that a Warranty descending upon an Infant shall not bind him in case that the entry of the Infant be lawfull into the Land to which the Warranty is united But the Infant ought in such a case to look well that he do not suffer a descent of the Land after his full age before he hath made his re-entry for then the Warranty when he is to have an Action for the Land shall bind him And they agreed also that a Copyhold granted by a Disseisor or any other who hath the Mannor of which it is parcel by wrong shall be avoided by the Disseisee or any other who hath right to the Mannor by his entry or recovery of the Mannor And so by Popham it was agreed by the Iustices in the case of the Manner of Hasselbury Brian in the County of Dorset between Henry late Earl of Arundell and Henry late Earl of Northumberland but then he said that it was agreed that admittance upon surrenders of Copyholders in Fee to the use of another or if an Heir in case of a Descent of a Copyhold were good being made by a Disseisor of a Mannor or any other who hath it by Tort because these are acts of necessity and for the benefit of a stranger to wit of him who is to have the Land by the surrender or of the Heir And also Grants made by Copy by the Feoffee upon condition of a Mannor before the Condition broken are good because he was lawfull Dominus pro tempore And for the matter upon the Statute of 27 H. 8. what shall become of this future use â—imited to the first second and other Issues Males not in Esse at the time of the Feoffment Ewens Owen Bateman and Fennor said That an Use at Common Law is Use what it is no other then a confidence which one person puts in another for a confidence cannot be in Land or other dead thing but ought alwaies to be in such a thing which hath understanding of the trust put in him which cannot be no other then such a one who hâ—th reason and understanding to perform what the other hath committed to him which confidence shall bind but in privity and yet the confidence is in respect of the Land but every one who hath the Land is not bound to the confidence but in privity shall be said to be in the Heir and the Feoffee who hath knowledge of the confidence and in him who cometh to the Land by Feoffâ—ent without consideration albeit he hath no knowledge therof and yet every Feoffee is not bound although he hath knowledge of the confidence as an Alien Person Attaint and the like not the King he shall not be seised to anothers use because he is not compellable to perform the confidence nor a Corporation because it is a dead body although it consist of naturall persons and in this dead body a confidence cannot be put but in bodies naturall And this was the Common Law before the Statute of 27 H. 8. Then the Letter of the Statute is not to execute any Vse before that it hapneth to be an Vse in Esse for the words are Where any person is seised to the use of any other person that in such a case he who hath the Vse shall have the same Estate in the Land which he had before in the Vse Ergo by the very letter of the Law he ought to have an Estate in the Vse and there ought to be a person to have the Vse before the Statute intends to execute any possession to the Vse for the words are expresse that in every such case he shall have it therfore not another And therfore the Statute had purpose to execute the Vses in possession Reversion or Remainder presently upon the conveyance made to the Vses But for the future Vses which were to be raised at a time to come upon any contingent as to the Infants here not being then born the Statute never intended to execute such Vses untill they happen to have their beeing and in the mean time to leave them as they were at Common Law without medling with or altering of them in any manner untill this time and if before this time the root out of which these contingent Vses ought to spring be defeated the Vse for this is utterly destroyed and shall never afterwards have his being as here by the Feoffment made by the said Sir John Saintleger and his Co-feoffees who then were but as Tenements pur auter vie to wit for the life of Christopher and which was a forfeiture of their Estate and for which Oliver Chudleigh might have entred it being before that the said Strechley or John Chudleigh were born the privity of them from Estate being the root out of which this future use ought to have risen is gone and destroyed and therfore the Contingent Vses utterly therby overthrown As if before the Statute of 27 H. 8. Tenant for life had been the remainder over in Fee to an Vse
to be given for the Plaintiff Gawdy conceived that it is executed by the intent but not by the letter of the Statute for the purpose was to remove all the Estate from the Feoffee and to put it in Cestay que use wholly to wit in possessions to the Vses which were in Esse and in aleyance as to the Vses which were to come and contingent and now by the same Statute the contingency of the possession shal go in licence of the contingent Vse and now an Vse limited to one for life with Remainder over to the Heirs of the body of I. S. or to the first Son of I. S. shall be in the same manner as if Land at this day had been letten to one for life with Remainder over to the Heirs of the body of I. S. or to the first Son of I. S. and not otherwise for the quality which he had in the Vse the same by the very letter of the Statute he shall now have in the possession and Estate of the Land and the Statute is not to undo any Vse but to transfer an Estate in the Land to the Vse But he said That by the Feoffment made to Christopher the Contingent remainder which was devested in Stretchly and Iohn Chudleigh depending upon the Estate which Sir Iohn Saintleger and his Co-feoffees had for the life of Christopher is utterly gone and destroyed in the same manner as where a Lease is made for life the remainder to the right Heirs of I. S. or to the Heirs of the body of I S. if the Tenant for life dies or aliens wherby he makes a forfeiture and determines his Estate in the life of the said I. S. his Heir shall never have the Land by the remainder afterwards because he was not in Esse as an Heir at the time when the Estate ended for there cannot be a remainder without a particular Estate neither can it stand or be preserved And as in this case without a particular Estate of Free-hold a Remainder cannot be no more in the case now in question being now become by means of the Statute as if it had been an Estate executed in possession and for this cause only he conceived that Judgment ought to be given against the Plaintiff And Clench agreed with this opinion in all and both of them agreed if there be none to take the Vse according to the limitation at the time when it falleth to be in Possessions that he shall never take it although it happen to be in Esse afterwards Clark said that Uses were not at Common Law but grew by sufferance of time as appeareth by the words of the Statute it self and the mischief and subtlety which was before this Statute was not in the Fine Feoffment or other Assurances of Land but by means oâ— the Uses limitted therupon contrary to that which was used in the ancient course oâ— the Common Law and the Statute was made to reduce the Common Law to its ancient force and course and therfore ought to conceive such a construction as may agree with the purpose of the makers of the Statute and therfore the best construction of this Statute is not to execute other manner of Uses but in some cases to extinguish them as where it is such as will make the case in as ill or worse condition then it was before the making of the Statute It hath been agreed by all that the Statute doth not execute any Use which was suspended at the time of the making of the Statute as by reason of a Disseisor or the like hapning before and if it doth not execute the Use which is in suspence for the right which he had in the Use how can it execute the Use which hath not any being for in such cases of Infants not born as here untill they be in Rerum natura the Use cannot have any being And in the same manner in all cases where the Vse is not to rise but upon a future contingent And what good shall this Statute do if these leaping Vses shall arise without being impeached Nothing but alwaies nourish a Viper in the bosom of the Law which is quite against the intent of the makers of the Statute The Law was made to preserve peace amongst the Subjects and to assure their Possessions as many other Statutes did that were made about this time as the Statutes of Fines Wills and others But if the exposition of this Statute shall be as the other side hath taken it it will make the confusion which will happen therupon intollerable and much worse then it was before the Statute was made and as Walsh said if no assurance can be made to be forcible against such a contingent Use this will make it worse then it was before And hesaid that it was not to be compared to the interest of Lands to begin at a time to come nor to the case where a man devise that his Land shal be sold in which case be shall not be impeached by any manner of assurance to be made in the mean time by the Heir and the reason is because the Vendee takes by the Will under the Estate of the Heir and not by the sale and therfore upon the matter he conceived that the Plaintiff ought to be barred Periam said that Uses were at Common Law and to prove it he vouched 24 H. 8. abridged in Brook And he said that there have been alwaies trusts Ergo Uses ab initio but they had not such estimation at the beginning as they have had by continuance of time and so it was of Copyholds And these Uses at Common Law bind but in privity according to the trust but do not bind in the possession of him who cometh to the Land in the Post But now by the Statute all trusts are gone and the Estate of the Land it self transferred to the Use and now the Use guides the Land and not the Land the Use And the Statute did not intend to destroy any Use but to bring it back to the Possession according to the course of the common Law and to avoid the fraud And as before the Statute the Use it self in such a case of Contingency was in obeyance for the time so now the Estate it self is in obeyance by the Statute which wills that he shall now have an Estate in the Land it self of such a quality as he had before in the Use for the Statute puts all cleerly out of the Feoffees and it is not inconvenient to have a Possession so to a Contingent Use and if it had not been in the words of the Statute yet as hath been sayd it shall be so taken by the intent of the Statute for it never was the intent of the makers of the Statute to do wrong to any by means of the Statute And therfore he put the case of Cramner who made a Feoffment to the use of himself for his life and after his decease to the use
the Causa Matrimonii prolocuti which as they pretend ought to prove that there was a trust at Common Law And the other the Statute of Marlbridge that the Lord in case of Wards against Feoffments made by Collusion which Feoffments they alledge prove that a trust then was To which it was said that the gift made by a woman to another to the intent that he shal marry her hath in it a Condition more properly implied to wit that if he doe not marry her that she shall have her land back againe for which the Common Law gives her remedy by the Action aforesaid for if it had been but a trust no remedy had been by the Common Law And for the Statute of Marlbridge the contrary therunto is manifestly proved for the Statute speaks but of Feoffments made to Heirs apparants or upon Condition or to the intent to enffeoff the Heir at his full age or the like in which cases the use alwayes goes with the Possessions and is not to the Feffor And the Statute of 4. H. 7. was made in vaine which gives the Wardship of Cestuy que use where no Will is declared which had not been needfull if Feoffments within the Statute of Marlbridge had been said to have been to Uses And without doubt if those who made the Statute of Marlbridge had then had knowledge of these Feoffments to Uses which were so mischievous and more then the other Feoffments by Collusion they then would have provided remedy for these cases of Uses Also the Statute de Religiosis ordains that Nec arte nec ingenio Lands shal not be conveyed in Mortmain and therby it was conceived that a full provision had been made against these Mortmains and yet in 15 Rich. 2. Provision was made against Uses conveyed in Mortmain to Religious or other Corporations of which they took the Profits And without doubt those who were so precise in the making of the Statute of Religiosis against Mortmains would also have made provision for the uses if they had then been known But to cleer this point without all controversie the Statute it self of uses 27 H. 8. makes it plain which saith expresly that by the Common Law of the Realm Lands or Tenements ought not to passe from one to another without solemn Livery matter of Record or writing and that these Feoffments to uses were Errors used and accustomed within the Realm to the Subversion of the ancient Laws therfore it stands not with the ancient Common Law of the Realm as all the Parliment took it which is more to be regarded then any Book vouched But see how and when they began and crept in at Common Law and it shall be easily perceived as it hath been well said by some of those who argued to this point at the beginning that they began by two means to wit by fraud and by fear And he said that the first Book which he had seen in all the Books of the Law which tend to an use is the case of 8. Assise which makes mention that the Counsee of a Fine entred into the Land in the right of another which is to be taken to anothers use And in the Quadragessimâ—s of Edw. 3. mention is made of the Feoffees of the Lord Burglash who sued to the King by petition and by the Statute of 50 Ed. 3. cap. 6. mention is made that divers gave their Lands to their Friends to have the profits and afterwards fled to priviledged places and lived there to the hinderance of their Creditors And therfore it was provided that in such a case execution shall be made as if no such assurance had been made And by 2 Rich. 2. these are called Feoffments to uses and made by craft to deceive Creditors and there is the first mention which is made in any Statute of the word Use So fraud hath been alwaies the chief foundation of these Vses yet in time they began to have some credit in the Law And this was when men saw that the Court of Conscience gave remedy in these cases against such who had not the conscience themselves to perform the trust put in them and to take away the danger which hapned to an infinite number of good Subjects upon the Garboyls which hapned between the time of E. 3. and that of King H. 7. caused that in effect all the Possessions of the Realm were put in Feoffments to uses And the first case in the Law which speaks of this word Use which he ever saw was as he said in 5 H. 4. And in the like case by Gascoign 7 H. 4. no remedy is given by the Law for Cestay que use and afterwards it crept into the Law as appeareth yet as an Error of long time used And if before the Statute of 27 H 8. a Lease had been made for life the remainder in Fee to the use of B. for life the remainder to the use of the first Son of the said B. and so further as here If the Tenant for life had made a Feoffment in Fee to a stranger and had not given the stranger notice of the Use and all this were without consideration and afterwards he in the Remainder in Fee to the Use had released all his Right to the said stranger every one of them had been hereby without remedy for their Uses Were the Son of B. born before or after this wrong done So if it were at Common Law before this Statute as hath been weâ—l said and the Law being so before this Statute then he said it was to be seen what was to be done in the case after the Statute which will stand altogether upon this what will become of these contingent Vses to the Sons not born at the time of the said Feoffment made by Sir John Saintleger and his Co-feoffees by this Statute of 27 H. 8. and it seems to him cleerly that no possession is executed to any contingent use by this Statute untill it comes in being and that as the case is here and in some other speciall cases it shall never be executed And one cause why such a contingent Vse shall not be executed is because it doth not stand with the letter of the Law but rather is against the letter Another cause is because it is utterly against the intent of the Law to execute it as the case is here It doth not stand with the Letter of the Statute for this is Where any person or persons stand seised to the use of any other person or persons c. And it is cleer that none can stand seised to the use of him who is not neither can he who is not in rerum natura have any use therfore the case here doth not stand with the letter of the Statute to be now executed And further the words following are that in every such case every person who hath such an Use in Fee-simples Fee-tail for life for years c. or otherwise in Remainder or
time to come and therfore by this exposition much more to the disinherison of the Heir then it was before the making of this Statute And which is more mischievous if a Feme putein happen to be in such a house who happen to have Children in Adultery these Bastards shall have the Land against the will of the Father to the utter disinherison of the true Heirs and against the intent of him who made the limitation by which we may see the just Judgment of of God upon these who attempt by humane pollicy to circumvent the divine providence of God for the time to come and of this also I have seen an example And now to the mischief that men do not know against whom to bring their Actions to sue for their Rights and it is cleer that now by such an exposition they shall be now in much worse condition then they were before for before the Action was given against him who received the Profits which is now gone by this Statute in the cases of Free-hold and therfore if the other exposition shall hold place it is cleer that untill the Statute of 13 Eliz. men might have been by means of this Statute put out of all remedy to recover their rights by any manner of Action as some put it in practice as to make Feoffments to the use of the Feoffor and his Heirs untill any intend to bring an Action against him for this Land and then over to others upon the like limâ—tation with a Proviso to make it void at his pleasure and the like and what mischief shall then be for the time upon such an exposition such that Justice therby cannot be done to the Subject and what an absurdity shall it be to say that such an Exposition can stand with the intent of the Makers of the Law And to that which hath been argued on the other side and first to that which was said by Walmsley That the Right Estate and Possession is wholly out of the Feoffee and vested to the Vses which have their beeing by the Statute and that upon the Contingents hapning their Estates uncouple and give place to the contingent Vse then executed and that the execution therof shall be by a Possession dâ—awn to it out of the Possession which was before executed by the Statute in another I say that this Statute can by no means have such an exposition for this is as much as to say that an Vse may arise upon an Vse contrary to what is adjudged 36 H. 8. That a Bargain and Sale by a Deed indented and enrolled cannot be at this day of Land to one to the Vse of another And if a man enfeoff another to the use of I. S. and his Heirs and if I. N. pay such a summ that then the said I. S. and his Heirs shall be seised of the same Land to the use of the said I. N. and the Heirs of his body I. â— paies the money yet the Vse doth not rise out of the Possession of the said I. S. But if it had been that upon the payment the first Feoffee and his Heirs shall stand seised to the use of the said I. N. and the Heirs of his body it shall be otherwise therfore somthing remains to the first Feoffee in the Judgment of the Law And I remember that when I was a Counsellor at Law in the time of the Lord Dyer where a Feoffment was made to the Vse of one for life with Remainders over with restraint to alien and with power given to Tenant for life to make Leases for one and twenty years or three lives it was much doubted whether this power so limited to him without words in the Assurance that the Feoffee and his Heirs shall stand seised to these Vses shall be good to make such Leases or not And therfore suppose that a man bargains and sells Land to one for his life by Deed indented and inrolled and make therin a Proviso that the Tenant for life may make such Leases this is to no purpose as to power to make a Lease but the strongest case which he put was that of 30 H. 8. which I agreed to be Law as it is there put whether it were before or after the Statute of 27 H 8. for it is not there put that the Feoffment was made upon any consideration to the stranger in which case although he had no notice of the first Covenant yet in such a case he shall take the Possession subject to the Vse to which it was bound by the present Covenant But if you consider the case well you shall see that it was a case before the Statute for it followeth presently in the same case that it is there said that it is not like the case where the Feoffees in Vse fell the Land to one who hath no notice of the first Vse wherby it appeareth that it was a case before the Statute for otherwise there had been no cause to have spoken then of the Feoffees to an Vse and by the same it appeareth if the Covenantor had bargained and sold the Land to another the same Vse had never risen upon the Covenant and therfore it is cleer against the Law that the Possession shall be bound wâ—th such an Vse in whosoevers hand it comes And to that which Peâ—â—am said in the case of these Contingent Vses they shall now by the Statute be in the same degree as if Land it self had been so conveyed and that now the Land shall be in Contingency in stead of the Vse and that by such manner it shall be executed and that by such means all is utterly out of the Feoffees because the Statute was made to determine all â—â—â—ter of trust to be hereafter reposed in any Feoffee this is well spoken but not well proved for as I have said before it is an exposition quite contrary to the letter and intention of the Law And I agree as hath been said if there be none to take the Use at the time that it falleth to be in possession according to the limitation that he shall never take it afterwards no more of an Use upon the Statute then of â—n Use at Common Law As if an Use be limitted for life the remainder to the right Heirs of I. S. if the Estate for life be determined in the life of I S. the remainder shall never vest afterwards in the right Heirs of I. S. no more then if an Estate had been so made But this makes for me to wit that the Estate upon the Uses executed by the Statute shall be of the same condition as Estates in possession were at Common Law and that they being executed ought also to be such of which the Common Law makes allowance And by way of argument I agree for the time that it is as hath been said by them who maintain that an Use may be in suspence as to that which is an Use in its proper nature for it is
not properly said an Use untill that it be said in Esse to take the Profits themselves But I am to turn this Argument against him who made it for if it be so the Use can never be in suspence and iâ— so it follows that no Possession by means of any such Use can be in suspence but staies where it was before to be executed when the Use happens to be in beeing But as to that that a Reversion or Remainder may be of that which we call an Use so also may such a Use be in suspence in the same manner as the Possession it self but not otherwise And as to Cramners Case formerly put the Law is so because nothing appeareth in the case to be done to the disturbance of this contingent Vse in the interim before it happen But upon the Case put of the Lady Bray upon which it hath been so strongly relied it was thus The Lord Bray made an assurance of certain Lands to the use of certain of his Councell untill the Son of the said Lord Bray should come to the age of 21. years for the livelyhood of the said Son and of such a Wife as he shall marry with the assent of the said Councell and then to the use of the said Son and of the said Wife and of the Heirs of the body of the said Son The Father dies the Son was become in Ward to the King after which one of the said Councellors dies the King grants over the Wardship of the said Son after which the said Lord Bray by the assent of his Guardian and of the surviving Councellors marries the Daughter of the then Earl of Shrewsbury after which the Husband aliens the same Land to one Butler and dies and upon Action brought by the said Lady against the said Butler for the same land she was barred by Judgment and upon what reason because she was not a person known when the Statute was made which must be in every case of a Freehold in Demesne as well in case of an Use as in case of a Possession And therfore a Lease for years the Remainder to the Heirs of I. S. then living is not good and the same Law of an Vse And so it was agreed by all the Iustices very lately in the case of the Earl of Bedford but in these Cases it remaineth to the Feoffor and because it doth not appear at the time of the assurance who shall be the Wife of the said Son so that there was not any to take the present Free-hold by name of the Wife of the Son she takes nothing by the assurance but this reason makes for our side to wit That if there were none to take the Free-hold in Demesne from the Use when it falleth he shall never take it The other reason in this Case was because she was not married by the consent of all the Counsellors for that one was dead nor according to the power given by the agreement but by the authority of the Guardian that the power which the Father had upon his Son was ceased And Nota That by a Disseisin the contingent Use may be disturbed of his Execution but there by the regresse of the Feoffee oâ— his Heirs when the Contingent happen it may be revived to be executed But by the release of the Feoffee or his Heirs the Contingent in such a case by Popham iâ—â—â—â—red oâ— all possibility at any time to be executed And to that which hath been said that the generall and universall Assurances of men throughout all the Realm at this â—ay arâ— by means of Vses and that it shall be a great deal of danger and inconvenience to draw them now in question or doubt and that it now trembleth upon all the Possessions of the Realm and therfore it shall be too dangerous to pull up such Trees by the roots the Branches wherof are such and so long spread that they overshadow the whole Realm Popham said That they were not utterly against Uses but only against those and this part of them which will not stand with the publike Weal of of the Realm and which being executed shall make such an Estate which cannot stand with Common Law of the Realm or the true purport of the Statute and therfore he said that it was but to prune and cut off the rotten and corrupt branches of this Tree to wit that those which had not their substance from the true Sap nor from the ancient Law of the Realm nor from the meaning of the Statute and so to reduce the Tree to its beauty and perfection The same reason he said might have been made in the time of Edw. 4. against those Arguments which were made to maintain the common Recoveries to bar Estates-tail But if such a reason had been then made it would have been taken for a bare conceit and meer trifle and yet Vses were never more common then Estates-tail were between the Statute of Donis conditionalibus and the said time of Edw 4. But the grave Iudges then saw what great trouble hapned amongst the people by means of Intails and what insecurity happened by means therof to true Purchasors for whose security nothing was before found as we may see by our Books but collaterall Warranty or infinite delay by Voucher and thus did the Iudges of this time look most deeply into it wherupon upon the very rules of Law it was found that by common Recovery with Vouchers these Estates-tail might be barred which hath been great cause of much quiet in the Land untill this day that now it begins to be so much troubled with the cases of Vses for which it is also necessary to provide a lawfull remedy But he said plainly That if the Exposition made on the other side shall take place it will bring in with it so many mischiefs and inconveniencies to the universall disquiet of the Realm that it will cast the whole Common-wealth into a Sea of troubles and endanger it with utter confusion and drowning And to that which was said That a Remainder to the right Heirs of I. S. or to the Heirs of the body of I S. or to the first Son as here are so in the custody of the Law that they cannot be drawn out that therfore no forfeiture can be made by the Feoffment made by him who hath the particular Estate To that he said That a Disseisin made to the particular Estate for life draws out such Remainders to the right Heirs as is proved expresly by 3 H. 6 where it is holden that a collaterall Warranty bars such a Remainder in obeyance after a disseisin And by Gascoigne 7 H. 4. If such a Tenant for life makes a Feoffment in Fee it is a Forfeiture but he conceived that in the life time of I. S. none can enter for it but this is not Law and when by the Feoffment the particular Estate is quite gone in possession and in right also the remainder shall never take
effect by the very rules of Littleton And by 27 H. 7. which is That a Remainder cannot be unlesse there be an Estate upon which it may have dependency which there it cannot but in the case of a Disseisin made to a particular Estate it is otherwise because there the Estate remains in right And to say that it shall not be a Forfeiture because the Feoffment was made to Christopher who then had the Fee-simple which was limited to the right Heirs of Sir Richard Chudleigh this is not so for by 41 E. 3. The Tenant for life himself who also had a Remainder in Fee-simple in himself depending upon a mean Estate-tail in another made a Feoffment and by it committed a Forfeiture to him in the Remainder in tail But if Tenant for life Remainder in tail Remainder in Fee enfeoff him in the Remainder in tail this is a Surrender of his Estate for the immediate Estate which was in him wherupon this Term Judgment was given in the Kings Bench for Fraine the Defendant against Dillon who was Plaintiff And it is entred Hill 31 Eliz. Rot. 65. Baynes Case 10. AT the Sessions holden at Newgate presently after this Term the case was this one Baines with another came in the night time to a Tavern in London to drink and after they had drunk the said Baynes stole a cup in which they drunk in a Chamber of the same House the Owner of the said House his Wife and servants then being also in the House and the cup being the Owners of the said Tavern wherupon he was indited and committed Burglary this matter appeared in the Inditement and agreed by Popham Anderson and Periam with the Recorder and Serjants at Law then being there that this was not Burglary and yet it was such a Robbery whereby he was ousted of the benefit of his Clergy by the Statute of 5. E. 6. Cap. 9. and was â—anged 11. ANd at the Sessions then next ensuing 〈◊〉 holden upon one who had stolen a silver Bason Ewer of the then Bishop of Worcester the sale made openly in the day in a Scriveners shop in London to a stranger the question was demanded of the Court whether the property were changed by this Sale so that the Bishop shall not have his Plate againe because it was alledged that they prescribed that every one of their shops in London are good Markets overt through all London every day in the week but Sunday But agreed by Popham Egerton Anderson Brian and others skilfull in the Law then being there that such a generall custome is not good and that this Sale made there albeit it were openly in the shop so that every one passing by In which case Shops in London are Markets Overt what not might see it shall not bind the property as it shall doe in Market overt for a Scriveners Cutlers Shop or the like is not proper for the Sale of I late nor a place to which men will go to seek for such a thing lost or stole But a Goldsmiths Shop is the proper Shop for it as the Drapers Shop is for Woollen cloath or the Mercers Shop for Silk and the like and to such men will go to seek for things of the like nature that are lost or stolen and not to a Scriveners Shop or the like And they agreed also that a private Sale made in the Shops which are proper to the nature of the thing sold so that the Passers by cannot in reason see it in their passage cannot bind for reason upon which the Law is founded will not admit any such custome Hillary Term 37 Eliz. in the Kings Bench. Westby versus Skinner and Catcher 1. IN Debt by Titus Westby Plaintiff against Thomas Skinner and John Chatcher late Sheriffs of London Defendants for 440 l. upon Nihil debet pleaded and a special Verdict found the Case appeared to be this See this case in Coke 3. Report fol 71. 6. to wit One Anthony Bustard with others were bound in a Recognizance in the nature of a Statute-staple of 440 l. to the Plaintif wherupon the Plaintif sued Execution out of the Chancery against the said Anthony and the other that were bound with him for the Bodies Goods and Lands of the said Obligers which writ of Execution was delivered to the said Defendants the 8th day of Prisoners in execution to be delivered over to the new Sheriff by Indenture and all the executions to be therin moved September 30. Eliz. the Defendants then being Sheriffes of London and the said Anthony being then in Newgate in Execution in the custody of the said Defendants for 240 l. at the suit of one Robert Deighton and that afterwards to wit the 20 th day of October in the same yeer the said Defendants were discharged and removed from their said Offices and Hugh Offeley Richard Saltonstall were then made Sheriffes of London and that the said Anthony being in Execution for the one and the other debt the said Defendant the said 20th day of October by Indenture delivered the said Anthony to the said new Sheriffes in Execution for the said debt of the said Robert Deighton not giving them any noâ—ice of the said Execution made for the Plaintiff and suffered the said Anthony to goe at large And whether the Defendants shall be charged for this escape was the question And the escape was alledged by the Declaration to be suffered by the said Defendants the said 20. day of October 30 Eliz. and it was moved by Tanfield that the new Sheriffs ought to take notice of their Prisoners remaining in the Goal at their coming into their Office at their perill and ought to enquire and search for the causes that then were in custody and not to deliver them of their own head without due course of Law And he put the case That if the old Sheriff had been dead in the mean time before the new Sheriffs had been made shal this be an excuse to the new Sheriffs that they had no notice for what cause this Anthony had been in Prison if they suffer him to escape And he said that it shall not no more here but per Curiam the new Sheriff shall not be charged with this Escape as to the 440 l. of which they had no notice for if this case which was private in the knowledge of the ancient Sheriff only upon a Writ directed to them at the suite of any party the new Sheriffs cannot by intendment have any knowledge unlesse it be given to them by the old Sheriffs to whom the Writ of Execution was directed and delivered And the case of one Dabridgecourt who was Sheriff of Warwick and had one in Execution whom he kept in a private Prison by himself for all his Executions in the Town of Warwick and when he was discharged of his Office and a new Sheriff made Dabridgecourt said to the new Sheriff That he had such a one in Execution
the Assise in manner and form as the Writ supposeth And further that the said West therof disseised the said Mounson namely of the Tenements in the will of one Mounson And did not find either the words of the Will nor the Will it self what it was c. And the Iustices of Assise upon this Verdict upon advice with the other Iustices gave Iudgment that the Plaintiff shall recover c. upon which a Writ of Error was brought in the Kings Bench where it was moved that the Iudgment was erroneous First because the Iury have not found that the Defendant was Tenant of the Free-hold agreeing with the form of the Plea for the Writ of Assise doth not suppose him to be Tenant of the Free-hold and therfore the Verdict in this point not fully found The second Error is that the Seisin of the Plaintiff is not required of according to the charge given to them as well as the Disseisen for the charge was that they should enquire of the Seisen of the Plaintiff c. But to both these the Court answered that the Verdict is well enough notwithstanding these exceptions for every Assise brought supposeth that there is a Disseisor and a Tenant named in it then this Assise being brought against a sole person supposeth him to be a Disseisor and Tenant also and therfore the Verdict saying that he was Tenant as the Writ supposeth is now as strong in this case as if they had found that he was Tenant of the Free-hold for the Tenant of the Free-hold ought to be named in the Writ But if the Assise had been brought against two or more such a Verdict had not been good for it sufficeth if any of them be Tenant of the Freehold and then the Writ doth not suppose one to be Tenant more then another but supposeth one Tenant to be named in the Writ And therfore in such a case the finding ought to be speciall to wit that such a one is Tenant of the Free-hold or that there is a Tenant of the Free-hold named in the Writ But where one only is named in the Writ to be Disseisor and Tenant it is sufficient to find as here for by this it is certainly found that he is Tenant of the Free-hold And for the other point although it be a good direction for the Iudges to the Iury wherby they may the better perceive that there ought to be a Seisin in him or otherwise there cannot be a Disseisen by the other yet in Deed he cannot be a Disseised who was not then seised But the Assise having found the Disseisen the Seisen in Law is found included in the Disseisen But for the point moved that the Verdict was not perfect in as much as they found the Disseisen with a Nisi it seemed to Gawdy that the Iudgment upon this Verdict was erronious as where a Verdict in another Action is imperfect a Venire facias de novo shall be awarded to try the Issue again And if Iudgment be given upon such a Verdict it is error so here the Verdict in this point being incertain there ought to have been a Certificate of Assise to have this better opened But the three other Iustices held as the case is that the Verdict in this point is certain enough for that which cometh before the Nisi as it is placed is meerly nugator as in the case of the Lord Stafford against Sir Rowland Heyward the Iury found Non assumpsit but if such Witnesses say true as they believe they did Assumpsit c. it was but a meer nugation But it seemed to Popham that if the Verdict had been if the words of the Will do not passe the Land then that he disseised and if they passe then that he did not disseise there if the words of the Will be not found the Verdict had been all imperfect but here the Verdict is full and perfect before the Nisi c. and therfore the Iudgment was affirmed Holme versus Gee 8. A Formedon in Descender was brought by Ralph Holme Demandant against Henry Gee and Elizabeth his Wife Tenants and the Case wâ—s thus Ralph Langley and others gave two Messuages and a Garden with the Appurtenances in Manchester to Ralph Holme the great Grandfather of the Demandant and to the Heirs of his body begotten after which the same great Grand-father by Deed indented dated 20. September 14 H. 7. enfeoffed Iohn Gee of one of the said Messuages and of the said Garden rendring yearly to the said great Grand-father and his Heirs 13 s. 4 d. a year at the Feasts of S. Michael and the Annunciation by equal portions after which the said Iohn Gee died seised of the said Messuages and Garden and it descended to Henry Gee his Son and Heir after which the said great Grand-father by his Indenture bearing date 6. Martii 12 H. 8. enfeoffed the said Henry Gee of the other Messuages rendring also to him and his Heirs yearly 13 s. 4 d. at the said Feast aforesaid by equal portions after which Holme the great Grand-father died Stephen Holme being his Son and next Heir who was seised of the Rents aforesaid and afterwards also died seised Robert Holme being his Son and Heir after which the said Henry Gee died seised of the said two Messuages and Garden and they descended to Eliz. his Daughter and Heir who took to Husband one Richard Shalcroft and had Issue the said Elizabeth wife of the said Henry Gee Tenant in the Formedon after which the said Richard Shalcroft and his wife died after which and before the marriage had between the said Henry Gee and Elizabeth now Tenants in the Formedon the said Elizabeth enfeoffed one Richard Greensearch of the said Messuages and Garden after which to wit at the Feast of the Annunciation of our Lady 3 Eliz. the said Henry Gee husband to the said Elizabeth paid 13 s. 4 d. for the said Rent reserved as is aforesaid to the said Robert Holme after which to wit on Munday next after the Assumption of our Lady at Lancaster before the Justices there a Fine was levied with Proclamations according to the Statute between Thomas Aynsworth and Thomas Holden then being seised of the Tenements aforesaid Complainants and the said Henry Gee and Eliz. his wife Deforceants of the Tenements aforesaid wherby the Conusance was made to the said Thomas and Thomas who rendred them to the said Henry Gee and Eliz. his wife and to the Heirs of their bodies the Remainder to the right Heirs of the said Henry the five years past after the Proclamations in the life of the said Robert Holme after which the said Robert died and Ralph his Son and Heir brought the Formedon upon the Gift first mentioned and the Tenants plead the said Fine with Proclamations in Bar and the Demandant replyed shewing the severall discontinuances made by the great Grand-father as aforesaid and the acceptance of the said Rent by the said Robert by the hands of
doth much concern the Infant in as much as by his false plea he shall be bound to â—nswer of his own Goods if he hath no Goods of his Testator and therfore in a 11 E. 4. 1. he hath remedy against his Guardian for pleading a false Pâ—ea And by Doderidge if he hath no Guardian the Court shâ—ll appoint him a Guardian And if an Infant bring an action as Executor by Attorney and hath Iudgment to recover this is not erronious because it is for his benefit so per Curiam the difference is where he is Plaintiff and where he is Defendant And there is another difference where he is Executor and where not for being Executor his Plea might have been more prejudiciall to him and Coke lib 5. Russels case was agreed for good Law for an Infant may be Executor and may take money for a Debt and make a Release and give an Acquittance but not without a true consideration and payment of the money The same Term in the same Court. Thomas Middletons Case THomas Middleton alias Strickland was condemned for a Robbery at the Where a Felon is condemned and elcapeth and is re-taken upon confession that he is the same party execution may be awarded The Sheriff of Middlesex fined for not attending the Court. Assises in Oxford after which he made an escape and being taken again he was brought to the Bar and upon his own confession that he was the same party who did the Robbery and that he was condemned for it the Court awarded execution And Mountague chief Iustice said thâ—t was no new case for it had been in experience in the time of E. 3. and 9 H. 4. and 5. E. 4. that the Court might so do upon his own confession And because the Sheriff of Middlesex did not give his attendance upon the Court in this case nor came when he was called the Court fined him 10 l And Mountage said that it shall be levied by proces out of the Court and also all other Fines there assessed and not estreated into the Exchequer for then the party might compound for a matter of 20 s. and so the King be deceived The same Term in the same Court. Gouldwells Case IOhn Gouldwell seised of Land in Socage Tenure devised them to his Wife for life the Remainder to John Gouldwell his Son and his Heirs upon Condition that after the death of his Wife he shall grant a Rent-charge to Steven Gouldwell and his Heirs and if John Gouldwell dye withâ—ut Heirs of his body that the Land shall remain to Steven Gouldwell in Tail the Wife dieth John Gouldwell grants the Rent accordingly Stephen Gouldwell grants the Rent over John Gouldwell dies without Heir of his body and the second Grantee distrains for the Rent arrear and Stephen Gouldwell brings a Replevin And it was urged by the Counsell for the Plaintiff that this Rent shall not have continuance longer then the particular Estate and cited 11 H. 7. 21. Edriâ—ks case that if Tenant in Tail acknowledge a Statute this shall continue but during his life and Dyer 48. 212. But it was agreed per Curiam that the Grantee was in by the Devisor and not by the Tenant in Tail and therfore the Grant may endure for ever But for the second point this being to him in Remainder the intent of the Demisor is therby explained that he shall have the Rent only untill the Remainder come in possession for now the Rent shall be drowned in the Land by unity of possession 3. It was agreed and resolved that by the granting of the Kent over this was a confirmation And Mountague said that it was a confirmation during the Estate Tail and shall enure as a new grant afterwards And Haughton and Doderidge said that they would not take benefit of the grant over by way of confirmation for as Haughton said this enures only ought of the Devisor and he hath power to charge the Land in what manner he pleaseth and it is like to an usuall case as if a man makes a Feoffment in Fee to the use of one for life the Remainder over with power to make Leases and after he makes a Lease this is good against Tenant for life and him in the Remainder also And I have considered what the intent of the Devisor should be in granting of this Rent and it seems to me that in as much as the Land is limited in Tail and the Rent in Fee that by this the Grantee shall have power to grant or dispose of the Rent in what manner he would but if the Land had been in Fee I should have construed his intent to have been that the Grantee should have the Rent only untill the Remainder fall to which Doderidge agreed who said that we are in the case of a Will and this construction stands with the intent of the Devisor and stands with the Statute which saies Quod voluntas Donatoris est observanda The same Term in the same Court. Baskervill versus Brook A Man became Bail for another upon a Latitat in the Kings Bench and before Iudgment the Bail let his Lands for valuable consideration Difference between baile in the Kings Bench and the Common Pleas. And how a bail shall relate And afterwards Iudgment was given for the Plaintiff And now it was debated whether the Land Leased shall be liable to the Bailment and it was said by Glanvill of Councell with the Lessee that it ought not to be liable and he put a difference between a Bailment in this Court and a Bailment in the Common Pleas for there the Suit cometh by originall and the certainty of the debt or demand appeareth in the declaration and therfore then it is certainly known from the begining of the Bailement for what the Bail shall be bound But in this Court upon the Latitat there is not any certainty untill Iudgment given before which the Land is not bound and now it is in another mans hands and therfore â—ot liable and he puts Hoes case Co. lib. 5. 70. where iâ— was resolved that where the Plaintiff releaseth to the Bail oâ— the Defendant upon a Suit in the Kings Bench before Iudgment all Actions Duties and Demands that this Release shall not bar the Plaintiff for there is not any ceâ—tain duty by the Bail before Iudgment and therfore it cannot be a Release and he citeâ— the case of 21 E. 3. 32. upon an account and said that it was like to a second Iudgment in that which reduceth all to a certainty and therfor c. But it was said by Mountague and Crook that the Lessee shall be bound for otherwise many Bailments and Iudgments shall be defeated which will bring a great Inconvenience And Mountague said that it was like to the case of a bargain and sale of Land which after it is Inrolled within six moneths shall relate to the beginning of the Bargain so upon the Iudgment given relation is made from the time
of the Bailment But Haughton being contra therfore Curia advisare vult The same Term in the same Court The Earl of Shrewsburies Case VPon a Verdict a rule was given to have Iudgment and this was upon the Thursday and upon Sâ—â—uâ—day after thâ— party that was Plaintiff died and it was moved to have a Writ of Error because it was said that the party died before Iudgment in as much as of course aâ—ter the Verdict and the â—ule given for Iudgment there are four daies given to speak in Arrest In the diâ—cretion of the chief â—ustice to allow a Writ of Error The entry of a Iudgment how it shall relate of Iudgment â—â—o so as Yelverton Attorney-generall said he died before Iudgment absolutely given and he moved the Court to have a Supersedeas And it was agreed that it wâ—s in the discretion of the chief Iustice Ex officio to allow a Writ of Error but because it was a cause of great consequence he took the advice of the Court and it was agreed that a Writ of Error was a Supersedeas in it self yet it is good to have a Supersedeas also and if the Writ of Error had been allowed the Court could not deny the party a Supersedeas But because the Writ of Error was not allowed and also because no Error appeared to the Court for where Iudgment is entred this shall relate to the time of the rule given It was resolved that no Writ of Error should be allowed nor any Supersedeas granted The same Term in the same Court. Rones Case IN an Ejectione firmae brought by the Lessee of Rone Incumbent of the Church of Dallinghoe in Com. Suff. It was found by speciall Verdict that the King was the true Patron and that Wingfeild entred a Caveat in vita Incumbentis he then lying in Extremis scilicet Caveat Episcopus ne quis admittatur c. Nisi Convocatus the said Wingfeild the Incumbent dies Naunton a stranger presents one Morgan who is admitted and instituted afterwards the said Wingfeild presents one Glover who is instituted and inducted and afterwards the said Rone procure a presentation from the King who was instituted and inducted and then it came in question in the Spirituall Court who had the best right and there sentence was given that the first institution was Irrita vacua inanis by reason of the Caveat then the Church being full of the second Incumbent the King was put out of possession and so his presentment void But it was adjudged and resolved by all the Court for Rone for 1. It was resolved that this Caveat was void because it was in the life of the Incumbent 2. The Church upon the Institution of Morgan was full against all but the King and so agreed many times in the Books and then the presentation of Glover was void by reason of the super-institution and therfore no obstacle in the way to hinder the presentation of Rone and therfore Rone had good right And if the second institution be void the sentence cannot make it good for the Spirituall Court ought to take notice of the Common Law which saith that Ecclesia est plena consulta upon the institution and the person hath therby Curam animarum And as Doderidge Iustice said he hath by it Officium but Beneficium comes by the Induction And although by the Spirituall Law the institution may be disannulled by sentence yet as Linwood saith Aliter est in Anglia who is an Author very well approved of amongst the Civilians And Doderidge put a case out of Doctor and Studient the second Book If a man devise a summ of money to be paid to I. S. when he cometh to full age and afterwards he sues for it in the Spirituall Court they ought to take notice of the time of full age as it is used by the Common Law to wit 21. and not of the time of full age as it is used amongst them to wit 25. So in this case at the Bar for when these two Laws met together the Common Law ought to be preferred And when the Parson hath institution the Arch-deacon ought to give him Induction And see Dyer 293. Bedingfeilds case cited by Haughton to accord with this case The same Term in the same Court Taylors Case JOhn Taylor a Citizen and Alderman of Glocester was put out of his place by the Common Counsel of the City for some misdemeanor and he sued out a Writ of Restitution and for that the cause of his displacing was not sufficient Writ of Restitution for an Aldermans place his Writ was allowed by reason wherof the other Alderman who was elected in his place was to be removed for the number of Aldermen was full But Hazard another Alderman to the end that the new elect who now was Major should not be displaced was contented to surrender his place in consideration of 10 l. a year granted to him by the Corporation for term of his life with which the Wife of Hazard was not content and therfore he would have left his agreement And therupon the question was whether he might surrender or not And it was said by Coventree Sollicitor that he cannot and he cited Middlecots case an Alderman of B. where the opinion of the Court was 13 Eliz. that he cannot surrender Doderidge perhaps they would not except his surrender Mountague said that Alderman Martin of London gave up his Aldermans place and without question any man in such a case may surrender or leave his place to which the Court agreed and therfore it was ordered that Hazard shall have his 10 l. a year and that he shall stand to his first agreement The same Term in the same Court. May and Samuels Case AN action of Debt was brought upon an Obligation the Condition wherof was to stand to the Arbitrement of John S. concerning all matters between them to the time of the submission who arbitrates that the one shall pay 20 s. and that the other shall make a generall release to him of all matters from the beginning of the world to the time of the arbitrement Arbitrement Haughton Iustice this is an arbitrement but of one part and therfore void but if it had been only that the one shall pay 20 s. it may be good for it shall be intended that the other by reasonable construction shall be discharged or acquitted to which Crook and Doderidge Iustices agreed But by Mountague chief Iustice it ought to be specified yet they all agreed and so it was adjudged that this was a void arbitrement for it was of the one part only to wit that he shall pay 20 s. for the other part for the release to the time of the arbitrement was not within the submission so if the arbitrement had been that the one shall make a release or shall be discharged or acquitted without speaking of the other this being on the one part only is a void arbitrement vide
Doctor and Student 137. in what case the Master shall answer for his Servant Coventry Solicitor to the contrary for it was lawful for the Plaintiff to command his Servant to sell them for it was found by the Verdict that the Iewels were of some worth and value and he did not command him to sell them for more then they were worth and 9 H. 6. 53. b. If the Master send his Servant into a Fair or Market to Merchandize for him the Master shall not be punished for his fault And in this case the command was not to deal with the Plaintiff or to sell to any one in particular and for it see 9 H. 6. aforesaid And if the Servant will exceed the lawfull command of his Master the Master shall not be punished therfore but if the command be unlawfull it is otherwise 11 E. 4. 6. A man sells cloath of such a length which proves to be short of the length an action lies not without a Warranty so Fitz. N. B. 64. c. For Wine if it be warranted to be good an action lies if it be corrupt If my Beasts go into another mans Soil an action lies against me but if my Servant drive my Beast into another mans Soil I shall not be punished for he doth this of his own wrong without any such warrant from me 13 H. 7. b. And if when a man sell a thing for more then it is worth an action would lye for it we should never have an end of actions And the action doth not lye for another reason because it doth not appear that the King of Barbary did lawfully imprison the Plaintiff 26 H. 8. 3. If a man makes a Lease and covenants that he shall not be disturbed if a stranger disturb him an action lieth not against the Covenantor so here c. for it seems it was Ex regali potestate and not in a lawfull manner and so he concluded that the action will not lye and so it was resolved by the whole Court Mountague chief Iustice the Plaintiff is no party who shall have the action but the King of Barbary 2. The Verdictis contrary to the Declaration and Iewels are in value according to the estimation and therfore 38 Eliz. between Simson and Sanders in the Star Chamber it was resolved that a man shall not be punished for Perjury upon the valuation of Iewels Doderidge said that 22 Eliz. an action upon the case was brought in the Common Pleas by a Clothier that wheras he had gained great reputation for his making of his Cloath by reason wherof he had great utterance to his great benefit and profit and that he used to set his mark to his Cloath wherby it should be known to be his Cloath And another Clothier perceiving it used the same mark to his ill-made Cloath on purpose to deceive him and it was resolved that the Action did well lye The same Term in the same Court VPon an Indictment of Barretry before the Iustices of Wales a Certiorari was moved for to remove it into this Court And it was said at the Bar that it had not been seen from the time of E. I. that such a Writ A Certiorarâ— granted into Wales had been granted in the like case and therfore he collected that it ought not to be granted But it was resolved by the Court that a Certiorari should be granted in regard it is in the Kings case and by Haughton Iustice notwithstanding the Statute Quod communia placita non sequantur Curiam meam yet it is plain that the King may sue in what Court he will And albeit this Writ in such a case ought not to be granted in case of a common person yet that is no reason but that it may be granted in the case of the King The same Term in the same Court Sir Henry Glemhams Case IN a Quo warranto against Sir Henry Glemham for using certain Liberties to which Sir Henry pleaded in Bar and the Kings Attorney replyed and so this matter rested three years and then the Kings Attorney put in a new Replication and joyned Issue upon other points And it was moved for the Defendant that he might put in a new Bar in regard the Replication A Plea not to be amended in another Term without assent of parties is altered and nothing was entred but all remained in paper And it was agreed by the Court that the King shall not be concluded but that he might put in his Replication at any time And that the King cannot make a double Plea for the other party shall answer first to one and then to the other And the Court would not allow Sir Henry to make a new Bar in this case without the assent of the Attorney who would by no means agree to it And in case of a common person this shall not be allowed without the assent of parties The same Term in the same Court IN an Action of Trover and Conversion between one Nicholas and William Ward it was agreed that tithe Lamb and Wooll was included within small Tithes And Mountague said that a Vicaridge endowed Lamb aâ—d Wooll included in small Tithes might be appropriated but not to the parson to which Haughton and Doderidge agreed 31 H. 6. Fitz. tit Indicavit is that such a Vicaridge may be dissolved An appropriation may be by the King sole where he is Patron but there is no Book that it might be by the Patron sole Grindons case in Plowden and 17 E. 3. 39. An Appropriation cannot be without the Kings licence The same Term in the same Court. Blaxton versus Heath IN an Action of Debt by Blaxton against Heath the case was this A man possessed of a term for twenty years in right of his Wife made a Lease for ten years rendring rent to him his Executors and Assigns and died And the question was whether the Wife shall have the rent after his death or his Executors and it was argued that the wife should nâ—t have it because she was in by a Title Paramount as if there be two Joynt-tenants for life the one makes a Lease for years rendring rent and dies the other shall not have the Rent Dyer 167. and so of joynt-Joynt-tenants in fee Co. lib. 1. 96. and Perkins accordingly To which Mountague chief Iustice agreed for he said it was but an extract of ten out of twenty the remainder continuing as before And Redditus is Reventus a turning again but it is otherwise of a Condition which is a new Creature of which the wife shall take no advantage Crook Iustice This is a speciall reservation and therfore the Executor shall have it and not the wife for she comes in Paramount as in the case of Ioyn-tenants Haughton agreed therunto and said that the Rent shall be incident to him who hath the Reversion under the Lessor who is the Executor And Mountague demanded of Hobert chief Iustice of the Common Pleas his opinion in this
as a memorandum and afterwards there is an order that the Iudgement shall not be filed if the Iudgement upon this shall be stayd and speaks to it and by him the Case of 15. E. 4. 7. is nothing to this purpose for Iustices in Eyre were Iustices by commission and they had not the custody of their Records and so it differs from this case And Jones Justice which was not denyed if a Iudgement be pronounced here and be not entered the Iudges may alter it the next Term. It was said by Noy in this case that all Franchises in England are against common Right and execution of Iustice and for the present purpose he cited one Sir John Wells Case where in a Quo Warranto the Defendant had day to plead or otherwise that judgement should be entered to seise and he failed to plead at the day and the Iudgement was not filed and yet he could not be relieved But it was sayd by some of the Iustices that this was a case of great extremity But by Hendon it was affirmed in the Exchequer in one Sandersons Case and in the principall case the matter was adjourned for a fortnight and ordered that the plea should be accorded Mich. Term 2. Car. in the Kings Bench. Sharp versus Rust IN an Action upon the Case upon an Assumpsit between Sharp Plaintiff and Walter Rust Defendant upon non-Assumpsit pleaded it was found for the Plaintiff and it was moved in arrest of judgement upon these words in the Declaration the Defendant being Father to the Plaintiffs Wife for whom the Apparrel was bought said to the Plaintiff deliver the Apparrel to my Daughter and I will pay for them and saith not to whom the payment shall be made And it was argued by Woobrich of Grayes-Inne that this is no sufficient cause to stay the Iudgement for by necessary implication and reference of the words precedent the certainty of the pers on appeareth to whom the payment ought to be made And he observed that in our Law the time the estate the thing and the person not being sufficiently expressed Where a thing incertain may be made certain both in time estate and person yet by necessary coherence and relation to matter precedent they are sometimes made certain enough 1. For the time Perkins P. 496. puts the Rule if a condition hath relation to an act precedent and no time is limited when it shall be done yet if ought to be done when the act precedent is done and therefore if I. S. be bound to me in 20 l. upon condition that if I enfeoff him of black acre that then he wil pay me 10 l. c. in this case presently when I have enfeoffed the obligor of black acre he ought to pay the 10 l. notwithstanding there be no time limited when it should be payd 2. For the thing being put incertainly yet the communication precedent makes this certain 30. H. 8. Dyer 42. in the Case of the Executors of Greenliffe where it is agreed that albeit it is not shown what thing is granted yet it shall be the Land of which the communication was 3. For the Estate although it be incertain yet sometimes it is made certain by the matter precedent as in the Case Co. lib. 8. A Stewardship was granted for life and afterwards an Annuity was granted for the exercise of that Office without declaring what Estate he should have in that Annuity and resolved that he should have the Annuity for life because he had the Office for life 4. For the person the consideration sometimes ascertains the person and therefore if land he given to one by Deed habendum sibi una cum filia donatoris in frankmariage this shall enure to both because the Feme is Causa donationis and by intendment of law the Land and the feme shal be given together to the man for the advancement of the Feme as it is Mich. 2. 3. Ph. Mary Dyer 126. a 4. E. 3. 4. Plow Com. 158. enfeoff him another and bind him and his heirs to warrant doth not say to whom he shall warrant yet the Feoffee and his heirs shall have advantage of this warranty for it cannot have any other intendment 6. E. 2. Voucher 258. 22. E. 4. 16. Kelleway 108. Co. lib. 8. Whitlocks Case In a Lease for years reserving rent it is the surest way to make the reservation to no person in certain but to leave it to the general intendment of the Law 15. H. 7. A man deviseth that his Land shall be sold for the payment of his debts and doth not say by whom they shall be sold by his Executors because they are lyable for the payment of his debts but if one devise that his land shall be sold saith not for the payment of his debts the devise is void because the Law doth not intend in this case to make the sale 40 E. 3. 5. 4. E. 3. Fitzherbert Obligation 16. Nota if a man be bound in debt or Covenant by writing and puts such a clause in the writing Et ad majorem hujus rei securitatem invenit fidei jussores quorum unusquisque in tot in solido se obligavit that although none speak there but the principall in the writing if the others put to their seals they accept that which the principal spake so become principal 2. E 4. 20. and here in our Case it appeareth that the Deed was so therefore it is reason that the Declaration should be so for there cannot be a material difference between the Declaration the deed especially being upon an agreement which is to be ruled according to the intention of the parties as it is in Plow Com. 140. a. In our Law if any parties be agreed upon a thing and words are expressed or written to make the agreement although they be not apt words yet if they have substance in them tending to the effect intended the Law shall take Intention of parties to be observed them of the same substance as words usuall for the Law regards the intention of the parties and here the intent appeareth that the assumption shall be mâ—de to the Plaintiff although there want expresse words and therefore he prayed Iudgement for the Plaintiff And afterwards the same Term Iudgement was given for the Plaintiff The same Term in the same Court. Beven versus Cowling IN an Action upon the Case Littleton mooved in arrest of Iudgment for the Defendant wherein the Case was this the Defendant assumed that if the Defendant would defer the payment of a bond in which one A. was bound to him and would not implead him upon it then he promised to pay it and he doth not say that he deferred the payment untill such a day and therefore this is no valuable consideration so that the action doth not lye for notwithstanding Action upon the Case upon a â—romise that if â—e would not sue such a
a Lease made de Burg. sine Tent. which is not good no more then in Ejectione firmae de Mess sive Tent. 2. Because the Judgement is not quod capitur as it ought to be because it is vi armis 3. The judgement is Ideo concessum est where it ought to be consideratus est and for these Errors the Judgement was reversed And the same day another Judgement between Bell and Margery Strongury was reversed for the same causes The same Term in the same Court. Petit versus Robinson IN Error to reverse a Iudgment given in C. B. in a Replevin there Jermy for the Plaintiff assigned two Errors 1. It appears that after the Writ and before the triall it was coram Justiciar Dic. Domini Regis and there was not any speech of any King but of King James before and there is no speech of his demise and therefore this shall be intended before the Iustices of King James which cannot be 2. Because the Nisi prius is certified to be tried before Francisco Harvey Mill. uno Justiciar c. the Postea returned is before Francisco Harvey Arm. argued so there was no such Iudge of Nisi prius as Francis Harvey Banks for the Defendant I conceive the first errors to be because the adjournment was per br Dom. Reg. and King James was named before so that the objection may be that it shall be intended the Writ of Adjournment of King James which cannot be but I conceive the Writ is generall and shall not be intended â—hat it can be adjourned by the Kings Writ who was dead before and the Clerk of the Assises who certified it is bound to take notice of the Kings death 37. H. 6. 28. and also the Record is not per br Dic. Dom. Regis but per br Domini Regis generally And for the second I conceive it is no error and if it be error then if the Certificate be not according to the Copy out of which the Clerke certifies it shall be amended 22. E. 4 22. 35. H. 6. 23. b. Co. lib. 8. 136. Blackmores case which is a stronger case then this But it hath been objected that the Record is certified by the Iustices and now there can be no averment to the contrary but I conceive that this Court may send to the Clark of the Assizes to amend it and those objections were over-ruled in C. B. in the same case Doderidge Iustice I conceive that notwithstanding these exceptions the Iudgement ought to be affirmed for as to the first the Court is bound to take notice of the demise of the King and therefore it shall be intended the King that now is and so the Writ of adâ—ournment good enough in Dyer King Henry 8. made a Patent and it was Eâ—ricus Dei gratia c. where it should be Henricus and yet the Patent good so in a Writ to the Bishop the subscription is Episcop Norw this is good enough for the Bishop of Norwich is very well known And for the other I conceive it is not well alledged because it is not showne whether he were a Knight at the time of the Certificate or not and so it may well stand together that he was a Knight for he might be an Esquire at the time of the triall and before the Record certified might be made Knight Jones Iustice to the same intent and that we ought to take notice of the demise of the King therefore it shall be intended of the Writ of adjournment of the King which now is and therefore it is no error and yet if it were it were amendable Whitlock Iustice agreed and therefore the Iudgement was affirmed by the whole Court The same Term in the same Court. Crabbe and his Wife versus Tooker IN Covenant betweene Walter Crabbe and Anne his Wife against Tooker the covenant upon which the breach was layd was this Tooker the Defendant covenanted with Tooker his Son and Anne Slade one of the Plaintiffs whom he intended to marry to give them their meat and drink in his house and if any discontent should happen between the Father and Son so that he and his Wife Anne should disagree to dwell with Tooker the Father then they should have 6. Beasts gates c. Tooker the Son died Anne disagree to dwell with Tooker the Father and marries with Crabbe who with hâ—s Wife Anne brings this Action and Taylor argued for the Planitiff that the Action lies for albeit the Covenant be in the conjunctive if they disagree yet it shall have a disjunctive interpretation as where a man covenant to levy a fine to one and his heirs if he dies the Covenantor may levy a fine to his Heirs and Hill and Granges case in Plow Two Tenants in common grant a rent this shall be taken for severall Rents and Co. lib. 5. Slingesbyes case also the Wife is party to this covenant and she must either have remedy upon this covenant after the death of her Husband or not at all for she cannot disagree in the life time of her Husband per que c. And it was agreed on the other side that there ought to be a dislike between all joyntly the Father the Son and the Wife and now one of them being dead the covenant is discharged like to the case put in Brudenels case Co. lib. 5. If Administration be grant during the minority of 3 if one of them dies the administration ceaseth and 31. Eliz. in C. B. A Lease was made to three and the Lessor grants to them to be dispunishable of Wast quamdiu cohabitarent one of them dies and it was resolved that now they shall be liable to wast Also the Bar is not bone for it is pleaded that Discordia orta fuit and doth not shew what manner of discord this was and therefore not good as 3 H 6. In Annuity brought Pro concilio c. he ought to shew for what manner of Councel it was Whitlock Justice was of opinion for the Plaintiff and that this Covenant extends to the Wife and that upon equall construction because it comes in place of the first Covenant and this was intended for the benefit of the Wife as well after the death of the Husband as before Jones Justice was of the contrary opinion and that the second covenant was a severall covenant from the first and that the disagreement is to be made by all three joyntly and that when one dies the Covenant is gone 2. Eliz. Dyer A man will that A. B. and C. his Feoffees shall sell his Land B. dies now the Authority is determined The Lord Gray committed the custody of his Son to four one of them dies the authority is gone and in this case there is no matter of interest but an agreement and in such a case as this is a Feme covert hath a will albeit she hath no legall will but in this case there ought to be a disagreement of both and
the Executor of the Lessee shall be Assets 188 Assault and Battery 13 In what case it lieth not against a Constable 13 Assurance 19 Arbitrement 134 Of one part only not good 134 Avowry 163 Authority 1. 194 to enquire upon severall Commissions A joynt Inquisition cannot be returned 94 Averment 28. 158 Not to avoid a Record 29 Wher it must be of Levant Couchant by the party 201. error 201 Award 15 16 B. BAile discharged by death of the Principals 186 How it shall relate 132 In the Kings Bench and the Common Pleas differ 132 When suspended by a Writ of Error brought 186 Bar. 1. 112. 167. 114 Not good for want of traverse è contr 67 68 Void for incertainty 204. 209 Bargain and Sale  By word not good 48 To one and his Heirâ— to the use of another where void 81 Burglary 42. 52. 84 Brief Of entry of an Advowson 22 C. CErtiore 202. Of the names of the Jurors To remove Indictment 144 Chattels 5 Charge 5. 86. 152. 196 Where avoided by entry for a condition broken 50 51 Charitable uses 7. 139 Charters 17 Clergy  Where allowable 52 Claim  Where it determines the Estate 64 è contr 64 Common recovery 6 Of Advowson 23 By Tenant for life a forfeiture 23 Need not be averred 24 is a baâ— of all Rights 10â— Certainty  A thing incertain made certain bâ— matter ex post facto 18â— In performance of Covenants whâ— is to do the first act 19â— Where joynt and severall 20â— 204 Condition 27. 53. 58. to pay money payment shall be upon the Land 11 Repugnant 16. void for uncertainty 99 Given to the King by Attainder 19 Inseparable and not to be transferred 19 Words conditionall 25. 198. 199 Where payment of money in part by fraud shall be no performance of it 100 When to be performed to the Assignee and not to the Heire 100 Taken strictly 104. within convenient time 199 Not to allien and he deviseth if broken 106 Where the word paying is a Condition where a confidence 11 Where discharged by the disability of the party to perform it 110. 198 Confirmation 105 131 cannot enlarge an Estate which is determinable upon a condition 52 Contingency 21 Contribution 155 Constable  his Office and authority 13 Contract 150. 209 Contempts and affronts before Courts of Justice how punished 288 Copyhold 125 Intailed where good where not 34. 129 Granted by Disseisin avoided by the Disseisee 71 Copyholder  Surrender of a Copyhold cannot surrender before admittance 128 Covenant 22. 109. 110. 146. 161. 198 200. 204 Lyeth not against an Executor of a Lessee after Assignment 137 To pay money pro terris and no time limited  Where conditionall and Executory 196 County where chargeable repairing Bridges 192 Counts 25 57 Courts  Ecclesiasticall Court ought to take notice of the Common Law 133 Costs  De incremento must be ad petitionem quaerentis 209 Cui in vita 39. 13 Custome  which layes a burthen upon Parishioners not good 197 D DAy where a precise day must be alledged where not 201 Demand 58 In the Disjunctive 23 Of a Messuage or house how it ought to be 14 15 Of a piece of Land 13 14 Of a Rent at what place 58 Of a Pension 23 Demurrer  No repleader after it 42 Demise of the King to be taken notice of 23 Deodand 136 Departure 3â— Deprivation 37 By the high Commissioners for speaking contumelious words against the Book of Common-Prayer 59 Debt 85. 98. 109. 173. 164 Where maintainable by Granter of the Reversion against the Assign for a Rent arrear 55 Where it lieth not for want of privity of contract ibid. Not maintainable by the Successor of a Prebend for Rent incurred in the time of the Predecessour against an Executor 102 Not for an escape upon a mean process in vit Testator 189. 190 Devise 91. 52. 188 To charitaâ—ble use 6. 7 Upon Trust 7 Of Gavel kind Lands 10 Of a Rent 131 Construed according to the intent of the Devisor 131. 188 Of a summe of money 133 Is an ailenation 107 Dove-cotes 142 Descent of a Copyholder doth not take away Entrie 35 E EJectione firmae  Upon a Lease of a Copyhold 38 Lyeth not of a water course 167 Lyeth for an executor 190. 191 De Messuagio five Tenemento void 203 Election 86. 153. 95 Enfant  Must answer by Guardian but may bring Action by Attorney 130 Chargeable for necessarik 151 Error 24. 100. 102. 111. 109. 193. 114 130. 151. 203. 211 Where it is in the discretion of the Court to allow a Writ of  Error 132 Is. A supersedeas in it self 132 Escape 41. 85. 131 Estates  To two joyntly and severally for their lives they are Tenants in common 52 Determined by death 86 Tail with Fee expectant 138 Where they shall passe by Livery where by Declaration of use 47. 49 Estoppel 115 Exchange 198 Execution one in Execution discharged by word 206 Where the party taken again upon a fresh suit shall be again in Execution 41 Against Terrtenants 152 Executors shall take benefit of a geral pardon 142 Infant Executor may take mony Release and give acquittance 130 What Actions are maintainable by Error 189. 190. 191 Exemplification  not pleadable 151 Exception 1. of Trees 194. 195. Of profits 196 Of Woods Copices the soyle is is excepted 146 Exposition of Statutes  Of Stat. 23. H. 8. of charitable uses 7 Of Stat. 14. Eliz. of Leases to Colledges 9 Of Stat. 13. Eliz of 13. Eliz. of Fugitives 18 Of Stat. 32. and 34. H. 8 of Wâ—lls 89. 90 Of Stat. 27. Eliz. concerning Jesuits 93 Of 8. Eliz. cap 4. 107 Of 29. Eliz. cap. 4. 173 Of 22. H. 8. of reparation of Bridges 192 Exposition of words  Of the word Subject 69 Of the word Twelvemonth 104 Scilicet 201 Postea 291 Extinguishment of a Lease 30 Where a Term or other thing shall be extinguished as to one and in Esse to another 40 By unity of possession where and where not 166 167 168 169 170 171 F FAlsifying Recovery 6 Fees  For serving Executions 174 175 Feoffments 103 Inrolled without Livery not good 8 To uses 3 Fine  Imposed by the High Commissioners 60 Fines levied 62 108. 112 How Proclamations thereupon shal enure 63 by a Disseison where a good bar 65 not construed to other Lands then are mentioned in the Deed which lead the uses 105 Forfeiture 84 105 Of a Copy-holder for not paying his Fine  Of the Office of Leivtenant of a Forrest 117 Formedon 112 Forrests 117. 150 Fraud  added 19 Fugitives 18 Freehold  cannot begin at a day to come 47 Franchises where forfeited by Non-claim 181 G GRants 86 Not voyd by addition of word  Of Ornament 57 Where Acres in a Grant shalâ— be according to Statute Acres or according to Estimation of the place 55 Of the Office of Keepership 116 Where it
shall take effect by Livery where by Jurolist 49 Grants of the King  Where voyd 61 H HEire Where he shall be charged where not 152 153 I JMparlance  Not before a Declaration is entred 150 Imprisonment  Where justifiable 13 Indictments 107 134 210 taken before Coroners Where quashed 202 Upon the Statute of 8. H. 9. of forcible entry of copy-hold Lands 205 Inn-keepers 128 179 may detain a Horse untill he be satisfied for his meat 127 Inquisition  by the Coroner in case of death must bee Super visum corporis per sacramentum proborem legatum hominum where not hood 210 Indiciments  for stopping a Church-way where good 206 For being a Night-walker where good 208 If good in one part shall not be quashed  Joyâ—ture  where it may be waived 88 Joynt-tâ—nants â—6 Justâ—fication 13. 161 Justices of Peace of Gaol delivery and Nisiprius and their power 17 Judgmâ—nts 211. 212 by Nihil dicit 153 Where a Judgment reversed without Errour brought where noâ— 181 Entred in the Book as a Memorandum stayed by a subsequent order of Court 181 L. Lâ—ases 99. 106. 57 Void by Acceptance 9 Where in Reversion good 9 By Tenants for life or years to begin after his death 96 By a Copyholder upon a License 105 Where determined without entry 27. 53. 64. Lessce for life without impeachment â—f Wast may make a Lease excepting the Trees 193 What interest he hath in them ib. Leeâ— 141 Libels  Where a privaâ—e Letter is punishable aâ— a Libell 139 Legacies not payable but upon demand 104 Livery of Seâ—sin 103 Where words spâ—ken upon the 〈◊〉 do amount to a Livery 47 49 Liâ—â—se  〈◊〉 couâ—termandable 151 〈◊〉 a Copâ—holder to make Leaâ—es 150 〈◊〉  〈…〉 by Bargain and Sale by word 48 Lunatick  The Action must be brought in his name 141 M. MAgis dignum continet in se minus 35 Mayhem 115 Market Overt  Where the Sale shall be good where not 48 In a Scriviners Shop of Plate void 84 What kind of Sale alters the property 84 Monstrans of Deeds 113 Melius Inquirendum  Where it shall issue where not and what to be found upon it 54 55 Misnosme 151 In Grains 57 Of a Corporation 58 N. NOtice 37. 151. Of a condition of payment where to be given 12 Taken strongly against the Party 12 Of one Sheriff to another Sheriff of the persons in Execution 85. 86 Where requisite 136. 164 Nusance 166 Errecting a Dove-coat by a Freeholder no Nusance 141 O. OBligation 165. discharged by the act of God 98 not to be avoided by the act of the Obligor himself 40 To the use of a Feme Covert shall go to her Administrator not to the Husband 106 One forfeited revived and good 16 Office and Officers  Where an Office is void Ipso facto 28 Forfeited and by what act 117 Of his own wrong 149 Office Trove 25 26 Where Lands shall be in the King without Office 19 Relates 20 helps the King to the meane profits 30 Countervailes an Entry And where no entry is requisite in case of a common person There needs no Office found for the King 53 Where an Estate shall be devested out of the King without Office 63 Where not 64. without Returne or Monstrans de droit 64 Oyer  Where of a condition where not 202 P. PAtents 16 Where the Patentee shall take advantage of a condition to avoid a Lease 27 Void for the generality in the Grant 61 Void notwithstanding the words Ex certa sciaentia 61 Perjury where not punishable 144 Pleadings 28. 42. 101. 109. 152. 150. 160. 163. 206. Void because double Plea 113. 114 Nul tiel in rerum natura no Plea in appeal of Mayhem 115 Perpetuities 97. not tollerable 80 Plenarty by Induction of a Lay-man 37. Binds not the King 133 Proviso How to be construed 27 For a Limitation 53. 117. 118 119 Where repugnant and void 87 Possessio fratris 35 Principall Accessare 107 Prisoners Must be delivered over at the Gaol 85. 86 Presentation 132 Proofs What Proofs are to be allowed in the Ecclesiasticall Court 59 Priviledges  Grant by the Pope not allowable 157 Prescription 169 For Common for Vicinage good 101 Difference betwixt it and Custome and how to be taxed 201 â—roperty 38 What kind of Sale alters the property 84 â—rohibition 59. 126. 159. 197 For a Seat in the Church 140 Severall Prohibitions in one Cause 156 Prerogative 26 Q. QViâ— juris clamat 63 〈◊〉 warrantâ— 150. 180 Quare Impedit by an Executor for a disturbance in vite Testator 189. 190 191 R. RAvishment of Ward by an Executor 190. 191 Recovery 6. 5 Releaâ—es 28. 132 Exâ—cuted where avoided by Proviso 16 Of all demands will dischaâ—ge a rest in â—uturo 136 Relation 12 Of a Baâ—l 132 Of Entry of Judgement 132 Return of the Sheriff of a Capias upon a day not Dies faci good 205 Request 160. 211. 212 Upon payment upon a Contract is not necessary 211. 212 Remainder 97 in Fee not good upon a Lease for years 4. 82 Must take effect when the particular Estate determines for life wiâ—hout impeachment of Wast whether he may cut Trees duâ—ing the life of Tenant for life 196. 74 Rents  Rent and Pension all one in a Demand in a â—ecovery 23 Where the Executor shall have the rent upon a Lease of the Wâ—ves land 145 Restitution  Of an Alderman to his place 134 Of one put out of his Office 176 Reservatâ—on 145 195. how construed 17 Revivor 167 S. SAvingâ— in an Act of Paâ—liament how construed 17 Scire 〈◊〉  Lâ—es â—â—t against the Bail till a Capiaâ— be awarded of the Principall 186 Seals 161 Scandalum Magnatum 66 Sheriffs Oâ—e Sheriff must deliver over the Prisoners to the other by Indeâ—ture 85. 86 Surplusage  shall not abate a Writ 24 Surrender 9. 31. 84. 110. 125 129 Of the Husband of the land of the Wife no discontinuance 38 39 Of an Infant Copyholder void 39 Of an Alderman of his place 134 Of Tenant for life in remainder good without Deed 137 138 T. TAles  where awarded of Aliens 36 Tender  where not good to avoid a condition 20 Title  where must be made 1 2 Trusts not abridged 8 Their difference from Uses 77 Traverse 1. 101. 103. not necessary where there are two Affirmatives but where they do not agree 67 Traverse upon a Traverse 101 Circumstances not traversable 161 Treason 122 Triall  Of the same person upon another Indictment after Attainder upon a former Indictment 107 Transporting Corn 149 Trespasse 161 Where Vi armis e contr 192 Tithes 140 Where discharged by Prescription or Priviledge 156 De animalibus inutilibus animalibus utrilibus and the difference 197 Of Sheep and their pasturing wool c. 157 V. VErdict 19 void 202 Found for thâ— Deâ—endants because no 〈…〉 â—â—tred for one of them 145 Volenti non fit injuria 9 Use and Uses  What a Use is 71 How to be construed 3 Not to be abridged 8 Void upâ—n a tender 18 Raised by word upon a good consideration where good where not 47 49 Raiâ—ed upon Contracts 48 Considerations to raise Uses 48 49 A bare Covenant writing without consideration will not raise an Use 50 What persons cannot stand seised to Uses 72 Uses contingent not executed by the Statute of 27. H. 8. 72 Uâ—es contingent destroyed by a Feoffment 72 Uses grounded upon fraud 77 Use cannot râ—â—e out of a Uâ—e 81 Uses in contingency barred by a Release of the Feoffees 83 Use upon a Bargain and Sale for years passeth without inrolement of the Deed 38 Use amerced upon a Fine upon render without a Deed 105 W. WAger of Law 127 Words  Where the King shall have a third part of the Land of the Ward and of other land setled upon a marriage 54 Wast 24. 25 47 Damages in Wast 24 Warrants  When a Warrant is returned upon Record in case of the King it is as strong as an Office found 20. 28 29 Warranty  doth bind an Infant if his Entry is not lawfull 71 cannot enlarge an Estate 138 Wills 152 Words which make a condition in Wills 8 Writ  of enquiry of damages 24 Where not abated 24 Originall shall be taken as they are written 101 FINIS
If the Tenant for life had made a Feoffment in Fee and he in the Remainder had released to the Feoffee the Vse had been gone for ever so in all these cases of contingent Vses at this day for he who cometh to the possession of Land by Disseisin or wrong done to the Possessor who is seised to anothers use shall never be seised to anothers use And the case being so that it is out of the letter of the Statute to execute such contingent Vses it is more strong for them out of the meaning of the Statute to execute then before they happen to be in Esse for this shall be to make all mischiefs comprehended in the Preamble of this Statute and against which the Statute intended to provide sufficient remedy in a worse mischief then they were before the making of the same Statute and this shall be but a perverse instruction of the Statute And they said that the subtleties used from time to time by means of those Vses to the great deceit and trouble of the people were the cause of the making of this Statute 27 H. 8. and by all the Statutes formerly made touching Vses it appeareth that they were all taken to be grounded upon fraudulent and crafty devises and therfore this Law had no great purpose to favour them but a Fortiorari not to make them in worse case by means of the Statute then they were before and therfore it shall not be taken that the Vse is executed by the Statute which stands upon a contingency of which a greater mischief will ensue then there was in such a case before the Statute and therfore by the Feoffment made in the interim before the birth of the Infants which otherwise ought to have preserved the Vse this Vse was utterly destroyed and although the Feoffee of Christopher had notice of the Vse yet this doth not now help in the case because the Feoffment did wrong to the Estate first setled which was subject to the Vse and extinct in the same possibility which had been otherwise in the Feoffees to have given livelyhood to the said Contingent Vse And therfore the Iudgment by them ought to be that the Plaintiff shall be barred Walmesley That the great mischief which was at Common Law upon these Feoffments to Uses was that none could know upon the occupation of the Land who was true Owner of the Land for Cestay que Vse was the Pernor of the Profits but in whom the Freehold or Inheritance of the Land was there were not many which knew wherby great mischief came to the assurances which men had of Land which they purchased and by it men knew not against whom to bring their Actions to recover their Rights and by it Wives lost their Dowers Husbands their Tenancy by the Curtesie Lords their Escheats Wardships and the like And this mischief hapned by reason that one had the profit and another the estate of the Land And the Statute was made to put the Land and the Estate quite out of the Feoffee who before did not meddle with the Land to Cestay que Use who before had but the occupation and profits of the Land and to this intent the letter of the Law serves very well which sayes that the Estate of the Feoffee shall be cleerly in Cestuy que Use and therfore nothing by the intent and letter of the Law is now to remain in the Feoffee no more then a Scintilla juris nemor'd in Brents Case in my Lord Dyer Eliz. and the whole Estate in the interim untill the contingent happen shall be in them who have their Vses in Esse and when the Contingent happen the Statute gives place to this Contingent Vse and by the execution therof comes between the Estates before executed and as out of these by the Statute but nothing is now after the Statute in the Feoffees for the purpose of the Statute was as I have said to take away all from the Feoffee for all was devested from him because that betwixt the Feoffor the Feoffee was all the fraud before the Statute and the very letter of the Statute is to extinguish and extirpate the assurances fraudulently made which was alwaies by reason of assurances made between the Estate of the Land in one and the possession therof in another and to cause that now that the Estate shall be to the use where the occupation was before And this Statute was not made to extinguish or discredit Vses but to advance them as by bringing the very Estate in possession to the Vse and by it the trust now taken from all others who were trusted with it before so the Statute doth not condemn the uses but the fraud which was by reason of them before And the Statute being that the Estate Right and Title of the Feoffees shall go to the uses therfore nothing remaineth in the Feoffees but all by authority of Parliament adjudged to be in Cestay que use which is the highest Iudgment that can be given in any Court and the words Stand and be seised at any time refer as well to the future as present uses and the Statute intended as well to help the uses which shall be upon any Contingent as those which are at present for a future or contingent Vse is to be said an Vse according to its nature or quality and it shall be executed according to its quality when it happen And the words are that the Estate which was in the Feoffee shall be in Cestay que use and not the Estate which is and therfore when the use hapneth to be in an instant the Estate which at the first Livery was in the Feoffee to this use shall now be executed in possession to this contingent use albeit it self was altogether executed as I said before in the Vses which were in Esse and if so it followeth that nothing which is done in the mean time by the Feoffee or can be done by any other can prejudice or hurt the execution of this Vse in contingency when the contingency happen And for the case of Brook 30 H. 8. it is plain in paint which is this A Covenant with B. that if B. enfeoff him of three acres of Land in D. that then the said A. and his Heirs and all others seised of such Lands shall stand therof seised to the use of the said B. and his Heirs after which A enfeoffed a stranger of this Land after which B. enfeoffed the said A of the said three acres now the use shall be to the said B. and his Heirs of the said other Land for the Statute so binds the Land to this Contingency when it happens that by no means it can be defeated and this is the cause that Leases made by force of Provisoes comprised in assurances are good and cannot be avoided for the Interests to these Leases is wrought by the first Livery and the Statute atd therfore upon the matter I conceive that Judgment ought