makes a Lease for the Life of the Lessee not warranted by the Statute and dies leaving B. in Remainder his Heir B. let ts for 99 years to commence after the death of the Tenant for Life reserving Rent and then the Tenant for Life surrenders to B. upon Condition and dies B. suffers a Recovery with single Voucher and dies the Lessee for years enters the Heir of B. distrains for the Rent and the Lessee brings a Replevin and upon an Avowry and Pleadings thereupon this Case was disclosed to the Court of Common Bench and Judgment given there for the Avowant and Error thereupon brought in this Court For the Plaintiff in the Error it was Argued That the Lease being derived out of a Reversion in Fee which was Created in A. upon the Discontinuance for Life and the New Fee vanishing by the Surrender of the Tenant for Life for it was urged he was in his Remitter altho' the taking of the Surrender was his own Act that the Lease for years by consequence was become void Again It was Objected against the Common Recovery that the Tenant in Tail and a Stranger which had nothing in the Estate were made Tenants to the Praecipe and therefore no good Recovery Again In case B. were not remitted after acceptance of the Surrender then he was Seised by force of the Tail and so no good Recovery being with single Voucher On the other side it was Argued to be no Remitter because the acceptance of the Surrender was his own Act and the Entry was taken away But admitting it were a Remitter because by the Surrender the Estate for Life which was the Discontinuance was gone and it was no more than a Discontinuance for Life For if Tenant in Tail letts for Life and after grants the Reversion in Fee if the Lessee for Life dies after the Death of the Tenant in Tail so that the Estate was not executed in the Grantee during the Life of the Tenant in Tail the Heir shall immediately Enter upon the Grantee of the Reversion Co. Litt. It seems also to be stronger against the Remitter in this case because 't is not Absolute but only Conditional However the Lease may be good by Estoppel for it appears to have been by Indenture and if the Lessor cannot avoid the Lease the Lessee shall without question be subject to the Rent But it was Objected against the Estoppel that here an Interest passes and the Lease was good for a time As if the Lessee for Ten years makes a Lease for Twenty years and afterwards purchaseth the Reversion it shall bind him for no more than Ten. To which Pemberton Chief Justice said The difference is where the party that makes the Estate has a legal Estate and where a Defeasible Estate only for in the latter a Lease may work by Estoppel tho' an Interest passed so long as the Estate out of which the Lease was derived remained undefeated As to the Recovery it was held clearly good altho' a Stranger that had nothing in the Land was made Tenant to the Praecipe with the Tenant in Tail for the Recompence in Value shall go to him that lost the Estate and being a Common Assurance 't is to be favourably Expounded Et Adjornatur Termino Sancti Hillarij Anno 33 34 Car. II. In Banco Regis Anonymus IN Error upon a Judgment in Ejectione Firmae in the Common Pleas where the Case was That the Bishop of London was seized injure Episcopatus of a Mannor of which the Lands in question were held and time out of mind were demised and demisable by Copy of Court Roll for Life in Possession and Reversion and J.S. being Copyholder for Life in Reversion after an Estate for Life in Ann Pitt and J.N. being seized of the Mannor by Disseisin J.S. at a Court holden for the Mannor in the name of J. N. surrendred into the Hands of the said J.N. the Disseisor Lord to the used of the said Lord. Afterwards the Bishop of London entred and avoided the Disseisin Ann Pitt died and an Ejectment was brought by J. S. And it was adjudged in the Common Bench that he had a good Title and now upon a Writ of Error in this Court the Matter in Law was insisted upon by Pollexfen for the Plaintiff in the Writ of Error That this Surrender to the Disseisor Lord to the Lords own use was good for all the Books agree a Copyholder may Surrender to a Disseisor of the Mannor to the use of a Stranger and why not to the Lords own use As if Lessee for years be ousted and he in Reversion disseised and the Lessee Releases to the Disseisor this extinguishes his Term. Here is a compleat Disseisin of the Mannor by Attornment of the Freeholders without which the Services cannot be gained and the Copyholders comeing to the Disseisors Court and by making Surrenders c. owning him for their Lords tantamounts Serjeant Maynard contra And he insisted that this Surrender was not good for the Disseisor had no Estate in this Land capable of a Surrender for the Copyholder for Life continuing in Possession and never having been ousted there could be no Disssesin of that And he endeavoured to distinguish it from a Surrender to a Disseisor Lord to the use of another for in such Surrenders the Lord is only an Instrument and does but as it were assent and until admittance the Estate is in the Surrenderer And he resembled it to the Attornment of a Tenant when è converso a Seigniory is granted and he put Cases upon Surrenders of Leases that they must be to one that hath the immediate Reversion as an under Lessee for part of the Term cannot Surrender to the first Lessor and he cited a Case of Lessee for years Remainder for Life Remainder in Fee to a Stranger he that had the Fee enfeoffed the Tenant for years by Deed and made Livery and the Conveyance held void for it could not work by Livery to the Tenant for years who was in Possession before and a Surrender it could not be because of the intermediate Estate for Life and it could not work as a Grant for want of Attornment He said it had been commonly received that a Common Recovery cannot be suffered where the Tail is expectant upon an Estate for Life not made Tenant to the Praecipe which he said was true in a Writ of Entry in the Post which are commonly used And the true reason is because such Writ supposes a Disseisin which cannot be when there is a Tenant for Life in Possession But as he said a Common Recovery in such case in a Writ of Right would be good Pemberton Chief Justice said his reason of Desseisin would overthrow Surrenders to the use of a Stranger for if the Possession of the Copyholder would preserve it from a Disseisin then was it pro tempore lopped off or severed from the Mannor and then no Surrender could be at all Et Adjornatur Berry
principium inde One of the Lessees died before the Lease for Life determined whereupon the Lessor brings Covenant for the 3 l and sets forth this Matter in the Declaration To which the Defendant Demurred supposing that the 3 l was not to be paid unless the Death had hapned after the Term had commenced And the Court having heard it spoken to divers times by Counsel on both sides by the Opinion of Twisden Rainsford and Moreton Iudgment was given for the Defendant For all the other Reservations but this were expresly post principium termini and Clauses in Companies are to expound one another as it is said in the Earl of Clanrickard's Case in Hobart It is in the nature of a Rent and Reservation which it is not necessary that it should be Annual And in Randall and Scories Case 1 Cro. such a Duty was distrained for and it shall attend the Reversion Rolls 457. And he that hath but an interesse termini is not to pay the Rent reserved for there is no Term nor no Reversion until it commences If A. lets to B. for 10 years and B. redemises to A. for 6 years to commence in futuro in the mean time this works no suspension of either Rent or Condition The Intention of the Parties is to be taken That it should not be paid until then However Reservations are to be taken most strongly against the Reserver As Palmer and Prowses Case cited in Suffeild's Case 10 Co. is The Reversion of a Lease for years was granted for Life reserving certain Rent cum reversio acciderit a Distress was made for the Rent arrear ever since the Grant Resolved that it was good for no more than was incurred since it fell into possession Keeling Chief Justice held strongly to the contrary For he said the words were so express in this Case that they have left no place for Construction which other Clauses or the Intention of the Parties may direct when the Expression is doubtful He took it for a Sum in gross for Distrained for it could not be being reserved upon the Death of the Lessees or either of them which was also the limitation of their Lease And that Interpretations were not to be made against the plain sense of words He relied upon Edriches Case 5 Co. where the Judges said They would not make any Construction against the express Letter of the Statute yet there was much Equity in that Case to incline them to it And he said As well as a Fine is paid upon the taking of such Lease before it begins why may not something be paid also when their Interest determines And in some Countries they call such Payments A fair Leave Miller versus Ward TRespass for breaking of his Close on the 1st of August and putting in his Cattel The Defendant Iustifies for Common which he prescribes for in this manner viz. That two years together he used to have Common there after the Corn reaped and carried away until it was sown again and the Third year to have Common for the whole year and that that Year the Plaintiff declares for the Trespass was one of the years the Field was own quod post grana messa c. he put in his Cattle absque hoc that he put them in aliter vel alio modo The Plaintiff Demurs which it was Ruled he might for the Defendant doth not answer to the Time wherein the Trespass was alledged and the Traverse will not help it for aliter vel alio modo doth not refer to the time Anonymus AN Administrator brings Debt upon an Obligation The Defendant pleads payment to himself Vpon which it was found for the Defendant Coleman prayed that he might have Costs As where an Executor brings an Action sur Trover and Conversion in his own time and found against him it was Ruled in Atkyes Case 1 Cro. that he should pay Costs and hereof his own knowledge he had no cause of Action the Money being paid to himself But the Court Resolved That there ought to be no Costs in this Case for the Action of Trover in his own time might have been brought in his own Name so it was needless to name himself Executor or Administrator but the Action here is meerly in right of the Intestate Harvey versus James AFter Verdict at the Assizes the Clerk delivered the Postea to the Attorney by whose negligent keeping it came to be eaten with Rats But the Court Examining the Clerk of Assize it appeared that he had Entred the Jurors Names Verdict and Tales in his Book and according to that the Court suffered the Verdict to be entred on Record Anonymus IN an Action of Battery against Baron and Feme the Jury find the Feme only Guilty and not the Baron It was moved in Arrest of Judgment That this Verdict was against the Plaintiff for he ought in this Case to have joyned the Baron only for conformity and he declaring of a Battery by both the Baron being acquitted he hath failed of his Action and so is Yelverton 106. in Drury and Dennys Case But here the Court gave Iudgment for the Plaintiff and said that that in Yelvetron was a strange Opinion Anonymus A Certiorari was prayed to remove an Indictment of Manslaughter out of Wales which the Court at first doubted whether they might grant in regard it could not be tryed in an English Country But an Indictment might have béen found thereof in an English County and that might be tryed by 26 H. 8. cap. 6. vid. 1 Cro. Soutley and Prices Case and Chedleys Case But it was made appear to the Court That there was a great cause to suspect Partiality if the Tryal proceeded in Wales for the Party was Bailed already by the Justices of Peace there which Twisden said it was doubtful whether they had power to do for Manslaughter They awarded a Certiorari and took Order that the Prosecutor should be bound by Recognizance to prefer an Indictment in the next English Country Collect versus Padwell IN Debt upon a Bond to perform an Award which was That one should make a Lease to another before the 21 of October which was 2 or 3 Months after the Award and that the other upon the making of the Lease should pay him 50 l The Question was Whether notice in this Case ought to be given when he would make the Lease for otherwise it was said the other must have 50 l always about him or be in danger to break the Award And it was resolved by the Court That no notice was necessary Noell versus Nelson MIch 21. Car. 2. Rot. 745. Error to Reverse a Judgment given in the Common Pleas where the case was thus Nelson brings Debt against Noel as Executor of Sir Martyn Noel who pleads plene administravit The Plaintiff confesseth the Plea and prayeth Iudgment de bonis Testatoris quae in futoro ad manus Defendentis devenirint and upon a Suggestion of Assets afterwards he
there be not an Entry immediately a Livery within the View is not good and in this case by the Marriage he becomes seised in the Right of his Wife and cannot by his own Act divest himself of that Estate or work a prejudice to his Wife by putting the Estate out of her Which makes it differ from the Case of the 38 E. 3. 11. b. Where a man made Livery of the within View to a Woman and before she Entred married her and claimed the Estate in Right of his Wife there held to be a good Feoffment For in that case there is no Alteration of the Estate consequent upon the Intermarriage Neither is it like the Case of 2. R. 2. quoted in Forse and Hemling's Case in the 4 Co. Where a Woman grants a Reversion to a Man and they Intermarry before Attornment For there the Grant is to be perfected by the Act of a Stranger which in reason should be more available to a man than his own Act. But it was Resolved by all the Court that this Livery was well Executed after the Marriage For an Interest passeth by the Livery in View which cannot be countermanded The effectual part of it viz. Go Enter and take possession was before the Marriage tho' the Estate is not in the Feme while Entry She hath done all on her part to be done and hath put it meerly in the Foffor's power and when he Enters it hath a strong retrospect to the Livery and shall be pleaded as a Feoffment when she was sole If two Women Exchange Lands and one marries before Entry this shall not defeat the Exchange The Cases of 2 R. 2. and 38 Ed. 3. are as strong Emerson versus Emerson TRin. ult Rot. 1389. Error of a Judgment in the Common Pleas in an Action of Trespass by the Plaintiff as Executor upon the Statute of 4 E. 3. De bonis asportatis in vita Testatoris The Plaintiff declared that the Defendant blada crescentia upon the Freehold of the Testator messuit defalcavit cepit asportavit Vpon Not Guilty pleaded a Verdict and Judgment was for the Plaintiff and assigned for Error That no Action lay for Cutting of the Corn for that is a Trespass done to the Freehold of the Testator for which the Statute gives the Executor no Action and while the Corn stands 't is to many purposes parcel of the Freehold So that if a man cuts Corn and carries it away presently tho' with a Felonious intent 't is no Felony Otherwise if he let it lye after 't is Cut and at another time comes and steals it So that it appears for parcel of the Trespass no Action lyes then entire Damages being given as well for the Cutting as Carrying away the Corn the Judgment is Erroneous But all the Court were of another Opinion 9 Co. 78. for 't is but one entire Trespass the Declaration only describes the manner of Taking it away Indeed if it had been quare clausum fregit blada asportavit it had been naught or if he had Cut the Corn and let it lye no Action would have lain for the Executor So if the Grass of the Testator be Cut and carryed away at the same time because the Grass is part of the Freehold but Corn growing is a Chattel The Statute of 4 Ed. 3. hath been always Expounded largely Mr. Amhurst's Case of Grays-Inn SErjeant Maynard moved for a Mandatory Writ to the Mayor and Court of Aldermen of London upon the Statute of 13 Car. 2. c. 11. to give Judgment according to the late Act of 22 nunc Regis The Case was That the Act appoints a Market to be on certain Ground set out in Newgate-Market and in all such cases for the satisfaction of the Owners of the Ground if the City cannot agree with them for it it Impowers the Mayor and Aldermen to Empannel a Jury who shall Assess and Adjudge what satisfaction and recompence shall be given to the Owners and says That the Verdict of such Jury on that behalf to be taken and the Judgment of the said Mayor and Court of Aldermen thereupon and the Payment of the Money so awarded or adjudged c. shall be binding and conclusive to and against the Owners c. Now there was Fifteen thousand Foot of Amhurst's Ground taken away for this purpose and a Jury had been Empannelled and had assessed and awarded him Two shillings a Foot but the Mayor and Court of Aldermen refused to give Sentence or Judgment thereupon This says he is a Ministerial thing and this Court will interpose when any Officers will not do Iustice or will out-go their Authority For there is the same Reason to command to do Justice as to prohibit Injustice A Bishop of Exon had Fallen-out with a Town in Cornwal and denyed them Chrisme and a Mandamus went hence to command him to give it them Mr. Noy brought in a Copy of it Sir William Jones This somewhat resembles a Procedendo ad Judicium this is stronger than the Case of commanding a Bishop to grant Administration there this Court commands them to observe a Statute tho' it be in a Matter this Court has no Cognizance of We can't have an Action on the Case Hale If they don't make you Satisfaction your Interest is not bound Maynard But that is taken away by the same Act Pag. 143. 4. We are Lessee to â—he Dean and Chapter of St. Pauls Hale 'T is not Enacted That they shall give Judgment but that is implyed I never knew a Writ commanding to grant Administration tho' the Opinion has been so Sir William Jones That was done in Sir G. Sandy's Case after great Debate Then a Rule was made to shew Cause why a Writ should not go Afterwards the Court granted a Writ but willed them to consider well of the Form and to whom to direct it Loyd versus Brooking TRin. ult 1046. The Case was Tenant for Life Remainder to his first Son in Tail Remainder to J. S. for Life Remainder to his first Son in Tail c. Tenant for Life after the Birth of his first Son accepts a Fine from J. S. to certain uses and then makes a Feoffment after which the Son of J. S. is Born and whether his Contingent Remainder were destroyed or should vest in him was the Question And it was Resolved by the whole Court upon the first Opening that the Contingent Remainder was not destroyed the acceptance of the Fine displaced nothing the Feoffment divested all the Estates but the Right left in the first Son in Remainder supported the Contingent Remainders My Lord Coke's Case 2 Rolls 796 797 is stronger He Covenanted to stand seised to the use of himself for Life Remainder to his Wife for life Remainder to his Daughter for Life when born Remainder to her first Son in Tail And minding to disturb the arising of the Contingent Estates attempted it by these two Means First He grants the Reversion and in the
the Earl of Warwick and the Earl of Manchester or the major part of them And in case she Marries without such Consent or happen to dye without Issue then I give and bequeath it to George Porter viz. the Lessor of the Plaintiff The Earl of Newport dies and the Lady Anne Knolles being of the Age of 14 years marries with Fry without the Consent of her Grandmother or either of the Earls and it was found that she had no Notice of the Will until after the Marriage and that George Porter at that time was of the Age of 8 years and that after the Death of the Countess she Entred and George Porter Entred upon her and made the Lease to the Plaintiff This Case having been twice Argued at the Bar viz. in Michaelmas Term by Sir William Jones for the Plaintiff and Winnington for the Defendant And in Hillary Term last by Finch Attorney General for the Plaintiff and Sir Francis North Solicitor General for the Defendant It was this Term Resolved by the Court viz. Hale Twisden and Rainsford Moreton being absent for the Plaintiff upon these Reasons Rainsford Here have been three Questions made First Whether the words in the Will whereby the marriage of the Defendant is restrained make a Condition or Limitation If a Condition then none but the Heir can Enter for the Breach But 't is clear that they must be taken as a Limitation to support the intent of the Devisor and to let in the Remainder which he limits over 1 Rolls 411. Secondly Whether the Infancy of the Defendant shall excuse her in this Breach and clearly it cannot For a Condition in Deed obliges Infants as much as others 8 Co. 42. Whittingham's Case the difference between Conditions in Fact and Conditions in Law Especially in this Case the nature of the Condition shewing it to be therefore imposed upon her because she was an Infant Thirdly and the main Point of the Case Whether the want of Notice shall save the Forfeiture of the Estate As to that Let the Rules of Law concerning Notice be considered First I take a difference where the Devisee who is to perform the Condition is Heir at Law and where a Stranger The Heir must have Notice because he having a Title by Discent need not take notice of any Will unless it be signified to him And so is Fraunce's Case 8 Co. Where the Heir was Devisee for 60 years upon Condition not to disturb the Executor in removing the Goods and Resolved that he should not lose his Estate upon a Disturbance before he had Notice of the Will But where the Devisee is not Heir as in this Case he must inform himself of the Estate devised to him and upon what terms Another Rule is When one of the Parties is more privy than the other Notice must be given but where the Privity is equal Notice must be taken by the party concerned A Bargainee shall not Enter for a Condition broken before Notice for the Bargain and Sale lies in his Cognizance and not the Lessees So if a Lease be made to commence after the end of the former if the first be surrendred the Lessor shall not Enter for a Condition broken for Non payment of Rent until Notice given of the Surrender 3 Leon. 95. And therefore there shall be no Lapse to the Ordinary upon a Resignation without Notice If a man makes a Feoffment upon Condition to Enter upon payment of such a Sum at a place certain he must give Notice to the Feoffee when he will tender the Money Co. Lir. 211. a. Dyer 354. And upon this Reason is Molineux's Case 2 Cro. 144. where a Devise was that his Heir should pay such Rents and if he made default then his Executors should have the Lands paying the said Rents and if they failed of Payment then he devised the Land to his younger Children to whom the Rents were to be paid It was Resolved Non-payment by the Executors should be no Breach until they had Notice that the Heir had failed which was a thing that the younger Children must be privy to But in 22 E. 4. 27 28. Tenant for Life Lets for years and dies the Lessee must remove in convenient time to be reckoned from the death of the Tenant whether he had Notice of it or no For he in Reversion is presumed to be no more privy to it than himself So Gymlett and Sands's Case 3 Cro. 391. and 1 Rolls 856. where Baron and Feme were Tenants for Life Remainder to the Son in tail Remainder to the right Heirs of the Baron the Baron makes a Feoffment with Warranty and dies then the Feme and Son joyn in a Feoffment this is a Forfeiture of the Estate of F. tho' she had no Notice of the Feoffment or Warranty whereby the Right of the Son was bound So Spring and Caesar's Case 1 Rolls 469. A. and B. joyn in a Fine to the use of A. in Fee if B. doth not pay 10 l to A. before Michaelmas and if he doth then to the use of A. for Life Remainder to B. B. dies before Michaelmas the Heir of B. is bound to pay the 10 l without any Notice given by A. The Reason given which comes home to our Case is For that none is bound to give Notice and then it must be taken tho' indeed a second be added For that B. from whom his Heir derives had Notice The Mayor and Comminalty of London aganst Atford 1 Cro. where a Devise was to six Persons to pay certain Sums for the Maintenance of an Almshouse c. and if through Obliviousness or other Cause the Trusts were not performed then to J. S. upon the same Condition and if he failed by two Months then to the Mayor and Comminalty of London upon the same Trusts The six did not perform the Trusts J.S. enters J. N. enters upon him and a Fine with Proclamations was levied and Five years passed and the better Opinion was that the Mayor and Comminalty of London were bound to pay the Money appointed by the Will altho' they had no Notice that the six persons or J. S. had failed tho' indeed the Case is adjudged against them as being barred by the Fine and Non-claim Sir Andrew Corbet's Case 4 Co. is very strong to this purpose where a Devise is to J. S. until he shall or may raise such a Sum out of the Profits of the Land If a Stranger Enters after the death of the Devisor tho' the Devisee had no Notice of the Will yet the time shall run on as much as if he had the Land in his own possession These Rules being applied to the present Case it will appear no Notice is to be given First The Defendant is as privy to the Will as any one else viz. as George Porter who is found also to be an Infant It is not found whether there were any Executors if it had they were not concerned to give Notice nor did it
c. be indicted for not repairing of a Way within their Precinct they cannot plead Not guilty and give in Evidence that another by Prescription or Tenure ought to repair it for they are chargeable de communi Jure and if they would discharge themselves by laying it elsewhere it must be pleaded Error ERror to Reverse a Judgment in Debt upon a Bond given in Norwich Court where by the Custom the plea of the Defendant was quod non dedicit factum sed petit quod inquiratur de debito First It was moved to be Error for that the Venire was XII Men c. in figures Sed non allocatur for being in these letters XII and not in the figures 12. it was well enough Secondly It was ad triandum exi tum whereas there was no Issue joyned wherefore it ought to have been ad inquirend ' de debito c. Sed non allocatur for the Presidents are as the Case is here Thirdly The Condition of the Bond was to pay at Alborough and that ought to have been shewn to be within the Jurisdiction of the Court Sed non allocatur for the Plea here is not payment secund ' formam Conditionis but the Jury is to inquire by the custom of all manner of payments and discharges Fourthly In the Record it was continued over to several Courts and in the Court where the Judgment is given 't is said in Curia praedicta and so incertain which but notwithstanding these matters the Iudgment was affirmed Anonymus THe Case upon Evidence at a Tryal in Ejectment was this a Dean and Chapter having a right to certain Land but being out of Possession Sealed a Lease with a Letter of Attorney to deliver it upon the Land which was done accordingly and held to be a good Lease for tho' the putting the Seal of a Corporation aggregate to a Deed carries with it a delivery yet the Letter of Attorney to deliver it upon the Land shall suspend the operation of it while then Tenant for Life being in Debt to defraud his Creditors commits a Forfeiture to the end that he in Reversion may enter who is made privy to the contrivance The Opinion of Hale was that the Creditors should avoid this as well as any fraudulent Conveyance Anonymus IN an Ejectment upon a Tryal at Bar for Lands in antient Demesne there was shewn a Recovery in the Court of antient Demesne to cut off an Entail which had been suffered a long time since and the Possession had gone accordingly But there was now objected against it First That no sufficient Evidence of it appeared because the Recovery it self nor a Copy of it was shewn for in truth it was lost But the Court did admit other proof of it to be sufficient and said if a Record be lost it may be proved to a Jury by Testimony as the Decree in H. 8. time for Tythe in London is lost yet it hath been often allowed that there was one Secondly It appeared that a part of the Land was leased for Life and the Recovery with a single Voucher was suffered by him in Reversion and so no Tenant to the Praecipe for those Lands But in regard the Possession had followed it for so long time the Court said they would presume a Surrender as in an Appropriation of great Antiquity there has been presumed a Licence tho' none appeared Thirdly It was objected That the Tenant in Tail which suffered the Recovery having first accepted of a Fine sur Conusans de droit come ceo his Estate Tail was changed for he was estopped during his Life to say that he had any other Estate than Fee then he being made Tenant to the Praecipe the Recovery was not of the Estate Tail and so should not bind But the Court held clearly that the acceptance of this Fine made no alteration of his Estate If Tenant for Life accepts such a Fine 't is a Forfeiture because he admits the Reversion to be in a Stranger but it does not change his Estate so where two joynt-Joynt-tenants in Fee accept a Fine which is to the Heirs of one of them yet they continue Joynt-tenants in Fee as they were before Fourthly The Writ of Right Close did express the Land to lie in such a Mannor and a Praecipe that demands Land ought to mention the Vill in which they lie for a Praecipe of Land in Parochia or in Manerio is not good But this exception was disallowed by the Court for Hale said the Writ of Right Close is directed Ballivis Manerij c. quod plenum rectum teneant of the Land within the Precinct of the Mannor and it is not to be resembled to another Praecipe But if a Praecipe be faulty in that Point unless exception be taken to it in Abatement it cannot be assigned for Error but if it were Erroneous the Recovery would bind until reversed Note After Judgment quod computet tho' it be not the final Judgment yet no motion is to be admitted in Arrest of Judgment and after such Judgment a Scire facias lies against the Executor of the Defendant Note In an Action of Debt against the Lessee he may plead nil debet and give the expulsion in Evidence Anonymus IN an Assumpsit the consideration appeared to be that the Defendant promised to pay a Sum of Money which he owed this is no good consideration tho' after a Verdict unless it appeared that the Debt was become remediless by the Statute of Limitations but payment of a Debt without Suit is a good consideration Anonymus A Justice of the Peace brought an Action of Slander for that the Defendant said He was not worth a Groat and that he was gone to the Dogs and upon motion in Arrest of Judgment notwithstanding that it was urged to maintain it that the Statute of H. 6. requires that a Justice of Peace should have 40 l a year And therefore in regard an Estate was necessary to his Office that the Action would lie yet the Judgment was stayed for such words will not bear an Action unless the person of whom they are spoken lives by buying and selling Anonymus IT was returned upon Elegit that the Sheriff had delivered medietatem Terrar ' Tenementorum in extent and after the Filing and Entry of it upon the Record the Plaintiff moved to quash it because it was insufficient for the Sheriff ought upon such Execution to deliver the Possession by Metes and Bounds Wild held that it being entred upon the Record there was no avoiding of it but by Writ of Error But Hale held that in regard it appeared by the Record to be void it might be quashed as if upon an Ejectment to recover Possession upon such a return it appears upon the Evidence that there was more than the half the Land delivered this shall be avoided So if a Fieri facias be not warranted by the Judgment upon which it is awarded tho' the Sheriff shall be
redd ' unius anni mediet ' redd ' unius anni per quem talia terrae vel tenementa sic alienat ' tent ' fuer ' in Manerio praed ' nomine finis pro alienatione and lays a Custom to distrain for the said Alienation Fine and then sets forth an alienation of the said Messuage and Premisses by the said Sir John Sabin to one Walter Tyndall in fee and shews that the said Walter Tyndall made another alienation in fee to one Christopher Yates and so sets forth that there were two Fines due upon the said alienations after the rate aforesaid amounting to 18 l 7 s and 7 d ob and that he as Bayliff of the said Dean and Chapter captionem praed ' bene cognoscit in praed ' loco in quo ut in parcell ' tenement ' praed ' To this the Plaintiff demurred and it was spoken to at the Bar the last Term and likewise this Term The main thing was that the Custom as it was laid was not good for the Alienation Fine is set forth to be due upon the Alienation of any parcel of Lands or Tenements held of the said Mannor to have a year and halfs Rent by which the Lands or Tenements so aliened were held so that if the 20th part of an Acre be aliened a Fine is to be paid and that of the whole Rent for every parcel is held at the time of the alienation by the whole Rent and no apportioning thereof can be but subsequent to the Alienation and this the whole Court held an unreasonable Custom and it is set forth it could not be otherwise understood than that a Fine should be due viz. a year and halfs Rent upon the Alienation of any part of the Lands held by such Rent The Court doubted also whether the Custom was good as to the claiming an Alienation Fine upon an Alienation for Life because by that the tenure of the Lands aliened is not altered for the Reversion is still held as before by the same Tenant Judicium pro Quer ' Colley versus Helyar IN an Action of Debt for 34 l the Plaintiff declared against the Defendant an Attorney of this Court praesente hic in Cur. in propria persona sua upon a Bond of 34 l The Defendant pleads in Bar quoad quinque libras sex solid tres denar of the aforesaid 34 l that the Plaintiff post confectionem Scripti Obligat ' praedict ' scilicet vicesimo c. anno c. ê‘ quoddam Scriptum suum acquietantiae cognovisset se accepisse habuisse de praed Defendente 5 l 6 s and 3 d in part solutionis majoris summae and pleaded a frivolous Plea as to the rest of the Mony to which the Plaintiff demurred And it was argued that the Acquittance under the Plaintiffs Hand and Seal for 5 l 6 s and 3 d part of the Mony due might have been pleaded in bar of the whole and that if the Defendant here had relied upon it it would have barred the Plaintiff of the whole Vide for that matter Hollingwoth and Whetston Sty 212. Allen 65. Beaton and Forrest Note there the payment was since the Action brought and pleaded in abatement where it was said that it could not be so pleaded without an Acquittance Vide Kelw. 20. 162. 3 H. 7. 3 B. receipt of parcel pending the Writ 7 Ed. 4. 15. a. But it seems clear by the Book of Edw. 4. 207. Mo. 886. Speak versus Richards That if part be received and an Acquittance given before the Action it is a Bar only of so much but it seems the Action must be brought for the whole Dickman versus Allen. Cantabr ' ss Case brought against the Defendant for not folding his Sheep upon the Plaintiffs Land according to Custom The Colledge of St. Mary and St. Nicholas seized in Fee jâ—re Collegii ABRAHAMUS ALLEN nuê‘ de Grancester in Com' praedicto Yeom ' attach ' fuit ad respondend ' Roberto Dickman Gen ' de placito transgr ' suê‘ Casum c. Et unde idem Robertus per Robertum Drake Attorn ' suum queritur quare cum Praepositus Scholares Collegii Regalis Beatae Mariae Sancti Nicholai in Cantabr ' in Com' praed ' seisit ' fuissent de uno Capitali Messuagio cum pertinen ' in Grancester in Com' praedicto ac de centum sexaginta acris terrae arrabil ' jacen ' in Communibus Campis de Grancester praedicta cum pertinen ' in dominico suo ut de feodo in jure Collegii sui praedicti iidemque Praepositus Scholares omnes ill quorum statum ipsi habuer ' de in tenementis praed ' cum pertinen ' a tempore cujus contrarii memoria hominum non existit habuer ' habere consuever ' ê“ se Firmariis Tenentibus suis eorundem A Custom for all the Tenants to sold their Landlords Land Tenementorum cum pertinen ' libertatem Faldagii Anglicê Foldage omnium Ovium Ovibus suis ê“priis Ovibus tenen ' occupatorum ê“ tempore existen ' quorundam Messuagiorum Terrarum in Villa de Coton in Com' praed ' qui a tempore cujus contrarii memoria hominum non existit respective usi fuer ' Common of Vicinage intercÌ„oiare causa vicinagii in quibusdam Communibus Campis de Grancester praed ' cum Ovibus suis in super praed ' Messuagiis terris suis in Coton praed ' Levant and Couchant levan ' cuban ' except ' suor ' depascen ' infra Communes Campos territoria de Grancester praedicta a vicesimo quinto die Martii usque primum diem Novembris quolibet anno suê‘ praedictas centum sexaginta acras terras arabil percipiend ' From such a day to such a day faldand ' tanquam ad tenementa praedicta cum pertinenciis pertinen ' praedictisque Praeposito Scholaribus Collegii praed ' de Tenementis praedictis cum pertinen ' The Principal and Scholars demise to the Plaintiff by Indenture in forma praedicta seisit ' existen ' Praepositus Scholares postea scilicet decimo nono die Octobris Anno Domini millesimo sexcentesimo octogesimo primo apud Grancester praedictam quodam Johanne Coppleston Sacrae Theologiae Professor ' adtunc Praeposito Collegii praedicti existen ' ê‘ quandam Indenturam inter ipsos Praepositum Scholares ex una parte quendam Johannem Wittewronge Mil Barronet ' ex altera parte factam cujus alteram partem Sigillo cÌ„oi ipsorum Praepositi Scholarium signat ' idem Robertus Dickman hic in Cur ' profert cujus dat' est eisdem die anno dimiser ' ad firmam tradider ' eidem Johanni Wittewronge Tenementa praedicta cum pertinen ' Habendum habend ' occupand ' praefat ' Johanni Assign ' suis a tempore confectionis Indenturae illius usque plenum finem terminum viginti
of the Crown so 11. and so it was held in the Case of the Earl of Essex in Queen Elizabeths Time and in the Lord Cobham's Case in the Reign of King James the First And the Chief Justice cited the Statute made 29 H. 6. cap. 1. upon the Rebellion of Jack Cade which Act sets forth that John Cade naming himself John Mortimer falsly and traiterously imagined the Death of the King and the destruction and subversion of this Realm in gathering together and levying of a great Number of the King's People and exciting them to Rise against the King c. against the Royal Crown and Dignity of the King was an Overt act of imagining the Death of the King and made and levied War falsly and trayterously against the King and his Highness c. So that it appears by that Act that it was the Iudgment of the Parliament That gathering Men together and exciting them to Rise against the King was an Overt Act of Imagining the Death of the King Vide Stamford's Pleas of the Crown fo 180. And according to this Opinion Judgment was given against Harding in the following Sessions and he was Executed thereupon NOta At an Adjourned Sessions held the 19th of May 2 Willielmi Mariae it appeared that one of the Kings Witnesses which was to be produced in an Indictment for Treason had been the day before Challenged to Fight by a Gentleman that it was said was a Member of the House of Commons he was by the Court bound in a Recognizance of 500 l to keep the Peace And because it appeared the Witness had accepted the Challenge he was bound in the like Sum. NOta Vpon an Appeal to the House of Lords Anno 2 Willielmi Mariae the sole Question was Whether upon the Statute of Distributions 22 23 Car. 2. the half Blood should have an equal share with the whole Blood of the Personal Estate And by the Advice of the two Chief Justices and some other of the Judges the Decree of the Lords was That the Half Blood should have an Equal share Samon versus Jones IN an Ejectment brought in the Court of Exchequer in the year of the Reign of the late King James the Second The Case upon a Special Verdict was to this effect William Lewis seised of a Reversion in Fee expectant upon an Estate for Life did by Deed Poll in Consideration of Natural love and affection which he had to his Wife and Robert Lewis his Son and Heir apparent begotten on the Body of his said Wife and to Ellen his Daughter give grant and confirm unto the said Robert Lewis the Son all those Lands c. the Reversion and Reversions Remainder and Remainders thereof To have and to hold to his Son and his Heirs to the Vses following viz. to the use of himself for Life and then mentioned several other Vses not necessary to be here mentioned as not material to the Point in question and then to the use of the Wife for Life and after to the use of Robert and the Heirs of his Body and for want of such Issue to the use of Ellen the Daughter and the Heirs of her Body c. William Lewis and his Wife died Robert the Son devised the Estate to the Lessor of the Plaintiff and died without Issue Ellen was in possession and claimed the Lands by this Deed in which thâ—re was a Warranty but no Execution of the said Deed further than the Sealing and Delivery was had either by Enrolment Attornment or otherwise So that the sole Question was Whether this Deed should operate as a Covenant to stand seised or be void And it was Adjudged to amount to a Covenant to stand seised in the Court of the Exchequer And upon a Writ of Error brought upon the Statute of Ed. 3. before the Commissioners of the Great Seal and others empowered by that Act to sit upon Writs of Error of Judgments given in the Court of Exchequer the said Judgment was Reversed by the Opinion of Holt Chief Justice of the Kings Bench and Pollexfen Chief Justice of the Common-Pleas And upon a Writ of Error before the Lords in Parliament brought upon the said last Judgment it was Argued for the Plaintiff in the VVrit of Error That this should enure as a Covenant to stand seised to the use of the Wife Son c. It appears by Bedell's Case in the 7 Co. and Foxe's Case in the 8 Co. that the words proper to a Conveyance are not necessary but ut res magis valeat a Conveyance may work as a Bargain and Sale tho' the words be not used so as a Covenant to stand seised tho' the word Covenant is not in the Deed and and Poplewell's Case were cited in 2 Roll. Abr. 786 787. A Feme in Consideration of a Marriage intended to be had between her and J. S. did give grant and confirm Lands to J.S. and his Heirs with a Clause of VVarranty in the Deed which was also Enrolled but no Livery was made It was Resolved to operate as a Covenant to stand seised Vide Osborn and Churchman's Case in the 2 Cro. 127. which seems contrary to that Case but the chiefest Case relied upon was that of Crossing and Scudamore Mod. Rep. 175. where a man by Indenture bargained sold enfeoffed and confirmed certain Lands to his Daughter and her Heirs and no Consideration of Natural Love or Money exprest This was Resolved 22 Car. 2. in B.R. to operate as a Covenant to stand seised and upon a Writ of Error in the Exchequer Chamber the Judgment was affirmed It was said on the other side for the Defendant That the Case at Bar differed from the Cases cited for here the Intention of the Deed is to transfer the Estate to the Son and that the Vses should arise out of such Estate so transferred In the Cases cited no Vses are limited upon the Estate purported or intended to be Conveyed but only an Intention appearing to convey an Estate to the Daughter in Crossing's Case and to the intended Husband in Poplewell's Case and seeing for want of due Execution in those Cases the Estate could not pass at Law it shall pass by raising of an Vse But the Case at Bar is much the same with the Case of Hore and Dix in Siderfin the 1st Part. 25. where one by Indenture between him and his Son of the one part and two Strangers of the other part in Consideration of Natural love did give grant and enfeoff the two Strangers to the use of himself for Life Remainder to the Son in Tail c. and no other Execution was three than the Sealing and Delivery of the Deed this was Resolved not to raise an Vse for the Vse was limited to rise out of the Seisin of the Strangers who took no Estate Vide Pitfield and Pierce's Case 15 Car. 1. Marche's Rep. 50. One gave granted and confirmed Lands to his Son after his Death this Deed had been
to be done where there has been only a right of Action as in Sawle and Clerke's Case in Jones 211. and Cro. Car. where the Case as to this Point is to this effect A Remainder upon an Estate Tail was divested by the Fine of Tenant in Tail who had made an Estate for Life warranted by the Statute and died without Issue He in the Remainder was barred from bringing a Formedon in the life of the Tenant for Life within Five years after the Fine and had not a new Five years after the death of Tenant for Life tho' he could not Enter in the life of the Tenant for Life And the Reason given in Crook's Reports is because he had no other Right after the Death of the Tenant for Life than he had before and this plainly distinguisheth that and the Case at the Bar from the Cases that have been cited of June and Smye's Case in the 1 Cro. 219. and Laund and Tucker 254. for there the Fine was Levied by the particular Tenant which was a Forfeiture which he in Reversion might choose whether he would take advantage of and as the case might be it would be to his prejudice to take advantage of it where the particular Tenant has charged the Land and therefore if he would he should have Five years after the Estate determined to claim as of his Reversion which is another distinct Right from that of the Forfeiture And this was the standing difference that made the distinction where there should be a new Five years given to him in Reversion after the particular Estate determined and where not as we see in Margaret Podgers Case in the 9 Co. 106. If the Tenant for years were ousted and a Fine levied by the Disseisor he in the Reversion was bound by the first Five years Non-claim because tho' he could not enter as if the Estate for years had been determined or as in the Cases before of the Forfeiture yet he might have immediately brought an Assize with which Sawl and Clarke's Case exactly agrees and goes upon the same Reason As for Freeman's Case the Resolution goes wholly upon the Circumstances of Fraud appearing in the Case the principal of which was That the Lessee continued in possession and paid the Rent I confess they have gone a little further of late and now it is taken That he in Reversion shall have Five years after the Term is ended by effluction of Time tho' there were no Forfeiture incurred at the Levying of the Fine Nor no such plain Circumstances of Fraud as appears in Fermer's Case and the Case put before and cited out of Margaret Podgers Case is not held to be Law The contrary whereof is taken to have been Resolved in Folley and Tancred's Case in the 24 Car. 2. and I do not intend to shake the Authority of that Case but admit it to be good in Law yet I crave leave to observe That it is a Resolution carried beyond the words of the Statute for the Right is not pursued within Five years next after it first came For it is agreed in Fermer's Case fo 79. that there the Construction was against the Letter of the Statute and I must say it is a Construction by Equity which is a little extraordinary to weaken the force of a Statute which was made for the quieting of mens Possessions and to add force to Fines which were of so great regard in Law and especially to make a Construction by Equity contrary to the Reason of the Common Law which took no care of a future Right at all for he in the Reversion in case of a Fine Levied at the Common Law depended wholly upon the Entry or Claim of the particular Tenant and in default of that lost his Estate as in the 1 Inst 262. b. and in Plowden's Commentaries in Stowell's Case I say again I do not design by this to oppose any Case that hath been setled But I confess I should not have gone so far if I had not been led by Authority and am not willing to go a step further And now I shall endeavor to shew that this Case goes a great deal further and would be a greater strain upon the Statute than yet has been And First I Observe that upon all or most of the Cases of a Fine where there has been an Estate for Life or Years in being at the time of the Fine that the Possession has held still in the particular Tenant so that he in Reversion had no reason to suspect any Fine or other thing done upon the Estate there being no alteration of the Possession And this agrees somewhat with the Reason of the Common Law in case of a Fine Executory he that had Right was not bound to claim till there were an Execution of the Fine and Transmutation of the Possession thereupon as in Plowden's Commentaries 257. b. in Stowell's Case But here it is found that the Conusor and not the Conusees or the Tenants by Extent or either of them were in possession so that the Land being in the possession of a Wrong-doer they which had Right ought to have watched and might well suspect that Fines should be Levied to the prejudice of their respective Rights It is said in Fermer's Case If a meer Wrong-doer having got the Possession levieth a Fine on purpose to bind the Right this shall bind notwithstanding his unjust Design But the Differences that I chiefly rely upon to distinguish the Case before us from the Cases of Reversions upon Estates for Life and Years or the like particular Estates are these 1. That in those Estates there is either by an express Limitation of the Parties or an operation of Law a certain and particular Term or End of the Estate which until it happens it has not its proper determination which an Estate by Extent has not I know it is has been much insisted on that the natural and proper determination of an Extent is satisfaction by a perception of Profits according to the extended Value whereas I cannot see but a release of the Debt or satisfaction by a sudden Accident is as properly a determination of the Extent as if it were run out by perception of Profits according to the extended Value For when the first Extent is out of the way the second is immediately to take place or why this acknowledging Satisfactoin on Record should be the natural and proper determination of the Extent more than a Release of the Debt by the Conusee or destroying of it by a Fine which is an higher Record than the Statute or the Entry of Satisfaction acknowledged thereupon 2. To let him that has the Reversion upon an Estate by Extent have Five years to claim after the first Extent run out by perception of Profits or Satisfaction acknowledged is to let in a Claim after an Estate that no man can see to the end of For when it shall be satisfied by the Profits no man can tell and can
the Defendant shew Cause why he should not accept of a Declaration upon payment of Costs Termino Paschae Anno 22 Car. II. In Banco Regis Anonymus IF there be several Contracts between A. and B. at several times for several sums Prohibition each sum under 40 s and they do all amount to a sum sufficient to Entitle the Superiour Court they shall be there put in Suit and not in a Court which is not of Record And so it was resolved in the Case of the Savoy Court and Stanford 24. C. 2. Also it was said That if a Man at divers times Steals things all which amount to above 12d 't is Felony Capital In an Account after a Quod computet the Court Assigns Auditors and they sit upon and return the Account when they will for day is not given them and they give the Parties in the interim what time they please but if the Defendant delays they return it to the Court and Process goes out against him Nota Memorandum On Tuesday April the 26th Steven Mosdel to whom Mr. Lenthal had granted the Office of Marshal of the Kings-Bench for life was sworn Marshal The Oath was this Viz. You shall swear that during the time of your being Marshal you shall well and truly use exercise and behave your self in the said Office you shall encrease no Fees and in all things shall do your Duty in the said Office c. It was resolved That the said Stephen Mosdel could not afterwards practise as an Attorney of this Court and that Mr. Lenthall Marshall in Reversion had no Priviledge Anonymus A Promise was made to give 1000 l to one for curing of his Eyes and an Assumpsit is brought Vpon this the Jury may give less than 1000 l Damages if they think fit Sir W. Mewes versus Mewes A Title of Land was tryed out of the proper County upon a feigned Wager Whether well conveyed or no this is the Course of Issues directed out of Chancery Note In this Case a Bill in Chancery was given in Evidence against the Complainant though held to be but of slight moment Smiths Case SMith and other Commissioners of Sewers which sate at White-Chappel were brought in upon an Attachment awarded against them for a Contempt of this Court. And the Case was thus A Certiorari was lately sent and delivered to them out of this Court upon Special direction and recommendation by the King and Council before whom the Business had been agitated to remove hither Certain Orders and Proceedings of theirs in order to a Tryal of the Right of the Matter in Question At first they did not allow the Certiorari but afterwards having allowed it they proceeded de novo upon the same Matter and made an Order again which certain persons being the same persons who procured the Certiorari refusing to obey the Commissioners fined them 10 l apiece Then a second Certiorari was taken out and delivered to them after which they imprisoned persons for not executing and obeying of a Warrant made upon their second Order and for speaking Contemptuous words of the Commissioners and fined them 5 l apiece Being now questioned by the Court concerning these Contempts and Misdemeanours They said they did this wholly by the advice of their Counsel Mr. Ofley who being in Court received a severe Reprimand therefore and the Commissioners were committed to Prison About the Fortnight afterwards having made and Filed their Return they were brought into Court to receive the Sentence of the Court. And then it was said by them and Coleman their Counsel that they would not urge any thing in justification of their not returning their Proceedings they only offered that what they did was by the advice of their Counsel and that the Clause in 13 Eliz. cap. 9. was so penned as to give a great occasion of doubt in this particular which Clause upon their desire was read And is this And be it further Enacted c. That from henceforth the said Commissioners of Sewers nor any of them shall not be compelled or compellable to make any Certificate or Return of the said Commissioners or any of them or of any of the Ordinances Laws or doings by the Authority of any of the said Commissions nor shall not have any Fine Pain or Amerciament set upon them or any of them or any ways to be molested in Body Lands or Goods for that Cause and after the reading thereof the Court delivered themselves seriatim as followeth Moreton This is a great Offence and Contempt The Commissioners of Sewers and their Proceedings are subject to the Jurisdiction of this Court Sir Henry Mildmayes Case 2 Cro. 336. and Sir H. Hungates in our Memory If Commissioners of Sewers or any other inferiour Jurisdiction excéed their Commission we may reform and restrain them and it nay we prohibit them in Cases where They have no Jurisdiction of the matter Many presidents are with us in the present Case And we cannot answer our Duty to the King without taking notice of and punishing this Offence Therefore my Opinion is That for their not obeying of the first Writ they be fined 40 Marks apiece and for their not obeying of the second Writ 20 Marks apiece Rainsford This is indisputably an Offence and Contempt and the greater for that it was seconded It is aggravated too in that the Commissioners proceeded after they had allowed the Certiorari and that they fell upon and shewed their Indignation against those persons who only pursued the Kings Authority and that this was in a Case which was recommended by the King and Council to which Recommendation the Commissioners were Privy they had contrary advice from other Counsel then there but they would hearken to that advice which pleased them best Obedience is that Ligament of the Government without which all will be turned into Anarchy and Confusion Without betraying the Trust reposed in us by the King and violating of our Oaths we cannot omit to punish this therefore I agree the Fines The Reason of the Fines is the disobeying of the Writs the Reason of their disproportion is to resemble the Measures the Commissioners observed towards those persons whom they unduly fined Twisden It was resolved in 23 Car. That this Statute hath no reference to this Court and that this Clause extends only to Certificates and Returns into Chancery the Statute speaks of Supersedeas c. which issue out of the Court of Chancery only for this Court does not nor ever did send out Supersedeas's but this Court sends out Certiorari's which are to bring the business before the King here and the words of them are quia coram nobis terminari volumus non alibi What should move that Gentleman to give such advice as he did I cannot imagin I suppose there is more in the matter than we know and 't is a strange thing that these Commissioners should ask Counsel whether they should obey the Kings Writ or no Especially when it
Perkins IN Debt upon a Bond entred into Eliz. Perkins who was the Plaintiffs Wife and he as her Administrator brings this Action The Defendant pleads That he delivered the Bond to one Eliz. Perkins his Sister quae obiit sola innupta absque hoe that he delivered it to Elizabeth Perkins the Plaintiffs Wife And to that the Plaintiff Demurres Specially For if it be taken that there are two of the name the Defendant should have pleaded non est factum for it amounts to no more Or at least he ought to have induced his Plea that there were two Elizabeth Perkins But this Traverse is designed to bring the Marriage in question which is not to be tried now Wherefore the Court gave Iudgment for the Plaintiff Twisden said If the Issue be Whether the Wife of such a Man or no This is to be tried per Pais For if she be a Wife de facto it serves upon the Issue But Loyalty of Matrimony is to be tried by the Certificate of the Bishop only 2 Cro. 102. Dightons Case A Mandamus was prayed to the Corporation of Stratford super Avon to restore Dighton the Town Clerk They returned their Letters Patents of Incorporation whereby they had Authority to Grant the Office of Town Clerk Durante bene placito and that he was amoved from his Office by the Mayor and Burgesses It was said that here appeared no Cause of amoval upon the Return which was manifestly needless having Authority to turn them out at their Pleasure But Twisden said It hath béen held that where any such like Power is to chuse one into a Iudicial Office as an Alderman whose place concerns Judicature that they cannot amove him without Cause But this was in a Misterial Office It was further moved That it did not appear that they had discharged him by any matter in Writing under Seal and it could not be by Parol Sed non allocatur for it is returned to be done by the Mayor and Burgesses and a Corporation cannot do any thing by Parol Post An Executor obtained Judgment in Debt in this Court and was afterwards upon an Information here convicted of Forging the Will It was also made void by Sentence in the Ecclesiastical Court Whereupon the Court was moved to vacate the Judgment which they ordered accordingly and the Cause of Vacuteing thereof to be entred upon the Record Vide Ante in Paris's Case King versus Atkins IN Debt upon a Bond the Condition recited That whereas the Plaintiff was bound with the Defendant being an Excise-Man that he should render a true Account in the Exchequer that the Defendant should save him harmless at all times c. The Defendant pleaded non fuit damnificatus The Plaintiff replied That a Scire facias issued out against him c. To which the Defendant demurred because he did not alledge that he gave notice This being spoken to divers times the Court thought notice not requisite in this Case no more than upon a Promise to pay so much at the others Marriage or return into England vid. Hob. 112 113. 1 Bulst 12 and 13. Where it is held upon a Promise notice is not necessary otherwise upon a Bond because of the penalty Ante Chester versus Wilson TRin. 21 Car. 2. Rot. 498. The Case was two Ioyn-tenants the one Grants Bargains and Sells all his Estate and Interest to the other It was held clearly by all the Court That this amounted to a Release but it must be pleaded quod relaxavit for one Ioyn-tenant cannot grant to another Wilson versus Armorer IN Debt against the Heir upon the Bond of his Ancestor who pleaded riens per discent the Jury find a Special Verdict to this effect That the Father was seised of a Mannor in Fee and made a Feoffment of it excepting two Closes for the life of the Feoffor only and refered it to the Iudgment of the Court whether these Closes descended to the Defendant or not So that the Question was Whether the Closes were well excepted or passed by the Feoffment And it was argued by Levins for the Plaintiff That by these words the two Closes were Totally excepted and that the Law should reject the latter words because they cannot take effect according to the Parties intention to reserve to the Feoffor a particular Estate If one surrendred a Copyhold to the use of J. S. and his Heirs which Estate to begin after his death adjudged in 2 Rolls 261. a present Fee simple passed 3 Cro. 344. A Man said to his Son being upon his Land Stand forth Eustace my Son reserving and Estate for mine and my Wifes Life I do give you this Land to you and your Heirs Resolved there that this is a good Feofment Moor 950. Popham 49. A Man possessed of a Term in an House in the right of his Wife granted it excepting the Cellar pro usu suo proprio and held that by these words it was altogether excepted out of the grant 1 Anderson 129. Serjeant Turner è contra For that it is but one Sentence and cited 38 H. 6. 38. An Addowson was granted saving the Presentation to the Grantor during his life and held void and Pl. Com. 156. where it is said if a Termour granted his Term after his Death it is void But if in two Sentences as to grant his Term Habendum after his Death there the Habendum is only void Er Adjurnatur Postea Love versus Wyndham AN Action upon the Case upon an Issue directed out of Chancery upon a Special Verdict the Case was George Searl being seised of the Mannor of N. Demised the same to Nich. Love for 99 years if 3 Lives should so long live N. Love devised it to Dulcibell his Wife the remainder to Nich. his Son for life and if he the said N. the Son should dye without Issue then to Barnaby Love the Plaintiff The Executor assented and whether the Devise to Barnaby were good was the Question Jones for the Plaintiff this is a good possibility I shall make two points First If a Termor Devise first to one and then to another whether he may Devise it over Secondly Whether the Limitation here after the Death without Issue be a good Limitation over First He may make a third Limitation which is a Possibility upon a Possibility at least he may make 2 or 3 such Limitations over I can't certainly say where it will end It can't be denied but that a Termour may Devise first to one for life and after to another 8 Co. 95. But I say he may go further and that will appear by Reason and Authority First By Reason The Reason given why the Executory Devise in the first case is good is because 't is in Construction of Law as much as if he had Devised it to the last first if the first Man should dye within the Term and then had Devised that the first should hold during life and without such a transposition it cannot
Defendant pleaded that the place Where was the Freehold of Sir Thomas Hooke and that by his Command he entred The Plaintiff traverseth That it was the Freehold of Sir T.H. And thereupon this Special Verdict was found That Nicholas Heale was seised in Fee and that 16 Dec. 1640. he made a Deed to Jane Heale Enrolled within six Months by which the said Nicholas did for and in Consideration of Natural Love augmentation of her Portion and preferment of her in Marriage and other good and valuable Considerations give grant bargain sell alien enfeoff and confirm unto the said Jane Heale and her Heirs Then they found there was a Covenant that the said Jane Heale should after due Execution c. quietly enjoy c. and also a special Clause of Warranty And that the Deed was Enrolled within six Months and that there was no other Consideration of making the Indenture than what was expressed And if it were sufficient to convey the Premisses to the said Jane they found for the Plaintiff if not for the Defendant And it was Argued by Winnington for the Plaintiff He agreed that it could not take the effect as a Bargain and Sale because no Money was paid but Argued that the Deed should enure as a Covenant to stand seized It is a Ground in the Law that the intention of the parties ought to guide the raising of Uses and the Construction how they shall enure Co. Lit. 49. Rolls 2d part 789. and to give the effect the words shall be disposed to other Construction than what otherwise they would import As if a man demises grants and to Farm-lets certain Lands in Consideration of Money and the Deed is Enrolled this is a good Bargain and Sale So if a man Covenants in Consideration of Money to stand seised to the use of his Son 8 Co. 93. Foxes Case 2 Rolls 789. it is said Nota per Cur ' if it appears that it was the Intent of him that made the Deed to pass the Estate according to Rules of Law it shall pass though there be not formal Words Again the Consideration expressed in this Deed is purely applicable to a Covenant to stand seised and a Deed shall enure upon the Consideration expressed rather than upon one that is implied As in Bedell's Case 7 Co. 40. If the Father in Consideration of 100 l paid Covenants to stand seised to the use of his Son and the Deed is not Enrolled nothing shall pass But where there are two Considerations expressed there the Vse may arise upon either As if the Father in Consideration of Blood and 100 l paid by the Son Covenants to stand seised c. and the Deed is not Enrolled yet the Vse shall arise as upon a Covenant to stand seised Pl. Com. 305. And so it was Adjudged between Watson and Dicks in the Common Pleas 1656. The Father by Deed in Consideration of Love and 100 l paid by the Son conveyed Land to him with a Letter of Attorney in the Deed to make Livery in that case the Son hath his election to take by the Enrolment or Livery which shall be first Executed 2 Rolls 787. pl. 25. But it hath been Objected here that there is a Clause of Warranty in the Deed which shews that the parties intended a Conveyance at the Common Law for if it enure by way of Covenant to stand seised the Warranty can have no effect but to Rebut Also there is a Covenant for quiet Enjoyment after Sealing and Delivery of the Deed and due Execution of the same which shews the parties had a prospect of Executing it by Livery c. To which he Answered That such remote Implications as those shall never make a Deed void against an express Consideration upon the which an Use may arise 'T is true if there had been a Letter of Attorney in the Deed it might have been void unless Livery had followed As if the Father by Deed grants Land to the Son and a Letter of Attorney in it to make Livery if none be made nothing passes Co. Lit. 49. a. The Authorities which have been cited on the other side are first Pitfields and Pierce's Case 2 Roll. 789. where the Father by Deed Poll in Consideration of Blood did give grant c. as in our Case to his Son Habend ' after his decease and a Proviso in it That the Son should pay a Rent during the Father's Life It was Adjudged That the Lands should not pass in that Case by way of Covenant to stand seised But in that Case the Conveyance was repugnant to the Rules of Law for that it was Habend ' the Land after the death of the Grantor and also repugnant in it self For notwithstanding that it reserves the Land to the Father during his Life yet it provides for a payment of Rent to him wherefore the Law would not help out a Deed so contradictory and repugnant by way of raising an Vse The other Case relied upon is between Foster and Foster Hill 13. of this King in this Court in Ejectment The Case was The Mother for divers good Considerations and 20 l paid did by a Deed which was Entituled Articles of Agreement demise grant bargain sell assign and set over to the Son and his Heirs for ever certain Lands the said Margery the Mother quietly enjoying the Premisses during her Life The Court Resolved that it should not amount to a Covenant to stand seised for they were but intended as Articles of Agreement and preparatory for a further Conveyance So the Case differs very much from ours as also that it reserves the Land to the Mother during her Life The Case also of Osborn and Bradshaw in 2 Cro. 127. hath been cited Where the Father in Consideration of Love which he hears to his Son and for Natural affection to him bargained and sold gave granted and confirmed Land to him and his Heirs the Deed was Enrolled It was held the Land should not pass unless Money had been paid or the Estate executed This Case cannot be urged as any great Authority for it appears that the Son was in possession Therefore the Court Adjudged that the Deed should be a Confirmation and it being clear that way they had not much occasion to insist upon or debate the other Point And he relied upon Debb and Peplewell's Case as an Authority in the Point 2 Rolls 78. 6. where there was a Clause of Warranty in the Deed and an Enrolment within six Months as in the Case at Bar But they Resolved there If a Letter of Attorney had been in the Deed it should not have been construed a Covenant to stand seised and therefore he prayed Judgment for the Plaintiff Finch Attorney General contra The Lands here cannot pass by Bargain and Sale there being no Money paid which I find is admitted by the other side neither shall it amount to a Covenant to stand seised There are Five things necessary to raise an Use by way of Covenant
And Doderidge gives the Reason That the Party by his words hath abridged what otherwise the Law would make and so it is held in Bland and Inmans Case 3 Cro. 288. where a Man possessed of a Term for a 100 years did joyn in a Lease with his Wife solvendo so much Rent during the Term to him and his Wife and the Survivor of them that the Executors should not have this Rent Hunt contra In the Reservation of a Rent there is no need of words of Limitation If the words are Yeilding and Paying Generally without saying to whom it is a good Reservation to all those to whom the Reversion shall come so if two Joynt-tenants reserve a Rent generally it is good to both Here are sufficient words to declare the intent that the Rent should continue and then they shall not be restrained by any affirmative words after and where Executors Administrators and Assigns are named that shall be taken as an Enumeration of some particulars without any intent to exclude others as where a man made one his Executor of all his Corn and moveable Goods this gave him an Interest as Executor in all his Chattels as well as in those which were named 3 Cro. 292. Rose and Barlett's Case 8 Co. Whitlock's Case If the Reservation be to such persons to whom the Reversion shall come this is good to the Heir and all others If a Lease be made excepting a Chamber to the Lessor this remains excepted after the death of the Lessor 7 H. 8. 19. Hale If this were res integra it might be a strong Case for the Plaintiff but the Authorities go the other way Sed Adjornatur Vide postea Termino Sancti Michaelis Anno 23 Car. II. In Banco Regis Dorrel versus Jay THe Plaintiff declared that Communication being between J.S. and the Defendant of the last Will of John Rowe Esquire deceased that the Defendant said of the Plaintiff He hath forged his Uncle Rowes Will. After Verdict for the Plaintiff it was moved by Serjeant Ellis in Arrest of Judgment that it is not averred that John Rowe was dead at the time of the speaking of the words Sed non allocatur For it is said there was a discourse of the Will of John Row Esquire defuncti and there defuncti goeth to the description of his person and expresseth that he was then dead and not only when the Action was brought Besides the words imply it for if he were not dead he could not forge his Will Vid. ante Phillips and Kingston's Case Pasch 23 Car. The Case of St. Katherines Hospital THe Case as it appeared upon the Evidence at a Trial at Bar in Ejectment for part of the Lands of the Hospital between the Lessee of Sir Robert Atkins the Queens Solicitor and George Mountague Esquire was this Elianor Queen Dowager of Henry the Third in the year 1273. Founded or at least amply Endowed this Hospital reserving to her self during her Life Reginis Angliae nobis succedentibus the Nomination of the Master to this Hospital which was Incorporated and her Grants to it confirmed by the King's Letters Patents In the Year 1660 Henrietta Maria Queen Mother granted the Mastership of this Hospital to H. Mountague for Life and the King in the same year reciting his Mothers Grant and that the Right of it belonged unto her Confirmed it by his Letters Patents and did further by the same Letters Patents grant unto the said H.M. the said Mastership Afterwards the King married Katherine the now Queen Consort and she granted the Mastership to Sir Robert Atkyns for his Life It was urged on the part of the Plaintiff that the Right of appointing the Master was only in the Queen Consort for Queen Elianor reserved it to her self and her Successors Queens of England and Queen of England is not Queen Dowager but Queen Consort And tho' Land cannot be limited to discend in such manner without Act of Parliament as is Resolved in the Prince's Case in 8 Co. yet such a Desultory Inheritance as this was called may be created of a thing de novo As a Rent may be granted and appointed to cease during the Minority of the Heir or upon the first Foundation of a Church the Patronage may be reserved to A. and if he Presents not within four Months then to B. So in the Book of E. 3. it was limited that the Chapter should present while the Deanry was vacant And to prove that this Clause had been construed only to intend the Queen Consort a Record was shewn of a Case between Luttishall and Basse in 4 E. 3. Where Luttishall exhibited a Petition to the King which was Intituled To our Lord the King and his Counsel Which Petition was sent into the Kings-Bench under the Great Seal in which Luttishall sets forth That Queen Isabel Mother to Edward the Third had granted him the Mastership of the Hospital for his Life and that he was disturbed by Basse and Process was issued out against Basse who appeared and pleaded a Grant from Queen Philip. Wife to Edward the Third and a Writ came from the King reciting That the Nomination of the Master did belong to Queen Isabel And so three Writs more came after to the same purpose and expressing that the Matter was delayed ad inestimabile damnum Consortis nostrae And in that Record Isabel tho' living is styled nuper Regina and Luttishall that claimed under her was barred On the other side Divers Grants were produced during the time that there were no Queens by the King and sometimes by a Queen Dowager during the time that there was a Queen Consort And these Points following were agreed by all the Court First That an Inheritance might be limited in this manner in a thing de novo Secondly That this Reservation being to Queen Elianor and her Successors Queens of England did not exclude Queen Dowagers and extend only to Queen Consorts For 1. A Dowager Queen is Queen of England and as Hale said hath the Prerogative to Sue in the Exchequer 2. When once she is so qualified to have the Estate vest in her it shall continue tho' she doth not remain in the same Capacity As where one hath power to Limit an Estate to his Wife it may very well continue in her after the Coverture Thirdly It was much observed and relyed upon that Queen Elianor was only Dowager at the time of the Foundation and so could never be intended to exclude such Queens as should succeed her in that Capacity Fourthly During such time that there should be no Queen it was held that the King was to constitute the Master for he is Heir to Queen Eleanor And whereas it was urged for the Plaintiff That the King had not power to dispose of the place but only by way of provision till such time as a Queen should be so as to commit the Care of the Poor to one but not the Interest of the Mastership It was
clearly Resolved that the King might grant it and that the Estate of the Grantee should continue tho' the King's Interest devolved upon the succeeding Queen And it was Resembled to the Case of the Dutchy of Cornwal If the King while there is no Prince of Wales makes a Lease of Lands belonging to that Dutchy this shall determine upon the Birth of that Prince but if he Presents to a Church the Incumbent shall not be removed as in case where the King presents to a Church by reason of the Temporalties of a Bishoprick the Bishop after Created shall not remove the Clerk And the Chief Justice said in this case that the Interest of the Mastership did not properly pass from the King so as it should have a dependance upon the King's Estate for the King doth but Nominate and the Master is Intituled as from the first Foundation and Constitution It was further agreed that a thing of this nature could not be granted in Reversion for 't is not like an Office but rather as a Prebendary or Incumbency of a Church and the Master as Head of the Corporation with his Brethren hath the whole Estate in him As to the Record in 4 Ed. 3. it was said Note For Evidence and so shewn out of Speeds Chronicles produced in Court That at that time Queen Isabel was under great Calamity and Oppression and what was then determined against her was not so much from the Right of the thing as the Iniquity of the Times neither hath it been heard that one who had been Queen of England should be called nuper Regina in her Life time So that that Authority was much invalidated from the Circumstance of the Time The Plaintiffs observing the Court thus clearly for the Defendants Title was Nonsuit Note It was not Resolved whether if there had been a Queen Consort at the time of this Grant it had been good to the Defendant But the Judges rather inclined that it should Davison versus Hoslip IN an Assumpsit the Plaintiff sets forth That J. S. owed him 20 l for the Arrear of an Annuity and that the Defendant was Receiver of the Rents of J. S. and appointed by J. S. to pay the Plaintiff his 20 l That the Defendant in Consideration that the Plaintiff would forbear him adtunc Receptor ' serv ' J.S. to such a time that then he would pay him if he lived and continued Receiver To this the Defendant pleaded non Assumpsit and a Verdict was found for the Plaintiff It was moved in Arrest of Judgment that it did not appear that the Defendant had at the time of the Promise any of the Rents of J. S. in his hands and then the forbearing of him could be no Consideration because not liable to any Suit And tho' in case of an Executor's Promise there need be no Averment of Assets for notwithstanding that he may be Sued and the Plaintiff may have Judgment to recover when Assets shall come yet 't is not so in this Case Sed non allocatur For it being shewn That he was Receiver at the time of the Promise and averred That he so continued 't is a strong Intendment that he had Effects in his hands especially after a Verdict It was also said That the taking of this Promise did not discharge the Principal Debtor but that there might be resort to him so long as the Money was unpaid Brown versus London IN an Action upon the Case the Plaintiff declared upon the Custom of Merchants that J. S. drew a Bill of Exchange upon the Defendant to pay to the Plaintiff which he accepted and hath not paid him And declared further sur Indebitat ' upon such a Sum for that the Defendant accepted a Bill of Exchange from him c. Vpon non Assumpsit a Verdict was fâ—und found for the Plaintiff and entire Damages given And it was moved in Arrest of Judgment that an Assumpsit sur Indebitat ' did not lye upon his matter but only an Action upon the Case as it was laid in the first part of the Declaration where the Custom of Merchants is set forth and that the Defendant by reason thereof is chargeable and this is not to be involved in a general Indebitatus assumpsit And of that Opinion were Hale and Rainsford who said it had been so Adjudged in the Exchequer since the King's Return But they said If A. delivers Money to B. to pay to C. and gives C. a Bill of Exchange drawn upon B. and B. accepts the Bill and doth not pay it C. may bring an Indebitatus assumpsit against B. as having received Money to his use But then he must not declare only upon a Bill of Exchange accepted as the Case at Bar is So by their Opinions the Judgment was stayed haesitante Twisden for he conceived that the Custom made it a Debt for him that accepted the Bill Ile's Case A Mandamus was prayed to restore a Sexton The Court at first doubted whether they should grant it because he was rather a Servant to the Parish than an Officer or one that had a Freehold in his Place But upon a Certificate shewn from the Minister and divers of the Parish That the Custom was there to choose a Sexton and that he held it for his Life and that he had 2 d a Year of every House within the Parish They granted a Mandamus and it was directed to the Churchwardens Twisden said that it was Ruled in 1652. in this Court That a Mandamus did not lye to be restored to a Stewardship of a Court Baron but of a Court Leet it did for there the Steward is Judge but of a Court Baron the Suitors are Judges But Hale said He was of another Opinion for the Steward is Judge of that part of the Court which concerns the Copyholds and is Register of the other Ante. Oble versus Dittlesfield IN an Assumpsit the Plaintiff sets forth That J.S. was Indebted to him in 40 l and that the Defendant was Indebted in the like Sum to J. S. and that J. S. did appoint him to receive this 40 l from the Defendant in satisfaction for the Debt due to him from J.S. Which he signifying to the Defendant he in consideratione praemissorum and that the Plaintiff would forbear him a Quarter of a year promised that he would then pay him To this the Defendant pleaded non Assumpsit and a Verdict was found for the Plaintiff It was moved in Arrest of Judgment that here was no sufficient Consideration for it doth not appear that the Defendant was party to this Agreement whereby he should become chargeable by the Plaintiff and then the Forbearance is not material and in the mean time he is Suable by J.S. his Creditor And Clipsham and Morris's Case was cited which was Adjudged in this Court Hill 20 21 Car. 2. where the Plaintiff in an Assumpsit declared that J. S. was Indebted to him in 50 l and gave him a
here to forbear to Sue generally but to stay a Suit against the Defendant whom he could not Sue To which it was answered That after a Verdict it shall be intended there was cause of Suit as Hob. 216. Bidwell and Cattons Case And Attorney brought an Assumpsit upon a Promise made to him in Consideration that he would stay the Prosecution of an Attachment of Priviledge and there held that it need not appear that there was cause of Suit for the Promise argues it and it will be presumed And here 't is a strong intendment that the Bond was made in Common Form which binds the Heirs But Iudgment was given against the Plaintiff for the Court said it might be intended that there was cause of Action if the contrary did not appear which it doth in this Case for the Bond cannot be intended otherwise than the Plaintiff himself hath expressed it which shews only that the Ancestor was bound And whereas it was said by the Plaintiff's Counsel that this would attaint the Jury they finding Assumpsit upon a void Promise Hale said there was no colour for that conceit The Plaintiff having proved his Promise and Consideration as 't was laid in the Declaration which is the only thing within their charge upon Non Assumpsit modo forma Bulmer versus Charles Pawlet Lord Saint John IN an Ejectment upon a Tryal at Bar this question arose upon the Evidence Tenant for Life Remainder in Tail to J. S. joyn in a Fine J.S. dies without Issue whether the Conusee should hold the Land for the Life of the Tenant for Life Serjeant Ellis pressed to have it found Specialy tho' it is resolved in Bredons Case that the Estate of the Conusee shall have Continuance but he said it was a strange Estate that should be both a Determinable Fee and an Estate pur auter vie and he cited 3 Cro. 285. Major and Talbots Case where in Covenant the Plaintiff sets forth that a Feme Tenant for Life Remainder in Fee to her Husband made a Lease to the Defendant for years wherein the Defendant covenanted with the Lessors their Heirs and Assigns to repair and they conveyed the Reversion to the Plaintiff and for default of Reparations the Plaintiff brought his Action as Assignee to the Husband And resolved to be well brought because the Wives Estate passed as drowned in the Fee The Court said Bredons Case was full in the point but the Reason there given Hale said made against the Resolution for 't is said that the Remainder in Tail passes first which if it does the Freehold must go by way of Surrender and so down but they shall rather be construed to pass insimul uno flatu Hob. 277 In Englishes Case it was resolved it Tenant for Life Remainder in Tail to an Infant joyn in a Fine if the Infant after Reverse the Fine yet the Conusee shall hold it for the Life of the Conusor 1 Co. in Bredons Case and he resembled it to the Case in 1 Inst a Man seized in the right of his Wife and entituled to be Tenant by the curtesie joyns in a Feoffment with his Wife the Heir of his Wife shall not avoid this during the Husbands Life Nevertheless he told Ellis That he would never deny a Special Verdict at the request of a Learned Man but it appearing that he Plaintiff had a good Title after the Life should fall the Defendant bought it of him and the Jury were discharged Sacheverel versus Frogate PAs 23 Car. 2. Rot. 590. In Covenant the Plaintiff declared That Jacinth Sacheverel seized in Fee demised to the Defendant certain Land for years reserving 120 l Rent And therein was a Covenant that the Defendant should yearly and every year during the said Term pay unto the Lessor his Executors Administrators and Assigns the said Rent and sets forth how that the Lessor devised the Reversion to the Plaintiff an for 120 l Rent since his decease he brought the Action The Defendant demanded Oyer of the Indenture wherein the Reservation of the Rent was yearly during the Term to the Lessor his Executors Administrators and Assigns and after a Covenant prout the Plaintiff declared and to this the Defendant demurred It was twice argued at the Bar and was now set down for the Resolution of the Court which Hale delivered with the Reasons He said they were all of Opinion for the Plaintiff For what interest a Man hath he hath it in a double capacity either as a Chattel and so transmissible to the Executors and Administrators or as an Inheritance and so in capacity of transmitting it to his Heir Then if Tenant in Fee makes a Lease and reserves the Rent to him and his Executors the Rent cannot go to them for there is no Testamentary Estate On the other side if Lessee for a 100 years should make a Lease for 40 years reserving Rent to him and his Heirs that would be void to the Heir Now a Reservation is but a Return of somewhat back in Retribution of what passes and therefore must be carried over to the Party which should have succeeded in the Estate if no Lease had béen made and that has béen always held where the Reservation is general So tho' it doth not properly create a Fee yet 't is a descendible Estate because it comes in lieu of what would have descended therefore Constructions of Reservations have been ever according to the Reason and Equity of the thing If two Joynt-teants make a Lease and reserve the Rent to one of them this is a good to both unless the Lease be by Indenture because of the Estoppel which is not in our Case for the Executors are Strangers to the Deed. 'T is true if A. and B. joyn in a Lease of Land wherein A. hath nothing reserving the Rent to A. by Indenture this is good by Estoppel to A. But in the Earl of Clare's Case it was resolved That where he and his Wife made a Lease reserving a Rent to himself and his Wife and his Heirs that he might bring Debt for the Rent and declare as of a Lease made by himself alone and the Reservation to himself for being in the Case of a Feme Covert there could be no Estoppel altho' she signed and sealed the Lease There was an Indenture of Demise from two Joynt tenants reserving 20 l Rent to them both one only sealed and delivered the Deed and he brought Debt for the Rent and declared of a Demise of the Moiety and a Reservation of 10 l Rent to him And resolved that he might Between Bond and Cartwright which see before and in the Common Pleas Pas 40. Eliz. Tenant in Tail made a Lease reserving a Rent to him and his Heirs It was resolved a good Lease to bind the Entail for the Rent shall go to the Heir in Tail along with the Reversion tho' the Reservation were to the Heirs generally For the Law uses all industry imaginable to conform
the Reservation to the Estate Whitlocks Case 8 Co. is very full to this where Tenant for Life the Remainder over so setled by Limitation of uses with power to the Tenant for Life to make Leases who made a Lease reserving Rent to him his Heirs and Assigns Resolved That he in the Remainder might have the Rent upon this Reservation So put the Case That Lessee for a 100 years should let for 50 reserving a Rent to him and his Heirs during the Term I conceive this would go to the Executor 'T is true if the Lessor reserves the Rent to himself 't is held it will neither go to the Heir or Executor But in 27 H. 8. 19. where the Reservation is to him and his Assigns It is said that it will go to the Heir And in the Case at Bar the words Executors and Administrators are void then t is as much as if reserved to him and his Assigns during the Term which are express words declaring the intent and must govern any implied construction which is the true and particular Reason in this Case The Old Books that have been cited have not the words during the Term. Vid. Lane 256. Richmond and Butchers Case indeed is judged contrary in point 3 Cro. 217. but that went upon a mistaken ground which was the Manuscript Report 12 E. 2. Whereas I suppose the Book intended was 12 E. 3. Fitz. Assize 86. for I have appointed the Manuscript of E. 2. which is in Lincolns Inn Library to be searched 6 Co. 62. and there is no such Case in that year of E. 2. The Case in the 12 E. 3. is A Man seized of two Acres let one reserving Rent to him and let the other reserving Rent to him and his Heirs and resolved that the first Reservation should determin with his Life for the Antithesis in the Reservation makes a strong Implication that he intended so In Wotton and Edwins Case 5 Jac. the words of Reservation were Yeilding and Paying to the Lessor and his Assigns And resolved that the Rent determined upon his Death In that case there wanted the effectual and operative Clause during the Term. The Case of Sury and Brown is the same with ours in the words of Reservation and the Assignee of the Reversion brought Debt Lane 255. and did not aver the Life of the Lessor And the Opinion of Jones Croke and Doderidge was for the Plaintiff Latches Rep. 99. The Law will not suffer and Construction to take away the energy of these words during the Term. If a Man reserves a Rent to him or his Heirs 't is void to the Heir 1 Inst 214. a. But in Mallorys Case 5 Co. where an Abbot reserved a Rent during the Term to him or his Successors it was resolved good to the Successor It is said in Brudnels Case 5 Co. that if a Lease be made for years if A. and B. so long live if one of them dies the Lease Determines because not said if either of them so long lives So it is in point of Grant But it is not so in point of Reservation for Pas 4 Jac. in the Common Pleas between Hill and Hill The Case was a Copyholder in Fee where the Custom was for a Widows Estate made a Lease by Licence reserving Rent to him and his Wife during their lives and did not say or either of them and to his Heirs It was resolved First That the Wife might have this Rent tho' not party to the Lease Secondly That tho' the Rent were reserved during their lives yet it should continue for the life of either of them for the Reversion if possible will attract the Rent to it as it were by a kind of Magnetism Hoskins versus Robbins A Replevin for six Sheep The Defendant makes Conusance c. for Damage Fesant The Plaintiff replied That the place where was a great Wast parcel of such a Mannor within which there were time out of mind Copyhold Tenants and that there was a Custom in the Mannor that the said Tenants should have the sole and several Pasture of the Wast as belonging to their Tenements and shews that the Tenants licenced him to put in his Beasts The Defendant Traverses the Custom and found for the Plaintiff The exceptions moved in Arrest of Judgment were now spoken to again First That the Custom to have the sole Pasture and thereby to exclude the Lord is not allowable It hath béen ever held That such a Prescription for Common is not good and why should the same thing in effect be gained by the change of the name That Prescription for Pasture and Prescription for Common is the same thing Vid. 3 Cro. Daniel v. Count de Hertford 542. and Rolls tit Prescription 267. It is held a Man may claim Common for half a year excluding the Lord and that one cannot prescribe to have it always so is not because of the Contradiction of the Term for if the sole Feeding be but for half a year 't is as improper to call it Common but the true reason seems to be because it should in a manner take away the whole profit of the Soil from the Lord and he should by such usage lose his greatest Evidence to prove his Title for it would appear that the Land was always fed by the Beasts of others and it would be very mischievous to Lords who live remote from their Wasts or that seldom put their Beasts there as many times they do not so that by the Tenants solely using to feed it they should lose their Improvements provided for the Lords by the Statute and so come at last for want of Evidence to lose the Soil it self Secondly This Custom is laid To have the sole Feeding belonging to their Tenements and 't is not said for Beasts levant and couchant or averred that the Beasts taken were so 15 E. 4. 32. and Rolls tit Common 398. Fitz. tit Prescription 51. A Man cannot prescribe to take Estovers as belonging to his House unless he Avers them to be spent in his House Noy 145. So 2 Cro. 256. tho' the Prescription was there to take omnes Spinas for it is necessary to apply it to something which agrees in nature to the thing Brownlow 35. Thirdly Here the Plaintiff justifies the putting in his Beasts by a Licence and doth not say it was by Deed whereas it could not be without Deed and so is the 2 Cro. 575. Fourthly Those defects are not aided by the Verdict for they are in the right and of substance But the Court were all of Opinion for the Plaintiff First They held the Prescription to be good and being laid as a Custom in the Mannor it was not needful to express the Copy-hold Estates it doth not take away all the profit of the Land from the Lord for his interest in the Trees Mines Bushes c. continues Co. Inst 122. a. is express that a Prescription may be for sola separalis pastura ' and if
that time this made an Estate Tail But if it had béen and after their decease to their Children then the Children should take by Purchase tho' born after 'T is true that case is variously reported in the Books but I adhere to my Lord Coke presuming that being brought before all the Judges in the Argument of VVilds Case it was a true Report As for the second Point 't is plain that the power is extinguished for by the Recovery the Estate for Life to which it was annexed in privity is gone and forfeited so that 't is not necessary to dispute the third Point whether well executed or no But upon the whole I agree with my Brother Rainsford that the Plaintiff ought to have Judgment Hale I differ from my two Brothers and tho' I was of their Opinion at the finding of the Special Verdict yet upon very great Consideration of the Case I am of Opinion for the Defendant I shall proceed in a different method from my Brothers and begin with that Point which they made last and I agree with them admitting that Bernard had but an Estate for Life that the power was destroyed also here the Recovery does not only bar the Estate but all powers annexed to it for the recompence in value is of such strong Consideration that it serves as well for Rents Possibilities c. going out of and depending upon the Land as for the Land it self So Fines and Feoffments do ransack the whole Estate and pass or extinguish c. all Rights Conditions Powers c. belonging to the Land as well as the Land it self Secondly I agree with my Brother Rainsford that if Bernard had but an Estate for Life by the Devise the power was not well executed Where Tenant for Life has a power to make Leases 't is not always necessary to recite his power when he makes a Lease but if he makes a Lease which will not have an effectual continuance if it be directed out of his interest there it shall be as made by virtue of his power and so it was resolved in one Roger's Case in which I was Counsel Again Tho' it be here by Covenant to stand seized an improper way to execute his power yet it might be construed an Execution of it Mich. 51. In this Court Stapleton's Case where a Devise was to A. for Life Remainder to B. for Life Remainder to C. in Fee with power to B. to make his Wife a Joynture B. covenanted to stand seized for the Joynture of his Wife reciting his power tho' this could not make a legal Joynture yet it was resolved to enure by virtue of his power quando non valet quod ago ut ago valeat quantum valere potest But in this Case Bernard has got a new Fee which tho' it be defeasible by him in Remainder yet the Covenant to stand seized shall enure thereupon and the use shall arise out of the Fee Thirdly I was at the first opening of the Case of Opinion that Bernard had but an Estate for Life but upon deep Examination of the Will and of the Authority and Considerations of the Consequences of the Case I hold it to be an Estate Tail And first to ease that Point of all difficulties if cannot be denied but a Devise to a Man and the Heirs of his Body by a second Wife makes an Estate Tail executed tho' the Devisee had a Wife at the time As the Case often cited Land given to a Married Man and a Married Woman and the Heirs of their Bodies We are here in case of the Creation of an Estate-Tail where intention has some influence voluntas Donatoris c. and may help words which are not exactly according to legal form 39 Ass 20. Land given to a Man and his Wife haeredi de corpore uni haeredi tantum this judged an Entail Again we are in case of an Estate Tail to be created by a Will and the intention of the Testator is the Law to expound the Testament therefore a Devise to a Man and his Heirs Males or a Devise to a Man and if he dies without Issue c. are always construed to make an Entail It must be admitted that if the Devise were to B. and the Issue of his Body having no Issue at that time it would be an Estate Tail for the Law will carry over the word Issue not only to his immediate Issue but to all that shall descend from him I agree it would be otherwise if there were Issue at the time Tayler and Sayer 41 Eliz. rot 541. a Devise to his Wife for Life 1 Cro. 742. Remainder to his Issue having two Children it was held the Remainder was void being to the Issue in the singular number for incertainy which should take But that was a little too rank for Issue is nomen collectivum Again I agree if a Devise be made to a man and after his death to his Issue or Children having Issue at that time they take by way of Remainder And that was the only Point adjudged in Wild's Case and there also against the Opinion of Popham and Gawdy This way being made I come to the Case it self and shall briefly give my Reasons why I hold Bernard has an Estate Tail First Because the word Issue is nomen collectivum and takes in the whole Generation ex vi termini and so the Case is stronger than if it were Children And where 't is said to the Issue that he shall have of the Body of the second Wife that is all that shall come of the second Wife For so 't is understood in common Parlance Secondly In all Acts of Parliament Exitus is as comprehensive as Heirs of the Body In Westm 2. de donis Issue is made a term of equivalence to Heirs of the Body for where it speaks of the Alienation of the Donee 't is said quo minus ad exitum discenderet So in 34 H. 8. of Entails setled by the Crown 'T is true in Conveyances c. the wisdom of the Law has appropriated the word Heirs as a Term of Art In Clerke's Case A Lease was made to commence after the death of his Son without Issue the Son had a Son and died and then that Son died without Issue It was Resolved both in the Kings Bench and the Exchequer that the Lease should commence for Issue being nomen collectivum whenever the Issue of the Son failed the term of Commencement did happen But now to see the difference Tyler's Case Mich. 34 Eliz. B.R. He had Issue A. B. C. and D. and Devised to his Wife for Life and after her death to B. his Son in Tail and if he dies without Issue then to his Children A. had Issue a Son and died and B. died without Issue Resolved that the Son of A. should not take as one of the Children of the Testator Which Case I cite to shew the odds between the word Issue and the
to Bernard to make his Wife a Joynture it shews that it was intended he should have but an Estate for Life which needed such a Power and not an Estate Tail for then he might have made a Joynture without it I Answer That Tenant in Tail cannot by virtue of such Estate make a Joynture without discontinuing or destroying his Estate Sed Judicium pro Quer ' There being Justice Twisden and Justice Rainsford against the Chief Justice Termino Sancti Hillarij Anno 24 25 Car. II. In Banco Regis Anonymus A Prohibition was prayed to the Ecclesiastical Court for that they Cited one out of the Diocess to Answer a Suit for a Legacy But it was denied because it was in the Court where the Probat of the Will was For tho' it were before Commissioners appointed for the Probat of Wills in the late Times yet now all their Proceedings in such cases are transmitted into the Prerogative Court And therefore Suits for the Legacies contained in such Wills ought to be in the Archbishop's Court for there the Executor must give account and be discharged c. Note When a man is in custodia Marescalli any man may Declare against him in a Personal Action and if he be bailed out he is still in custodia to this purpose viz. quoad Declarations brought in against him that Term For the Bail are as it were Delegated by the Court to have him in Prison Hob. Error is not well assigned That there was no Bail filed unless added That the Defendant was not in custodia Debt IN an Action of Debt upon a Sheriffs Bond the Case was this A man was Arrested upon a Latitat in placito Transgr ' ac etiam bille pro 40 l de debito And the Condition of the Bond given to the Sheriff was to appear at the Day of the Return of the Writ to answer to the Plaint in plito debito And it was urged that this made the Bond void by the Statute of 23 H. 6. for the Condition should have been to Appear at the Day to Answer in the Action upon which the Process went out and that was in this Case but an Action of Trespass and the adding the Ac etiam debiti c. is but to satisfie the late Act and for Direction to the Sheriff to what Value he shall require Bail And it was usual to Endorse the Cause of Action before the Statute upon the Latitats that the Sheriff might insist upon Bail accordingly So this is a material Variance from the Statute and not like some of these which are remembred in Beaufage's Case in the 10 Co. and Dyer 364. And to this the Court inclined And Hale Cited a Case between Button and Low adjudged Mich. 1649. An Attachment went out of Chancery to answer Coram nobis in Cancellaria ubicunque c. and the Sheriff took a Bond Conditioned to Appear Coram Rege in Cancellaria ubicunque c. apud Westmonasterium And for the addition of Westminster the Bond was held to be void Anonymus THe Court was moved for a Prohibition to the Archbishop's Court to stop their Proceedings in a Cause belonging to the Jurisdiction of Durham upon a Suggestion that the Dean and Chapter of Durham Sede vacante have Cognizance there as Guardians of the Spiritualties And the Court granted a Prohibition for the Right of Jurisdiction was tryed between the Archbishop and Dean and Chapter the last Term and found against the Archbishop and therefore he was concluded by the Verdict until the Record was reversed by Error or Attaint Thodie's Case THody and two others were Indicted for that Conspiratione inter eos habita they enticed J. S. to play and cheated him with False Dice Thody pleaded and was found Guilty the others not having pleaded It was moved that Judgment might not be Entred against him until the others came in for being laid by way of Conspiracy if the rest should chance to be acquitted no Judgment could be given against him And so is 14 H. 6. 25. Hale said If one be Acquitted in an Action of Conspiracy the other cannot be Guilty But where one is found Guilty and the other comes not in upon Process or if he dies hanging the Suit yet Judgment shall be upon the Verdict against the other And so is 18 E. 3. 1. and 24 E. 3. 34. Wild said The difference was where the Suit was upon Conspiracy wherein the Villanous Judgment was to be given and where the Conspiracy is laid only by way of Aggravation as in this Case Hale said It would be the same in an Action against two upon the Case for Conspiracy but not in such Actions where tho' there be a Charge of Conspiracy yet the Gift of the Action is upon another matter But the Court said They would give him two or three days for the bringing in of the other two and defer the Entry of the Judgment in the mean time Methyn versus the Hundred of Thistleworth THe Case was moved again by North Solicitor He urgrd for the Plaintiff That the Issue being Whether they took the Felon upon Fresh Suit It being not found that there was any actual Taking or that the Fresh Suit continued until Sir J. Ash found the Felon in the presence of Sir P. Warwick Also it was found that Sir J. Ash was a Justice of Peace and therefore it was his duty to Apprehend him To this it was Answered That the Statute of Winton upon which the Action is founded and not upon the 27 of Eliz. and therefore it is ill if it concludes contra formam Statutorum doth not say shall Take but shall Answer the Bodies of the Offenders which is Answer them to Justice And therefore if the Felon be taken upon another account and the Country finding him in Prison cause him to be Indicted this satisfies the Statute Goldsb 55. Again it was more decent for Sir John Ash being concerned as an Inhabitant of the Hundred to leave this Matter to the other Justice of the Peace for it has been known that Justices of the Peace have been Censured in the Star-Chamber for being too forward to interpose in their own business But if it were an omission of the Duty of his Office that could not be Objected to him as an Inhabitant having done enough to satisfie the Statute of Winton Wild said That the Defendant should have Demurred because the Issue is ill joyned viz. absque hoc that he took him super eadem recenti insecutione For if he were not immediately taken upon Fresh pursuit it were sufficient but the Verdict finding Fresh Suit was made it may be taken by Intendment which shall help out a Special Verdict that it was directed this way and continued until the finding of him in the presence of Sir P. Warwicke Et sic Judicium pro Def. Ante. Dacres versus Duncomb IN Trover after Imparlance the Defendant pleaded That the Plaintiff with two others brought Trover for the
five years pass Whether the Lessor should have five years after the Term expired was the question and after the hearing of Arguments the Court resolved that he should as well as when Lessee for Life levies a Fine which differs not in reason from this Case for there the Lessor may have his Writ de consimili casu presently as here he may bring his Assize And though in 9 Co. Podgers Case 'T is said that where Lessee for years is ousted by a Disseisor who levies a Fine if five years pass without claim the Lessor is barred that is not the same with this Case for the Disseissor comes in without the consent of the Lessee and of his own wrong and if he can defend his Possession five years he shall hold it but here all is done with the privity and by the means of the Lessee who is trusted with the Possession and it would be of most mischievous import to Mens Inheritances if they should not have five years after the Lease ended and it being put of a Disseisin in Podger's Case seems to imply the contrary in other Cases and tho' there were many notorious Circumstances of fraud in Fermours Case which Co. in his report of it lays much weight upon yet it does not thence follow that the Law is not the same where there are not such evidences of fraud In other Books where that case is reported the resolution does not seem to go so much upon the particularities of the Fraud 'T is Fraud apparent in the Lessee Wilston versus Pilkney IN Debt for Rent the Plaintiff declared that the Dean and Chapter of c. demised to the Defendant for Life by force of which he entred and demised the Land to the Plaintiff for years by virtue of which he was possessed and afterward granted to the Defendant reserving a Rent for which he brings his Action To this Declaration the Defendant Demurrs First Because he doth not say of the Deans Demise hic in Curia prolat ' which Demise must be by Deed. Secondly He says that the Defendant entred by force thereof which is impertinent to be alledged upon a Lease for Life because Livery implies it Thirdly As to the matter that the Reservation was void it being upon a surrender by Parol A Rent cannot be reserved upon a Feoffment by Parol so where Lessee for life or years assigns over his whole interest 12 H. 4. 14. 9 H. 6. 43. 12 H. 4. 17. also no Rent can be reserved upon a Conveyance that works an Extinguishment unless by Deed where it is good upon the contract Peto's Case 3 Cro. 101. is that a Surrender drowns the interest to all intents and purposes between the Parties Dier 251. The Tenant for Life agreed with him in Reversion that he should have his Land for the Annual Rent of 20 s 't is doubted there whether this amounts to a Surrender there being no Deed or Livery But in 2 Rolls 497. 't is said if it had been a Surrender the reservation had béen void Hale I do most doubt of the first exception because the Deed was not produced And for the second it were better pleading to have said by force of which he was seized but that 's not of necessity And as to the matter the Court resolved for the Plaintiff For 1. The Reservation was good by the contract tho' without Deed. And so it was adjudged in this Court in Manly's Case that Tenant for years might assign his whole Term by Parol rendring Rent so in the Case of Purcas and Owen 23 Car. But it was doubted whether an Action would lye until the last day were past 'T is all one where the Grant is made to him in Reversion which is not actually but consequentially a Surrender by operation of Law before which the contract is perfected upon which the Rent arises 7 E. 4. is that the Lessee may Surrender upon Condition and there is no reason why a Rent cannot be created upon it as well as a Condition If it were in the case of Tenant for Life a Deed were requisite as well for a Rent as a Condition in respect of the Freehold but that is not so in case of Tenant for years Vide Postea Cartwright and Pinkney Termino Sanctae Trinitatis Anno 25 Car. II. In Banco Regis Hanslap versus Cater IN Error upon a Judgment in the Court of Coventry where the Plaintiff Cater declared That the Defendant being indebted to him infra Jurisdictionem Curiae pro diversis Bonis Mercimoniis ante tunc venditis deliberatis did then and there assume c. Vpon Non Assumpsit pleaded and a Verdict and Judgment for the Plaintiff the Error assigned was That the Goods were not alledged to be sold within the Jurisdiction of the Court. Hale and Wild seemed to be of Opinion that it was well enough the being indebted and the promise being laid to be within the Jurisdiction Twisden Contra and said he had known many Judgments reversed for the same Cause It being moved again this Term Hale consented that it should be reversed according as the latter Presidents have been for he said it was his Rule Stare decisis Parsons and Muden Pasch 22. Car. 2. Rot. out of Barnstaple Court John Brown's Case HE was indicted upon the Statute of 3 H. 7. cap. 2. for the forcible taking away and marrying of one Lucy Ramsy of the Age of fourteen years having to her Portion 5000 l He was tried at the Bar and the fact appeared upon the Evidence to be thus She was inveigled into Hide Park by one Mrs. P. confederate with Brown who had prepared a Coach for that purpose to take the Air in an Evening about the latter end of May last and being in the Park the Coachman drove away from the rest of the company which gave opportunity to Brown who came to the Coach side in a Vizar-mask and addressing himself first to Mrs. P. soon perswaded her out of the Coach and then pulls out a Maid servant there attending Mrs. Ramsy and then gets himself into the Coach and there detains her until the Coachman carried them to his Lodgings in the Strand where the next Morning he prevails upon her having first threatned to carry her beyond Sea if she refused to Marry him but was the same day apprehended in the same House It was a first doubted whether the Evidence of Lucy Ramsy was to be admitted because she was his Wife de facto tho' not de jure But the Court seriatim delivered their Opinions that she was to be admitted a Witness First For that there was one continuing force upon her from the beginning till the Marriage wherefore whatsoever was done while she was under that violence was not to be respected Secondly As such Cases are generally contrived so hainous a Crime would go unpuished unless the Testimony of the Woman should be received Thirdly In Fulwoods Case reported in 1 Cro. which was read in the
Court the Woman was a Witness tho' married as here and Rainsford cited my Lord Castlehavens Case where the Countess gave Evidence that he assisted the committing a Rape upon her But Hale said he was not governed by that case because there was a Wife de jure the Evidence being clear as to all the Points of the Statute viz. First That the taking was by force Secondly That the Woman had substance according to the Statute Thirdly That Marriage ensued tho' it did not appear she was deflowred the Jury found him guilty Whereupon Judgment was given and he was hanged Note 39 Eliz. cap. 9. takes away Clergy from this Offence Bayly versus Murin IN an Ejectment upon a Special Verdict the Case was to this effect One Cooper Vicar of Granbrook in Kent being seized of an House and Lands thereunto appertaining parcel of the Endowment of his Vicaridge situate in a Market Town in the year 1672 lets it for three years and one year of the said Lease being expired the 11 of Sept. 1673. lets it for 21 years to begin from Michaelmas following reserving the Rent during the Term payable at the usual Feasts or within ten days after this Lease was confirmed by the Archbishop Patron of the Vicarage and Dean and Chapter of Canterbury Some years after Cooper dies and the Question was Whether Buck the succeeding Vicar could avoid this Lease The first Point was Whether the Lease became void within 80 Days after the death of Cooper by the Statute of Non-residence 13 Eliz. 20. And as to that all the Justices were of Opinion that Death would not make such a Non-residence as should avoid the Lease for the Intention of the Statute was to oblige the Incumbents to Residence First By imposing of the Forfeiture of a years Value of their Benefice if they did not Reside Secondly By making their Leases void which tho' prima facie seemed to be to their advantage yet was not so in the consequence for none would be induced to Farm their Lands because it was in their power to defeat their Leases by Non residence Again 'T is plain the Statute meant a Wilful Absence because it says The party so offending the Statute of the 13th of Eliz. that allows Leases of Houses c. in Market Towns for 40 years would be of no effect if Death should be interpreted a Non-residence and the Confirmation of Patron and Ordinary would be to no purpose Butler and Goodale's Case in the 6 Co. 21. b. is that where the Incumbent is absent upon an Inhibition or for the sake of his Health he is not within the Penalty of that Law There is only one single Authority against this viz. Mott and Hale's Case in the 1 Cro. 123. which Twisden doubted whether it were so adjudged because my Lord Coke mentions it no where supposing so Notable a Point would not have escaped his Observation especially in a Case wherein he was Counsel But Hale said It was Adjudged by the Opinion of three Judges tho' in Moor 't is said the Court was Divided but it was a hard Opinion And in the 38th of Eliz. B.R. Moor 609. the very Point was adjudged contrary The second Point Whether it were void because the Rent was reserved at the usual Feasts or within Ten days after For it was urged that the Term ending at Michaelmas would be expired before the last Payment And for the other payments 't is for the Successor's advantage because the Predecessor may dye within the Ten days But the Court were clear of Opinion in regard the Reservation was during the Term that there should be no Ten days given to the Lessee for the last payment according to Barwicke and Foster's Case in the 2 Cro. 227 233. The third point Whether this were a Lease in Reversion and so not warranted by the Statute of the 14 of Elizabeth And all the Court held that it was This Statute repeats that of the 13th of Eliz. as to Houses in Market Towns which Liberty was given as Twisden said to render those places more populous but excepts Leases in Reversion which this is being to commence at a Day to come where a Power is annexed to an Estate for Life to make Leases in possession A man cannot make a Lease to commence in futuro In the 6 Co. Fitz William's Case 4 E. 3. tit Waste 18. the Lessor made a Lease to commence after the death of the Tenant for Life and notwithstanding maintained an Action of Waste And Co. Lit. citing that Case distinguishes between a Grant of the Reversion and a Lease in Reversion as that Case was In Plowden's Commentaries Tracy's Case A Lease made to commence at a Day to come is given as a most proper Instance of a Lease in Reversion In the 1 Cro. 546. Hunt and Singleton's Case a Lease of an House for 40 years there being 10 years unexpired of a former Lease by the Dean and Chapter of St. Pauls was held not warranted by the 14th of Eliz. The like was Resolved in C. B. 14 Car. 2. in the Case of Wyn and Wild of a Lease of the Dean and Chapter of Westminster and there the Court denied the Opinion in Tomson and Trafford's Case Poph. 9. And two of the Judges seemed to be of Opinion and Twisden strongly that if the Lease in the Case at Bar had been made to commence presently it yet would have been void there being another Lease in being so that for so many years as were to come of the former Lease it would be a Lease in Reversion And that the 18th of Eliz. that permits a concurrent Lease so that there be not above three years in being shall not in their Opinion make any alteration of the 14th of Eliz. but it only extends to the 13th of Eliz. because it recites that but not the former And so is the Opinion of Hobart in the Case of Crane and Taylour 269. and it hath been often held that it does not extend to the Statute of 1 Eliz. concerning Bishops But of this Hale doubted and rather conceived the contrary viz. That the Lease had been good if it had been made to commence presently there being less than three years to come of the former Lease And that of the 18 of Eliz. did give a qualification to Leases made upon the 14th as well as the 13th First Because the 14 of Eliz. is a kind of an Appendix to the 13th of Eliz. and does not repeat it but sub modo a little enlarging it as to Houses in Market Towns Wherefore the 18th of Eliz. reciting the 13th does by consequence recite the 14th also Secondly There is such a Connexion betwixt all the Statutes concerning Leases of Ecclesiastical persons that they have been taken into the Construction of one another The Statute of the 32d of H. 8. is not recited neither in the 1st or the 13th of Eliz. yet a Lease is not warranted upon those Statutes unless it hath the Qualifications
excused yet 't is merely void as to the Party Et Ad jornatur Norton versus Harvey THe Case was an Executor being possessed of a Term let part of it reserving a Rent and died And the Question was whether his Executor should have the Rent or the Administrator de bonis non It was argued for the Executor that this Rent is meerly due by the Contract and not incident to the Reversion and the Administrator is in Paramount it being now as if the Testator had died Intestate and therefore before the Statute of this King such Administrators could not have had a Scire facias upon a Judgment obtained by the Executor tho' in the Case of Cleve and Vere 3 Cro. 450 457. 't is held that he may have a Liberate where the Executor had proceeded in the Execution of a Statute so far as an Extent for there the thing is executed and not meerly Executory as a Judgment If a Man that hath a Term in the right of his Wife le ts part of it reserving a Rent the Wife surviving shall not not have the Rent On the other side it was said that this case differed from that because the Reservation here is by him that had the whole Right executed in him Another objection against the Action was that here in the Declaration being in Covenant for Non payment of Rent there is not any demand alledged But that was answered because the Covenant was to pay such a Sum for the Rent expresly but if the Condition of a Bond be for performance of Covenants expressed in such a Lease one of which is for payment of Rent in that case the Bond will not be forfeit without a demand and of that Opinion were the Court and that the Executor should have the Rent but when recovered Hale said it should be Assets in his Hands And accordingly Iudgment was given for the Plaintiff Termino Sanctae Trinitatis Anno 26 Car. II. In Banco Regis Silly versus Silly DOwer of 300 Acres of Land 200 Acres of Pasture 100 Acres Meadow The Tenant pleaded Non Tenure The Jury found him Tenant as to 320 Acres of Land and as to the rest that he was not Tenant And the Iudgment was that the Demandant should recover the 320 Acres Error was assigned in this Court that the Verdict and Judgment were for more Acres of Land than were demanded But on the other side it was said Land was a general word and might include Meadow and Pasture Curia In a Grant Land will extend to Meadow Pasture c. but in Pleading it signifies Arable only and here in regard they are distinguished in the Count the Verdict and Judgment must be reversed for the whole Tho' Hale said antiently such Iudgment would have been reversed but for the surplusage Vid Post Batmore Vxor versus Graves TRover for a 100 Loads of Wood upon a Special Verdict the Case was this Copyhold Land was surrendred to the use of J. S. for years Remainder to the Brother of the Plaintiff's Wife who died before the Term expired and so was not admitted any otherwise than by the admission of the Tenant for years And it was resolved First That the admittance of him that had the Estate for years was an admittance for him in the Remainder 4 Co. 23. a. 3 Cro. 504. Fine sur Grant and render to A. for Life Remainder to B. Execution sued by A. serves for B. So an Attornment to Tenant for Life serves for him in Remainder and this brings no prejuduce to the Lord for a Fine is not due until after admittance and the Lord may Assess one Fine for the particular Estate and another Fine for the Remainder But Wild said he need not pay it until his Estate comes in Possession after a Surrender the Estate remains in the Surrender before admittance of the Cestuy que use yet where Borough English Land was Surrendred to the use of J. S. and his Heirs and he died before admittance It was held that the younger Son should have it Secondly It was resolved that the Possession of the Tenant for years was so the Possession of him in Remainder as to make a Possessio Fratris But then it was moved that the Conversion was laid after the Marriage and so the Feme ought not to have joyned with her Husband in the Action But the Court held that in regard the Trover was laid to be before the Marriage which was the inception of the cause of Action the Wife might be joyned as if one has the Custody of a Womans Goods and afterward Marries her she may joyn in Detinue with her Husband for in case of Bailment the Proprietor is to some purposes in Possession and to some out of Possession Hale said in this case the Husband might bring the Action alone or joyntly with his Wife And so Iudgment was given for the Plaintiff Anonymus IN Debt upon a Bond the Condition was to save the Obligee harmless from another Bond. The Defendant pleaded Non damnificatus The Plaintiff replies that the Money was not paid at the day and he devenit onerabilis and could not attend his business for fear of an Arrest The Defendant rejoyns that he tendred the Money at the day absque hoc that the Plaintiff devenit onerabilis to which it was Demurred and the Iudgment was given for the Plaintiff for the Money not being paid at the day the Counter Bond is forfeited Vid. 1 Cro. 672. 5 Co. and the Traverse in this case is naught The Mayor and Commonalty of London versus Dupester IN Debt for a Duty accruing to the City for Timber imported called Scavage The Declaration was that they were and had been a Corporation time out of mind and their Customs were confirmed by Act of Parliament Temps R. 2. c. The Defendant tendred his Law and Co. Entries 118. was cited where in Debt for an Amerciament in a Court Baron tho' the imposing of it was grounded upon a Prescription yet Wager of Law was admitted But notwithstanding in this case the Court overruled the Wager of Law for here the Duty it self is by Prescription and that confirmed by Act of Parlimant Debt for a Duty growing by a By-Law if the By-Law be Authorised by Letters Patents no Wager of Law lies So in Debt for Toll granted by Letters Patents 20 H. 7. Termino Sancti Michaelis Anno 26 Car. II. In Banco Regis Silly versus Silly THe Case was moved again And the Court said that the Demandant might have taken Judgment for the 300 Acres only habito nullo respectu to the rest and released all the Damages But this was not proper for an Amendment the Mistake being in the Verdict but if it could have been amended in the Common Bench the Court might here have made such Amendment Ante. Burfoot versus Peal A Scire facias was brought against the Bail who pleaded that the Principal paid the Debt ante diem impetrationis Brevis
own Wrong as to enforce the Lessee to pay any thing for the residue Otherwise of a Rightful Entry into part as in the Case at Bar. 'T is true in Ascough's Case in the 9 Co. 't is said a Rent cannot be suspended in part and in esse for part And so in the 4 Co. Rawlin's Case it is held That the whole Rent is suspended where part is Redemised to the Lessor But the Court observed that the Resolution of that Point was not necessary to the Judgment given in that Case which was upon the Extinguishment of the Condition which is entire and not to be apportioned But as to the Rent no Book was found to warrant such an Opinion but Brook tit Extinguishment 48. where 't is said If there be Lord and Tenant by three Acres and the Tenant lets one to the Lord for years the whole Rent is suspended This Case is not found in the Book at large An in 7 Ed. 3. 56 57. where a Formedon was brought of a Rent-Service issuing out of three Acres and as to one Acre it was pleaded that the Demandant himself was Sole seised and concluded Judgment of the Writ But it was Ruled to be a Plea to the Action for so much and to the rest the Tenant must answer which is a full Authority that in such case the Rent is to be apportioned And the Case of Dorrell and Andrews Rolls tit Extinguishment 938. is full in the Point That where Lessee for years let ts at Will which Lessee Licenses the Lessor to enter that the Entry of the Lessor thereupon shall not suspend his Rent For Hale said Tho' it might be Objected that in regard the Lessee at Will cannot lett the Entry of the Lessor thereupon might be a Disseisin but that is ever at the Election of the Lessor And if that were now the Question perhaps the Lessor cannot take such an Entry for a Desseisin It is the Common Experience that where it comes to be tryed upon Nil debet if it be shewn that the Lessor entred into part to Answer this by proving it was the Lease of the Lessee and if the Law should not go upon this difference it would shake abundance of Rents it being a frequent thing for a Lessor to Hire a Room or other part of the thing demised for his Conveniency Hale said That a Case of a Lease for years was stronger than a Lease for Life where the remedy is by Assize and the Tenants of the Land out of which the Rent issues are to be named And for a Condition that must be extinct where part of the thing Demised comes to the Lessor because 't is annexed to such a Rent in quantity For if the Rent be diminished the Condition must fail Holland versus Ellis IN Trespass Quare clausum fregit herbas conculc ' diversas carectat ' tritici ibid ' asportavit After Verdict it was moved in Arrest of Judgment that the Declaration did not mention whose the Loads of Wheat were for it was not ibid. crescent ' Adjornatur Resolved per Cur ' That an Inquisition before the Coroner taken super visum corporis that finds that the Person was Felo de se non compos mentis may be traversed But the fugam fecit in an Inquisition before the Coroner cannot be traversed Termino Sancti Hillarij Anno 27 28 Car. II. In Banco Regis The Earl of Leicesters Case IN an Ejectment upon a Special Verdict the Case was to this effect Robert Earl of Leicester in the .. of Eliz. levied a Fine of the Lands in question to the use of the Earl of Pembrook and his Heirs for payment of his Debts reserving a Power to himself to Revoke by any Writing Indented or by his last Will subscribed with his Hand and sealed with his Seal And sometime after he Covenants by a Writing Sealed and Subscribed as aforesaid to Levy a Fine to other uses and after the Covenant a Fine was levied accordingly And whether this should be taken as a Revocation and so an execution of the Power and the extinguishment of it was the Question It was Argued by Jones Attorney General that this should not be taken as a Revocation In Powers of Revocation there is to be considered the Substance and the Circumstance and that which Revokes must be defective in neither The Deed alone in this Case cannot revoke for tho' it has the Circumstance limited viz. Indenting Writing Sealing Subscribing yet it wants Substance for it doth nothing in praesenti but refers to a future Act viz. the Fine If a man has made his Will a Covenant after that he will levy a Fine or a Charter of Feoffment made will not be a Revocation of the Will 1 Roll. 615. yet there appeared an intention to Revoke and less matter will Revoke a Will than a Deed. Again the Fine alone cannot Revoke because it is defective in the Circumstances contained in the Power but then to consider them both together how can it be conceived that the Fine should communicate Substance to the Deed or the Deed give Circumstances to the Fine But 't is Objected That they make but one Conveyance I Answer If so then the words of the Power here are to Revoke by Deed and not by Deed and Fine Again This Construction is repugnant to the words of the Power which are That it shall be lawful for him to Revoke by his Deed And yet it is agreed here that the Deed of it self is not sufficient to revoke but only in respect of another Act done which as it must be observed is executed at another time The Books agree that a Condition or Power c. may be annexed to an Estate by a distinct Deed from that which conveys the Estate but not unless both are Sealed and Delivered at the same time and so they are but as one Deed But in the present Case the Deed was made in one year and the Fine levied in another Suppose the Power to be with such Circumstances as in our Case and a Deed is made which contains some of them at one time and another Deed comprehending the rest of another time Should both these make a Revocation is one Deed Surely not Again Suppose the Fine had been Levied first and then afterwards such Deed had declared the Uses surely the Power had been extinguished by the Fine tho' there the Fine and Deed might be taken as one Conveyance as well as here Again the different natures of these Instruments makes that they cannot be taken as one entire Act within the Power for the Covenant is the Act of the party and the Fine the Act or Iudgment of the Court. But it has been Objected That this ought to have a favourable Construction I Answer But not so as to dispence with that Form the Execution of the Power is limited to be done by In the 6 Co. 33. Powers that are to divest an Estate out of another person are
taken strictly and here upon the first Fine the Earl of Leicester had no Estate left in him Mich. 6 Car. 1. in Communi Banco the Case of Ingram and Parker which tho' it may not be a clear Authority for me yet I am sure it does not make against me The Case was Catesby levied a Fine to the use of himself in Tail with Remainders over reserving a Power to himself and his Son to Revoke by Deed c. as in our Case and his Son after his decease by Deed intended to be Enrolled conveyed to one and his Heirs and after levied a Fine and it was held no Revocation First Because he having an Estate Tail in him the Deed might operate upon his Interest Secondly Because it was but an inchoation of a Conveyance and not perfected and they held it no Revocation and that the Fine levied after tho' intended to be to the Vses of the Deed yet should extinguish the Power Hale Chief Justice Vpon the close and nice putting of the Case this may seem to be no Revocation for 't is clear that neither the Deed nor Fine by it self can revoke but quae non valent singula juncta prosunt The Case of Kibbett and Lee in Hob. 312. treads close upon this Case where the Power was to Revoke by Writing under his Hand and Seal and delivered in the presence of three Witnesses and that then and from thenceforth the Uses should cease It was there Resolved that a Devise of the Lands by Will with all the Circumstances limited in the Power should Revoke yet the Delivery was one of the Circumstances and the Uses were to cease then and from thenceforth Whereas a Will which could have not effect while his Death did strongly import that the meaning was to do it by Deed and yet there the Will alone could be no Revocation for clearly he might have made another Will after and so required other Matter viz. his Death to compleat it And in that Case there is another put That if a Deed of Revocation had been made and the party had declared it should not take place until 100 l paid there the operation of it would have been in suspence until the 100 l paid and then it would have been sufficient yet there it had been done by several Acts and of several Natures the Intention in things of this nature mainly governs the Construction In Terries Case it was Ruled That if A. makes a Lease for years to B. and then Levies a Fine to him to the end that he might be Tenant to the Praecipe for the suffering of a Recovery that after the Recovery suffered his Lease should revive 'T is true in the Case at Bar if the Fine had been levied first and then the Deed of Uses made afterwards the Power had been extinguished by the Fine and so no Revocation of that which had no being could have been by the Deed. Twisden What if before the Fine levied the Intent had been declared to that purpose Hale I doubt whether that would have helped it I cannot submit to the Opinion in Parker and Ingrams Case cited viz. That the Deed not being Enrolled should make no Revocation For in case of a Power to make Leases for life it has been always held by the best Advice that the better way is to do it by Deed without Livery tho' Livery by the Common Law is incident to a Lease for life and so Adjudged in Rogers's Case for Lands in Blandford forum in Moor's Rep. where Tenant for life hath power to make Leases for life and makes a Lease by Livery 't is there held a Forfeiture tho' I conceived not because by the Deed the Lease takes effect and so the Livery comes too late Therefore the omission of Enrolling the Deed in that case does not seem to be material but if that Opinion be to be maintained it is because the party had such an Interest upon which the Deed might enure without Execution of his Power and so rather construed to work upon his Interest But that Reason does not satisfie because such an Estate as was intended to be conveyed could not be derived out of his Interest therefore it should take effect by his Power according to Clere's Case in the 6 Co. So by the whole Court here the Deed and Fine taken together were Resolved to be a good Execution of the Power and Judgment given accordingly Richardson versus Disborow A Prohibition was prayed to the Ecclesiastical Court where the Suit was for a Legacy and the Defendant pleaded That there was nothing remaining in his hands to pay it and that he had fully Administred And producing but one Witness to prove it Sentence was given against him and after he Appealed and because their Court gave no regard to a single Testimony he prays a Prohibition But it was urged on the other Side That it being a Matter within their Cognizance they might follow the Course of their own Law And tho' there are diversities of Opinions in the Books about this Matter yet since 8 Car. 1. Prohibitions have been been denied upon such a Surmize Hale Where the Matter to be proved which falls in incidently in a Cause before them is Temporal they ought not to deny such Proof as our Law allows and it would be a great Mischief to Executors if they should be forced to take two Witnesses for the payment of every petit Sum And if they should after their Death there would be the same Inconvenience In Yelv. 92. a Prohibition was granted upon the not admitting of One Witness to prove the Revocation of a Will Which is a stronger Case because that entirely is of Ecclesiastical Cognizance Wherefore let there go a Prohibition and let the party if he please Demur upon the Declaration upon the Attachment Hob. 188. 1 Cro. 88. Popham 59. Latch 117. Pigot versus Bridge IN Debt upon a Bond Conditioned for performance of Covenants and the Breach assigned was in the not quietly enjoying the Land demised unto him The Defendant pleads that the Lease was made to hold from Michaelmas 1661 to Michaelmas 1668 and that paying so much Rent Half yearly he was to Enjoy quietly and shews that he did not pay the last half years Rent ending at Michaelmas 1668. To which the Plaintiff Demurred supposing that the words being to Michaelmas 1668. there was not an entire Half year the Day being to be excluded and that it was so held in the Case of Umble and Fisher in the 1 Cro. 702. Cur ' contra 'T is true in pleading usque tale Festum will exclude that Day but in case of a Reservation the Construction is to be governed by the Intent Anonymus NOte per Hale Debt doth not lye against the Executor of an Executor upon a Surmize of a Devastavit by the first Executor For First 'T is a Personal Tort for which his Executor cannot be charged Secondly 'T is such an Action of Debt as would
have admitted Wager of Law and therefore lies not against the Executor It was difficultly brought in that Debt should lye against the Executor upon a Surmize of a Devastavit by himself But that Point is now setled but no Reason to extend it further And he cited a Case where Debt was brought against A. Executor of B. Executor of C. who pleaded that he had not of the Goods of C. in his hands To which the Plaintiff Replied That B. had Wasted the Goods of C. to the value of the Debt demanded Vpon which Issue was joyned and found for the Plaintiff and he had Judgment to recover de bonis B. in the hands of A. But that Judgment was Reversed Anonymus IF A. Engages that B. shall pay for certain Goods that B. buys of C. this is good to charge him upon a Collateral Promise but not upon an Indebitat ' Assumpsit for it doth not create a Debt Anonymus IN an Information for a Riot it was doubted by the Court whether it were Local being a Criminal Cause And it was observed that divers Statutes in Queen Elizabeth and King James's time provided that Prosecutions upon Penal Laws should be in their proper Counties Which was an Argument that at the Common Law they might have been elsewhere Taylor 's Case AN Information Exhibited against him in the Crown Office for uttering of divers Blasphemous Expressions horrible to hear viz. That Jesus Christ was a Bastard a Whoremaster Religion was a Cheat and that he neither feared God the Devil or Man Being upon this Trial he acknowledged the speaking of the Words except the word Bastard and for the rest he pretended to mean them in another Sense than they ordinarily hear viz. Whoremaster i. e. That Christ was Master of the Whore of Babylon and such kind of Evasions for the rest But all the Words being proved by several Witnesses he was found Guilty And Hale said That such kind of wicked Blasphemous words were not only an Offence to God and Religion but a Crime against the Laws State and Government and therefore punishable able in this Court. For to say Religion is a Cheat is to dissolve all those Obligations whereby Civil Societies are preserved and that Christianity is parcel of the Laws of England and therefore to reproach the Christian Religion is to speak in Subversion of the Law Wherefore they gave Judgment upon him viz. To stand in the Pillory in Three several places and to pay One thousand Marks Fine and to find Sureties for his Good Behaviour during Life Walker versus Wakeman THe Case was An Estate which consisted of Land a Rectory c. was conveyed to the use of one for Life c. with a Power to Lett the Premisses or any part of them so as 50 l Rent was reserved for every Acre of Land The Tenant for Life Demised the Rectory reserving a Rent which Rectory consisted of Tythes only and whether this was within the Power was the Question Serjeant Pemberton Argued That this Lease is not warranted by the Power for a Construction is to be made upon the whole Clause and the latter Words that appoint the Reservation of the Rent shall explain the former and restrain the general Word Premisses to Land only for if it shall be extended further the Settlement which was in Consideration of a Marriage Portion is of no effect for the Rectory As in case it should de Demised reserving no Rent which it might be if not restrained to the latter words and they applied only to the Land But it was Resolved by the Court that the Lease of the Rectory was good for the last Clause being Affirmative shall not restrain the Generality of the former And this Resolution was chiefly grounded upon Cumberford's Case in the 2 Rolls 263. where a Conveyance was made to Vses of divers Mannors and Lands with a Power to the Cestuy que use for Life to make Leases of the Premisses or any part of them so that such Rent or more were reserved upon every Lease which was reserved before within the space of Two years and a Lease was made of part of the Lands which had not been Demised within Two years before And Resolved it was a good Lease and that thereupon any Rent might be reserved because the Power was General To Lease all and the restrictive Clause should only be applied to such Lands as had been demised within Two years before Termino Sanctae Trinitatis Anno 28 Car. II. In Banco Regis MEmorandum The last Term Sir Richard Rainsford was made Chief Justice Hale Chief Justice quitting it for infirmity of Body and Sir Thomas Jones was made one of the Justices of the Court of Kings Bench. Anonymus IN an Action upon the Case brought against the Defendant for that he did Ride an Horse into a place called Lincolns in Fields a place much frequented by the Kings Subjects and unapt for such purposes for the breaking and taming of him and that the Horse was so unruly that he broke from the Defendant and ran over the Plaintiff and grievously hurt him to his damage c. Vpon Not guilty pleaded and a Verdict for the Plaintiff It was moved by Sympson in Arrest of Judgment that here is no cause of Action for it appears by the Declaration that the mischief which happened was against the Defendants Will and so Damnum absque injuria and then not shewn what right the Kings Subjects had to walk there and if a man diggs a Pit in a Common into which one that has no right to come there falls in no Action lies in such Case Curia contra It was the Defendants fault to bring a Wild Horse into such a place where mischief might probably be done by reason of the Concourse of People Lately in this Court an Action was brought against a Butcher who had made an Ox run from his Stall and gored the Plaintiff and this was alledged in the Declaration to be in default of penning of him Wild said if a Man hath an unruly Horse in his Stable and leaves open the Stable Door whereby the Horse goes forth and does mischief an Action lies against the Master Twisden If one hath kept a tame Fox which getts loose and grows wild he that kept him before shall not answer for the damage the Fox doth after he hath lost him and he hath resumed his wild nature Vid. Hobarts Reports 134. The Case of Weaver and Ward Anonymus IN Trespass in an inferiour Court if the Defendant plead son frank Tenement to oust the Court of Jurisdiction It was said by Wild that they may enforce the Defendant to swear his Plea as in case of Foreign Plea negat Twisden and as in this Court where a Local justification in Trespass c. is pleaded the Defendant must swear it But the Court held no Indictment will lie for Perjury in such Oath no more than upon a Wager of Law Anonymus IN Trover the Hab. corpora
Trover inter al' de uno Instrumento ferreo Anglicè an Iron Range After Verdict for the Plaintiff it was moved in Arrest of Judgment that Instrumentum ferreum was too uncertain and that a Range was the same with a Grate for which Crates was a proper Latin word Sed non allocatur For Crates is such a Grate as is before a Prison But a Fire Range was not in use in the Romans time and therefore Instrumentum ferreum is well enough with the Anglicè Twisden said Trover de septem libris has been held good without saying what they were Blackman's Case IT was assigned for Error that the Venire was to Summon probos legales homines instead of liberos and so a material Variance and alledged that many Judgments had been Reversed for it But the Court here being informed that the Presidents were generally probos instead of liberos would not allow the Exception The King versus Armstrong Harrison al' c. THey and others were Indicted for Conspiring to Charge one with the Keeping of a Bastard Child and thereby also to bring him to Disgrace After Verdict for the King it was moved in Arrest of Judgment that the bare Conspiring without Executing of it by some Overt act was not subject to Indictment according to the Poulterers Case in the 9 Co. And it doth not appear that he was actually Charged with the Keeping of a Child nay 't is alledged 't was but a pretended Child neither was he by Warrant brought before a Justice of Peace upon such an account but only that they went and affirmed it to the party himself intending to obtain Money from him that it might be no further disclosed Sed non allocatur For there was as much Overt act as the nature and design of this Conspiracy did admit in regard there was no Child really but only a Contrivance to Defame the Person and Cheat him of his Money which was a Crime of a very heinous nature Then it was alledged That this was tryed at the Old-Baily commonly called Justice-Hall in London and the Jury came de Warda de Faringdon extra London which appeared to be out of the Iurisdiction Sed non allocatur For the Name of the Ward is Faringdon extra to distinguish it from Faringdon infra but both are known to be in London Whereupon Judgment was Entred up against them and Armstrong which appeared to be the principal Offender was Fined 50 l and the other 30 l Burrough's Case HE and others were Indicted for that they being Church-wardens Overseers of the Poor and a Constable did contemptuously and voluntarily neglect to Execute diversa Praecepta Watranta directed to them by the Bayliffs of Ipswich being Justices of the Peace under their Hands and Seals c. It was moved to quash it for that the nature and tenour of the Warrants were not expressed in the Indictment For unless the parties know particularly what they are charged with they cannot tell how to make their Defence And for that Reason it was quashed by the Court. Note The Court never gives Costs for not Executing of a Writ of Enquiry of Damages tho' Notice be given Anonymus AN Indictment of Forcible Entry into certain Lands in the possession of J.S. was quashed for not shewing what Estate J.S. had and tho' the word Disseisivit were in the Court held that tho' that might be taken to imply a Freehold yet it was not sufficient Vid. Mo. 481. And another was quashed because it was said possessed pro termino But the Court held that if it had been pro termino annorum tho' not said for how many years it had been well Note A Bayliff caught one by the Hand whom he had a Warrant to Arrest as he held it out of a Window And the Court said that this was such a Taking of him that the Bayliff might justifie the breaking open of the House to Carry him away Kent versus Harpool AN Ejectment The Case came hither by a Writ of Error out of the Kings-Bench in Ireland and divers Points were in it which concerned the Act for Settlement of Lands in Ireland But the Case was as to the great Point at Common Law to this effect Father Tenant for Life Remainder to the Son for Life Remainder to first Son of that Son who was not born Remainder to the Heirs of the Body of the Father the Father died before the first Son was born and Whether the Descent of the Entail to the Son did prevent the Contingent Remainder was the Question It was Argued that it did not because the Inheritance came to the Son by Act in Law And the Opinion in Cordal's Case in the 1 Cro. 315. was cited the great Reason in Chudley's Case and other Cases wherein Contingent Remainders have been held to be destroyed was for the preventing of Perpetuities which would have been let in if Contingent Remainders had been preserved whatever Act had been done by those which had the Actual Estate But there is no such necessity of making the life Construction upon Acts in Law If Lessee for years makes the Lessor Executor the Term is not drowned But if the Executor that hath a Lease purchases the Inheritance the Term is gone because it is his own act but in the other Case the Law shall not work that which must be construed a Devastavit In Lewis Bowles's Case in the 11 Co. and Co. Litt. where there is an Estate for Life Remainder to the first Son Remainder in Fee to the Tenant for Life the Estates at first close and open again upon the Birth of the first Son which should take the Remainder And so it may be here But the Court seemed to be of Opinion that the Contingent Remainder was destroyed by the Descent of the Estate Tail And Rainsford Chief Justice relyed upon Wood and Ingersol's Case in the 2 Cro. 260. where a Devise was to the first Son for Life Remainder to the Son which should survive and there three Judges against one held that the descent of the Fee upon the first Son prevented the Contingent Remainder to the Survivor Et Adjornatur Note In Lewis Bowle's Case the Estates were united at the first upon making of the Conveyance Smith versus Tracy IN a Prohibition the Case was One died Intestate and whether his Brother of the Half-blood should come in for Distribution upon the new Statute of 22 23 Car. 2. cap. 10. was the Question It was Argued that the Half blood should have no share for the Words are The next of Kindred to the Dead person in equal Degree which the Half-blood is not The Words likewise are Those which legally represent their Stocks and that must be intended in an Act of Parliament such as the Common Law makes to be Representatives and not the Civil Law For then it would be that the Bastard eigne should come in for Distribution For their Rule is that subsequens matrimonium facit
meant by the name of Son As to Beckford's Case the Words are full to carry all and therefore it had been impertinent to have wrote over the Will again So where a man has two Sons named John it may be well averred that he meant the younger Son for nothing in the Will is inconsistent with such meaning The Court took time to deliver their Opinions And afterwards the Chief Justice delivered the Opinion of the Court That neither the Republication nor Parol Declaration could operate as a Devise to R. c. the Grandson Pepis's Case A Mandamus to restore him to his Place of Recorder of the Town of Cambridge The Return was That they were Incorporated by the Name of Mayor Aldermen c. with a Power to chuse a Recorder Habend ' pro termino vitae aut ad voluntat ' eligentium That Mr. Pepis was Chosen Recorder ad voluntat ' eligentium and that afterwards by the Votes of the greater number of the Electors he was removed and the Lord Allington constituted a Recorder under their Common Seal c. Vpon this Return it was moved for Mr. Pepis that altho' they had alledged a Power to Chuse a Recorder at Will yet they should have shewn Cause for his Removal being a Judicial Office which the Court takes notice of and that none had such a Power but the King to remove Judges ad libitum Again A Corporation aggregate cannot determine their Will but under their Common Seal and that is not shewn here Curia Where a Recorder is at Will they may remove him at pleasure as it is in Blagrave's Case and several other Cases As to the other Point it does not appear that he was Constituted under their Common Seal perhaps then they must have determined their Will under their Common Seal but now 't is well enough my Lord Allington is Constituted under their Common Seal which Act removes the other so it was adjudged against Mr. Pepis Termino Sancti Michaelis Anno 31 Car. II. In Banco Regis A Prohibition was prayed to the Court of Admiralty upon a Suggestion that the Suit was there upon a Contract made upon the Land The Case was thus A Bargain was made upon the Land with severl Seamen to bring up a Ship from a Port in England to London for a certain Sum to them to be paid And for the Prohibiton 't was alledged that this being upon the Land and a Contract with divers joyntly for a Sum in Gross it could not be within the ordinary Rule of Mariners Wages which is permitted to be Sued for in the Court of Admiralty in favour of the Mariners because they may all joyn in that Court and not be put to the inconvenience of Suing severally as they must at Law but as this Contract is they are to sue joyntly at Common Law But the Prohibition was denied for this must be taken as Mariners Wages And therefore tho' the Contract were upon the Land yet they have Jurisdiction Besides the Party comes after Sentence and therefore in the Courts discretion whether they will then grant a Prohibition Note A Rump Act was made to enable Mariners to Sue for Wages in the Admiralty but yet the Law was taken to be so before Vid. 3 Cro. Anonymus A Prohibition was prayed to the Ecclesiastical Court where the Libel was for these words You are a Whore and Ply in Moorfields And the Suggestion was that the words were spoken in London where an Action lies for such words and for that Cause a Prohibition was granted otherwise Suits might have been in the Court Christian for such words tho' not singly for the word Whore being a common word of brabling otherwise where joyned with words which shew the intent to Defame in that kind Anonymus AN Indebitat ' Assumpsit was brought for Goods sold and delivered The Action was laid in London and a Motion was made to change the Venue upon an Affidavit that the Sale was in Kent But on the other side it was said the delivery was in London and that were the Matter consists of two parts in several Counties the Plaintiff shall have his Election to which the Court agreed Anonymus A Man Covenants with his intended Wife to give her leave to dispose of so much by her Will and then they Intermarry the Husband having given Bond to a third person for the performance of these Covenants after the death of the Wife the Husband is Sued upon the Bond for not permitting her Will to be performed And upon Oyer of the Condition it was insisted on for the Defendant that these Covenants were discharged by the Marriage and so the Bond likewise loseth its force Vid. Hob. 216. Et Adjornatur Anonymus A Motion was made to quash an Inquisition of forcible Entry it was Inquisitio capta per Juratores super Sacramentum suum coram T. S. J. N. Justiciariis c. qui dicunt super Sacramentum praed ' And it was objected That qui dicunt c. referring to the last antecedent it was that the Justices say Sed non allocatur for super Sacramentum praedict ' makes it certain Note The Caption of an Indictment may be amended the same Term it comes into Court Anonymus AN Indictment for not taking upon him and executing the Office of a Constable to which he was chosen by the Leer The question was Whether a Tenant in antient Demesne were obliged to that Office And the Court held that he was Termino Sancti Hillarij Anno 31 32 Car. II. In Banco Regis Anonymus IN Ejectment upon a Special Verdict the case was thus A Lease was made A. and B. for their Lives Remainder to the first Son of A. c. Remainder to the Heirs of A. B. conveys his part to A. The question was Whether the Contingent Remainder to the first Son were destroyed Holt argued that it was For a Contingent Remainder must have some particular Estate of Freehold to support it and by the Release of B. his Estate was gone and there became an intire Fee in A. For by whotsoever means a Joynt tenant for Life conveys his Moiety to his Companion it does not enure by Grant of the Estate but by Release as Eustace and Scawens Case 2 Cro. 696. A. and B. Joynt tenants for Life A. Levy's a Fine to B. B. dies there shall be no Occupancy of the Moiety of A. during the Life of A. Jones 55. and the Case of Lewis Bowels 11 Co. is not to be objected where an Estate for Life was made to B. and F. the Remainder to their first Son that they should have in Tail Remainder to B. and F. in Tail here tho' an Estate in Tail is executed in B. and F. until a Son Born yet after upon the Birth of the Son the Contingent Remainder shall vest and split and divide the former Estate 2 Co. 60.61 but here the Fee becomes executed by several Conveyances but there the Estate
because the Intent of the parties appears that it should be so There 's no great difference between the Construction of a Deed of Uses and a Will 13 H. 7. The Wife takes an Estate for Life by Implication where the Land is devised to the eldest Son after her decease Manning and Andrew's Case in 1 Leon. 259. The Reason of these Cases is the fulfilling of the Intention of the Parties and here this Limitation cannot be made good by way of a Future Use nor by any other way but only by creating of an Estate for Life in Michael the Father by Implication and this is according to the nature of a Covenant to stand seiz'd For the Use is not to pass out of the Covenantor till the proper time for the subsequent Estate to commence As to my Lord Paget's Case 't was his Intention to have the Use during his Life And my Lord Coke was certainly very well satisfied with the Resolution in Fenwick and Mitford's Case when he wrote his Institutes for he Argued before to the contrary as appears by the Report of that Case in Moor. Rainsford Justice to the same Intent If no Use rises immediately to Ralph yet if a Use rises by the Deed so that he has the Land any way be it by discent from his Father 't is within the Conclusion of the Verdict By the scope of the Conveyance it appears that it was intended that Robert should never have his Land till Twelve hundred Pound was paid for the provision of younger Children so that if Robert should have it it would be against the Intention of Michael There are two Reasons and Grounds in Law by which we may make this Deed agree with the Intention of the Parties First Because it is in the Case of an Estate Tail ubi voluntas donatoris observari debet Secondly It is in a Conveyance setled by way of Use and in Cases of Uses the Intention of the parties ought to be pursued And this is in Case of a Use that rises by Covenant to stand seiz'd which makes the Case the stronger And I conceive this is not a void Limitation but such an one as gives an Estate to Ralph In speaking to which I shall observe what my Lord Coke in the 1 Inst 23. says viz. That so much of the Use as the Owner of the Land does not dispose of remains in him c. and so in Cownden and Clark's Case in Hob. 30. And this is the Reason of Bingham's Case 1 Co. 91. Now here when Michael Covenanted to stand seiz'd to the Vse of his Heirs Male on the Body of his second Wife begotten I conceive he shall retain the Land as parcel of his ancient Vse during his Life for non est Haeres viventis according to Archer's Case 1 Co. And that Michael shall retain an Estate for Life is prov'd by my Lord Paget's Case 1 Co. 154. Dyer 310. N. 79. 1 Co. Chudleigh's Case 129. 2 Rolls 788. 21 H. 7. 18. From my Lord Paget's Case upon which I shall rely and the other Cases it appears that were there 's a Limitation to one after the death of another the Covenantor shall retain the Land during the Life of the other and here in our Case this Estate not taking effect till after the Death of Michael he shall retain the Estate and shall be Tenant for Life of the old Vse Now the Question is Whether Ralph shall take by Discent or Purchase And I conceive this Estate for Life with the Remainder in Tail makes but one Estate Tail in Michael and that he becomes Tenant in Tail and so Ralph shall take as Heir in Tail I shall not trouble my self whether Ralph may take here as a Purchaser because in Cownden and Clark's Case in Hob. it is Resolved that he cannot take as Heir Male of the Body by Purchase because all the words are not verified in him for he is not Heir I shall rely upon the First Point That here is an Estate Tail executed in Michael For when an Estate for Life is in the Auncestor by way of Retainer and an Estate is afterwards limited to his Heirs this is within the Rule put in Shelley's Case in 1 Co. where the Auncestor takes an Estate of Freehold and by the same Conveyance an Estate is limited to his Heirs Mediately or Immediately they are Words of Limitation and not of Purchase because the Heir is part of his Father Our Case is stronger that Fenwick and Mitfords Case It s true the same Reason for that Case is not given by Anderson and More which is given by my Lord Coke More 437. There the Reason is because the Limitation to the right Heirs is merely void here Michael hath an Estate in Tail of the ancient Use therefore 't is not necessary for the Law to create an Estate for Life Obj. That this cannot be an Estate Tail executed in Michael because the Estate for Life is not by the same Limitation but by Construction of Law But my Lord Coke says in Fenwick and Mitfords Case 1 Inst 22. b. that there is no difference where the Estate is created by Law and where by the Deed. 1 Anderson 259. and the Law retaining an Estate in Michael for Life our Case is the same as if the Estate had been limited to him with the Remainder to his Heirs Male begotten on his second Wife which would be an Estate Tail executed in Michael and would have discended to Ralph Twisden Justice for the Plaintiff I hold there 's no Use raised to Ralph by this Deed. We are here in the construction of a Deed and not of a Will It may be an Estate should be raised in such a case by a Will altho' my Lord Hobart is of a contrary Opinion I agree the Case of Hodgkinson and Wood Cro. Car. 23. but it cannot be argued from thence that it shall be so in a Deed for a Devise is not to take effect till after the Death of the Devisor and then 't is apparent that he is Heir Male of his Body It hath been agreed that Heirs Male of the Body are words of purchase It is plain that Ralph cannot take as Special Heir unless by Purchase and that he cannot do because he who shall take by virtue of such a Limitation ought to be Heir as well as Issue Male and Ralph here cannot take by vertue of the Statute de Donis Conditionalibis because none can take as Special Heir but where his Ancestor took before and therefore this Limitation is utterly void To make this Limitation good divers ways have been urged First That this Deed has an operation by way of returning of the Use and it has been compared to my Lord Pagets Case which differs from it here cannot be any part of the old Use in Michael for if he hath an Estate for Life it ought to be a new Use It cannot be a returning Use for the Limitation to the Heirs Male of the Body
Estate Tail in Michael First Because in this Case the Use returns by operation of Law and executes an Estate in Michael for Life which being conjoined to the Estate limited to the Heirs Male of his Body makes an Estate Tail This Estate for Life rising by operation of Law is as strong as if it had been limitted to him for his Life and after his decease to the Heirs Male of his Body Secondly Because that a Limitation to the Heirs Male of his Body is in Construction of Law a Limitation to himself and the Heirs Male of his Body There is a great difference when he who has the Use limits it to A. for Life the Remainder to the Heirs of the Body of B. here no Estate can rise to B. because nothing moved from him but where he who has the Estate limits it to the Heirs Male of his own Body ut res valeat he shall have it for his Life Thirdly It is plainly according to the intent of the Parties the intent perfectly appears that the Issue by the second Wife should take and that Robert the eldest Son should not take till so much Money be paid therefore if we can by any means serve the intent of the parties we ought to do it as good Expositors For as my Lord Hobart says Judges in Construction of Deeds do no harm if they are astuti in serving the intent of the Parties without violating any Law Obj. Here the Use being never out of Michael he hath the ancient Use which is the Fee simple and consequently being the ancient Use and this being a new Limitation to the Heirs Male of his Body the ancient use and the new one cannot be piec'd to make an Estate Tail executed in Michael but it shall be a Contingent Use if any which ought to rise to the Heir Male of his Body and so remains the ancient Fee simple And it hath been compared to these Cases If a Man Covenants to stand seized to the Use of J.S. or of his Son after his Marriage or after the Death of J. D. these are Contingent Limitations and there is a Fee simple determinable in the Covenantor to serve the future Uses Resp 'T is true if a Man Covenants to stand seized to such Uses as that he leaves a discendible Estate in himself As if a Man Covenants to stand seized to the Use of his Son from and after his Marriage this is purely a Contingent Use because t is possible the Marriage may never take effect and nothing is fetch'd out of the Covenantor so if he Covenants to stand seized to the Use of J. S. after 40 years there is a Fee simple determinable in the Covenantor and therefore those Cases are not to be resembled to our Case where the Estate of Michael cannot continue longer than his Life And this without any wrong done to any Rule of Law may be turned to a Use for Life and therefore such construction shall be Object 2. Here is an Estate to rise by way of Use by a Deed and not by a Will which shall not be by Implication by a Deed. Resp It s a certain truth But we are not here upon raising an Estate by Implication but qualifying an Estate that is now in the Father which by this new Deed is to be qualified to be an Estate for Life to preserve the Estate Tail so that the Cases of Implication are not to the purpose Object 3. In this Case Michael shall be in of his ancient Estate in Fee simple which is in him and not of a new Estate created by Implication of Law and it hath been compared to the Devise of Land to a Mans Heir he shall not be in by the Devise but of his ancient Estate that would have descended to him Resp True But in this Case a Man may qualifie his Estate as in Gilpins Case Cro. Ca. 161. Devise to his Heir upon Condition that he shall pay his Debts in a year the Heir is a Purchasor so here is a qualification to turn the Estate of Michael into an Estate for Life ut res valeat Object 4. Michael had not an Intention to have an Estate for Life for in the Limitation of the other Lands he has limited them expressly to himself for Life and if he had intended to have had an Estate for Life in the Lands in question he would also have so expressed it Resp The intention will not controul the operation of Law his main intent was to settle the Lands upon his younger Children this the Law serves but not his secondary intentions If a Man Covenants to stand seized to the Use of himself for Life without impeachment of Wast and afterwards to the Use of the Heirs Male of his Body the Law supervenes his intention and makes him to be Tenant in Tail And in our Case there was a necessity to limit the other Lands to himself for Life because there was another Estate to intervene the Estate for Life and the Estate Tail The Reason given by my Lord Coke in Fenwick and Mitfords Case is plain enough and it appears that he was of that Opinion afterwards by the Report of Pannel and Lanes Case 13 Jac. in Rolls Rep. 1 part 238. The Case upon which I shall rely which has not been answered is my Lord Pagets Case adjudged by all the Judges of England Tho. Lord Paget Covenants in consideration of the discharge of his Funerals Payment of his Debts and Legacies out of the profits of his Land and for the advancement of his Son Brother and others of his Blood that he and his Heirs would stand seized of divers Mannors to the Use of T.F. one of the Covenantees for the Life of my Lord Paget and after his Death to the Use of C. Paget for the term of 24 years and then to the Use of W. Paget his Son in Tail with Remainders in over and afterwards the Lord Paget was aâ—â—â—nted of Treason And it was adjudged that the Lord Paget himself had an Estate for his Life for the Remainder being limited after his Death the Estate cannot pass out of him during his Life and there in Case of a Covenant to stand seized he himself hath an Estate for Life And this is not because the Estate returns as my Brother Twisden has said but because the Estate was never out of him and cannot return either from the Heir or the Covenantee otherwise where should it be during the Life of the Lord Paget who was attainted the Book is that it was never out of him but was turn'd into an Estate for Life So that now it is all one as if he had Covenanted to stand seized to the Use of his eldest Son after his Death And the question is What Estate he has during his Life It is adjudged that he has an Estate for Life for if there had been a Contingent Fee simple in the Lord Paget his Heir could never have had an Amoveas manus
for if a Man Covenants to stand seized to a Contingent Use and afterwards is attainted of Treason before the Contingency happen the Contingency shall never rise for the King has the Estate discharged and the Use is to rise out of the Estate of the Covenantor so is Moor Sir Tho Palmers Case 815 In Moors Rep. of my Lord Pagets Case 194. It s said that W. Paget had an Amoveas manus for the Estate of the Queen leased by the Death of my Lord Paget In Sir Francis Englefeilds Case Popham 18. n. 7. It s resolved that no Use rises because t is that it shall Discend Remain or Come which is uncertain but if he had Covenanted that after his Death he and his Heirs would have stood seized to the Use of John an Use would have resulted to Sir Francis Second Point I conceive if it be impossible for Ralph to take by Discent this would be a Contingent Use in him by Purchase The great Objection against this is that the Limitation is to an Heir and an Heir which ought to take by Purchase ought not to be only Heir of the Body c. but Heir general Of this I am not well satisfied I conceive the Remainder being limited to the Heirs of the Body of Jane begotten by Michael such a Limitation will make a special Heir to serve the turn and t is not to be resembled to Shelley's Case My Reasons are First Because at the Common Law before the Statute de Donis notice was taken that this was a special Heir and therefore 't is no wrong done to make him here a qualified Heir In the Statute de Donis 't is said When Lands are given to Man and his Wife and the Heirs of their two Bodies begotten Secondly Vpon the special penning of the Deed it is apparent that Michael took notice that he had an Heir at Common Law therefore it can't be intended that he meant here such an Heir that should be Heir general to him this would be Contradictio in Adjecto Litt. Sect. 352. puts this Case If a Feoffment be made upon Condition that the Feoffee shall give the Land to the Feoffor and his Wife and the Heirs of their two Bodies begotten In this Case if the Husband dye living his Wife before the Estate Tail is granted to them the Feoffee ought to make the Estate as near the Condition and as near the intent of the Condition as may be viz. To let the Land to the Wife for her Life without impeachment of Wast the Remainder to the Heirs of the Body of the Husband on her begotten If the Husband and Wife dye before the Gift made then the Feoffee ought to make it to the Issue and to the Heirs of the Body of his Father and Mother begotten Suppose that this had been to a second Wife and there had been Issue by a former the Book of 12 H. 4. 3. says that there it shall be in another manner but Litt. says it shall be as near vid. Litt. Sect. 22. Morevils Case Fitzh Tail 23. 2 Ed. 3. 1. 4. Ed. 3. 50. by all these Cases it appears that no regard is had whether the Son be Heir of the Husband if he be Heir of their two Bodies Therefore it seems that by this Limitation Ralph shall take by way of Contingent Remainder For Heirs of the Body of the second Wife is a good name of Purchase I have not read any Case against this Hill 16. or 26 Eliz. there was this Case A Man taking notice in his Will that his Brother who was dead had a Son and that he himself had three Daughters who were his right and immediate Heirs he gave them 2000 l and gave his Land to the Son of his Brother by the name of his Heir Male. Provided If his Daughters troubled his Heir then the Devise of the 2000 l to them should be void And it was resolved that the Devisor taking notice that others were his Heirs the Limitation to his Brothers Son by the name of Heir Male was a good name of Purchase and this agrees with Cownden and Clarks Case in Hob. Wild Justice said he was of the same Opinion with Hale in this last Point And Iudgment was given for the Defendant Three Learned ARGUMENTS One in the Court of Kings-Bench BY Sir FRANCIS NORTH Attorny General And Two in the Court of Exchequer BY Sir MATTHEW HALE Chief Baron there The Argument of Sir Francis North. In Banco Regis Potter and Sir Henry North. IN a Replevin for taking of an Horse in a certain place called the Fenn at Milden-Hall in the County of Suffolk the Defendant makes Cognizance as Bayliff to Sir Henry North and saith That the place Where c. containeth Ten thousand Acres of Pasture in Milden-Hall whereof a certain place called Delfe is parcel and that it is Sir Henry North's Freehold and the Horse was Damage feasant there c. The Plaintiff Replies Confessing the Soyl to be the Freehold of Sir Henry Norths but says That time whereof c. the place Where hath been parcel of the Fenn and parcel of the Mannor of Milden-Hall of which Sir Henry North is seised in Fee and that the Plaintiff was at the time c. seised of an Ancient Messuage one of the Freeholds holden of the Mannor by Rents and Services and parcel of the said Mannor and that Time out of Mind there were divers ancient Freehold Messuages holden of the said Mannor by Rents and Services and divers Copyhold Messuages parcel of the said Mannor by Custom of the said Mannor demised and demisable by Copy of Court Rolls of the said Mannor And the several Tenants of the said Freehold Tenements being seised in their Demesn as of Fee and they whose Estate they have in the same Time out of mind have had together with the Customary Tenants of the said Customary Tenements the sole and several Feeding of 100 Acres of Pasture for all Beasts except Hogs Sheep and Northern Steers levant and couchant upon their several Freeholds every year at all times of the year as to their several Freeholds belonging And that within the said Mannor there is and Temps d'ont c. hath been such a Custom that the several Tenants of the Customary Messuages together with the Freeholders aforesaid have used and accustomed to have the sole and several Feeding of the said 100 Acres of Pasture for all their Beasts except Sheep Hogs and Northern Steers levant and couchant upon their several Copy-holds every year at all times in the year tanquam ad seperal ' Tenementa customar ' spectant ' pertinent ' and the Plaintiff being seised put in his Horse c. and so Iustifies Vpon this the Defendant demurs generally This Prescription is naught in substance and Judgment ought to be given for the Defendant upon these Four Exceptions First That several Freeholders cannot joyn or be joyned in a Prescription to claim an entire Interest in another mans Soyl as
the Sheriffs Farm but he made Bayliffs of his own there and they were within the Survey of the Court of Augmentations so I say it refers only to those Hundreds which made a part of the Sheriffs Farm 2. None of these Statutes extend to prohibit a Grant of an Hundred in Fee I apprehend my Lord meant a Regrant of an Hundred which before those Statutes had been granted out in a Fee for 2 E. 3. c. 12. rejoyns and prohibits the Grant of those Hundreds only which were set to Farm by the King for term of Life or otherwise The very words of the Statute 14. E. 3. c. 9. make provision for the Hundredors in Fee 't is said that they which have Bayliwicks or Hundreds c. shall answer for their Bayliffs Fitzh Petition 1. there is a complaint of one who is turned out of an Hundred he had in Fee because of the Statute called there the New Statute And perhaps these Hundreds were seised upon the like pretence and that was the matter of the Presentment mentioned in the Grant of E. 3. or rather Regrant 3. Neither this Statute nor the Decree or Report of the Case in this Court does extend to this Case for they are not to be understood of nor extended to a Case wherein Retorna Brevium is granted were not Retorna Brevium added 't is true the Grant of the Bayliwick might be void where an Hundred is granted at this day the Grant is good but by Virtue of this Statute the Sheriff may put in and use his Bayliffs there the collection of the Profits c. the Grantee shall have but the execution of Writs is in subserviency to the Sheriff still I speak where no Retorna Brevium is granted this Bayliff shall not be a Bayliff to the Sheriff in spight of his Teeth and this was the very Case of Fortescue he had a Grant of the Three Hundreds of Newport We find the Farm of these Hundreds formerly here in the Exchequer the Firma Ballivatus in Chiltern c. the Farm of the three Hundreds of Newport was 5 l then in 13 E. 3. 7 l then in 23 E. 3. 9 l then in R. 2. 10 l c. these were the ancient Farms Queen Elizabeth grants a Lease of these three Hundreds to Fortescue for three lives at a certain Farm but does not grant him Retorna Brevium This grant indeed was adjudged void viz. as to the excluding of the Sheriff observe what my Lord Coke saith in the Case by the Statute c. saith he Hundreds are rejoyned as to the Balywick of the same to the Counties and all grants made of the Balywicks of Hundreds since that Statute are void and the making of the Bayliffs thereof belong to the Sheriff for the better execution of Iustice and of his Office and so it was resolved c. the Grant at this day is good as to what belongs to the Lord of an Hundred but not as to the execution of Process which belongs to the Sheriff so that I say 1. Consider the Grantee as an Officer for the collection of the Profits c. and so it is a good Grant 2. Consider him as an Officer for the Kings Process and so 't is void because the Sheriff ought not to have a Bayliff put upon him and the Grantee shall not be the Sheriffs Bailiff whether the Sheriff will or no. But 3. I say if the Grant be with Retorna Brevium then it is a good Grant as to the Bayliwick and all for in that Case the Sheriff is at no inconvenience for the Grantee shall do all and shall be liaable to all the Escapes and all things done or suffered by him My Lord Coke was very wary in what he said about this matter for he knew and the truth is if this Statute should make the Grants of Hundreds void it would call in question most of the Hundreds in England and particularly would shake his own Grants of Hundreds which he passed when Attorney General and some of which his Posterity enjoy at this day 8 H. 7. fol. 1 2 3 4 5. and 13 H. 7. fol. 19 20. Pl. 2. is a great Case concerning an Hundred granted by Ed. 4. and afterwards by R. 3. wherein there are many Questions much argued whereof the chief is whether a Leet may be granted and pass as part and parcel of a Hundred and 't is adjudged that it may but it is the Opinion of all on all sides that the Grant of an Hundred is good and so much is implied and concluded in the Iudgment Coke upon Amerediths Case 9. Co. 29 30. there Iudgment is given that the Grant of the Hundred is good I know that in 11 H. 4. by Special Act of Parliament vid. 1 H. 4. c. 11. the Sheriffs had an allowance made to them for several Hundreds which had been parcel of their Farms and were granted away which could not have been if this Statute had made the Grants void I think there ought to be Judgment for the Plaintiff Nevertheless I am glad with all my heart that we are delivered of this Case for truly if I could have found any Thing to satisfie my Iudgment I would have given Iudgment another way both for the General Concern and for the sake of the County of Gloucester which I know will suffer much by this thing One short Act of Parliament of three Lines viz. That all Process should go with a non omittas propter aliquam libertatem saving still the Liberty of a Mans House which indeed the Law in all such Cases saves now would avoid a great delay of Justice many Suits and Vexations grievous Wrongs and oppressions and would do more good to the Kingdom than all the Liberties of Retorna Brevium have been worth these 100 years for as they are used now they are nothing but a foundation of Brocage and Mischief they are a Feather in his Cap that has them but they are a Thorn in the Foot of every one that has to do with them For first the Party must go to the Undersheriff and there he is handled then through another Purgatory to the Bayliff of the Liberty and there he is handled and then to the Underbayliff and there he is handled and then to the Sheriff again I confess I drew a short Act once and I wish some good man would now promote it It is adjourned into the Exchequer Chamber THE CASE OF COLLINGWOOD and PACE IN THE Exchequer Chamber The Lord Chief Baron HALE's Argument IN the Argument of this Case I shall suppose as clear and unquestionable these three things viz. First That Patrick the Son and William the Grandson of Nicholas the elder Brother are not inheritable to John the Earl because though they are both Denizens born yet Nicholas their Father thorough whom they must convey their Pedigree was an Alien Secondly That as Patrick and William cannot inherit so neither can they obstruct the Discent to John the Son of
that he should suffer a Recovery his Term is not drowned 195 Tenant for Life with power to make a Jointure suffers a Recovery the Power is extinguished 226 227 Good tho' a Stranger that hath nothing in the Land be made Tenant to the Praecipe for a Recovery being a Common Assurance is to be favourably expounded 358 Whether a Recovery can be suffered where the Tail is expectant upon an Estate for Life the Tenant for Life not being made Tenant to the Praecipe 360 Release See Obligation Of all Demands its effect 314 Remainder Contingent Remainder by what Act destroyed 188 306 334 345 No Cross Remanders upon Construction in a Deed tho' sometimes in a Will 224 Rent Difference between a Rent and a Sum in Gross 99 Lease by Tenant in Fee and Rent reserved to the Lessor Executors Administrators and Assigns the words Executors and Administrators void 162 A Rent may be reserved by Contract without Deed 242 Where Rent shall be suspended and where apportioned by the Lessors Entry 276 277 Reputation Lands repurted parcel of a Mannor shall pass in a Recovery under the Word Appurtenances 52 Retorn Sheriff amerced for retorning Non est inventus on the Writ brought against his Bayliff 12 24 Sheriff retorns that Goods came to the Executors hands elongavit vendidit disposuit ad proprium usum suum convertit this tantamounts to quod devastavit 20 221 Sheriff retorns upon a Fi. fa. that he had taken Goods and that they were rescued from him not good 21 Action against Sheriff for a false Retorn of Cepi Corpus 85 Revocation What shall be a good Revocation upon a Power reserved 278 infra S. Scandal See Action upon the Case for Slander Scandalum Magnatum I do not know but my Lord of P. sent G. to take my Purse Action lies 59 Difference between an Action on the Statute of Scandalum Magnatum and a Common Action of Slander the Words in one Case shall be taken in mitiori sensu and in the other in the worst sense against the Speaker that the Honour of Great Persons may be preserved 60 Sewers Commissioners of Sewers and their Proceedings subject to the Jurisdiction of the King's Bench notwithstanding the Clause in Statute 13 Eliz. cap. 9. 67 Sheriff Sheriff may bring Trover for Goods taken in Execution and after taken away by the Defendant in the first Action 52 Soldiers Every Officer and Soldier as liable to be arrested as a Tradesman or any other person whatsoever 251 A Captain and Serjeant committed to Newgate for a great Misdemeaner in rescuing a Soldier ibid. Statutes When a Statute makes an Offence the King may punish it by Indictment but an Information will not lie when a Statute doth barely prohibit a thing 63 31 Ed. 1. Statute of Winton in an Action upon this Statute what taking shall be sufficient to discharge the Hundred 118 235 4 Ed. 3. cap. 7. Action lies for Executors upon this Statute for cutting and carrying way Corn 187. This Statute hath been always expounded largely ibid. 3 H. 7. cap. 2. A Wife forcibly married contrary to this Statute shall be admitted to give Evidence against her Husband 244 5 Eliz. cap. 4. For using a Trade not being Apprentice thereto 8 51 142 326 346 364. This Statute in relation to Apprentices expounded 174 31 Eliz. cap. 7. Of Cottages no Offence against this Statute to erect a Cottage if no body inhabits therein 107 43 Eliz. cap. 2. Poor By this Statute that enables Justices of Peace to tax a Neighbouring Parish the Justices may tax any of the Inhabitants and not the whole Parish 350 21 Jac. cap. 26. Of Felony to Personate 301 12 Car. 2. Of Ministers A good Act being made by King Lords and Commons and any defects in the Circumstances of calling them together ought not to be pried into 15 This Act extends only to Benefices with Cure ibid. 14 Car. 2. cap. 10. 16 Car. 2. cap. 3. Harth-mony Smiths Forges shall pay 191 192. So empty Houses 312 14 Car. 2. cap. 33. Of Printing Seditious Books 316. 16 Car. 2. cap. 7. Of Gaming Articles for above 100 l at a Horse Race within this Statute 253 254 17 Car. 2 cap. 2. Of Non Con-Ministers explained 328 29 Car. 2. Of Frauds and Perjuries No Promise made before the 24th of June within this Act 330. What Contracts within ths Act 361 31 Car. 2. Habeas Corpus Prayer must be made by Council wiihin the first Week after the beginning of the Term 346 T. Tail THO' a Term in gross cannot be entail'd yet where man hath a Term in point of Interest and at the same time the Trust of the Inheritance here he may entail the Trust of the Term to wait upon the Inheritance 194 What Words create an Estate Tail and what in Remainder contingent or vested 215 230 231 Estates Tail how forfeitable for Treason 299 infra A Devise to a Man and the Heirs Males of his Body with a proviso if he attempts to alien the Estate to cease the Condition void 321 322 A Limitation in Tail how it operates 378 Tender Tender and refusal is as much as payment 167 Tender where not good 252 261 Teste Where the Teste of a Writ before it was taken out is notwithstanding good 362 Tythes May be paid of a Warren by Custom 5. So of Doves and Fish ibid. Whether an Executor may bring Debt upon the Statute 2 E. 6. for Tythes due to the Testator 30 31 Where and what Modus shall bar the Recovery of Tythes in specie 32 A Prescription cannot be suggested time out of mind to pay a Modus for Tythe Hops since they were not known in England till Queen Elizabeth's time 61 Tythes of VVood tho' not Fewel payable unless exprest to be burnt in a House for the maintenance of Husbandry 75 Treason In Coyning and Clipping the Judgment 254 For raising a Rebellion in Carolina 349 Trespass See Pleading Quare Clausum fregit and threw down his Fences what Plea in Justification good 221 Continuando in Trespass where good and where not 363 Trust See Tayl. A Use in former time the same with what a Trust is now 130 Where a Trust for Life Remainder over with Power of Revocation is forfeitable and where not 128 infra Whether a Trustee is compellable to produce Writings or the Key of the Box wherein they are against the Interest of the Party for whom he is Trustee 197 Tryal See Venue What shall be Cause for new Tryal what not 30 Justices of Assize may try Informations tho' commenced before the Justices of a former Assizes 85 181 V. Venue WHere a Deed is forged at S. and given in Evidence at D. from whence the Venue ought to come in an Information thereupon 17 A Breach of Covenant assigned in Barwick the Venue shall arise from the next place in Northumberland 58 Judgment by Nihil dicit reverst after a Writ of Enquiry executed because no
Plaintiffs and assign a Breach on the Defendants part Defendant pleads quod Testator nihil habuit in Tenementis The Plaintiffs demur to the Plea 98 4. By an Assignee of an Assignee against an Executor 117 The Declaration sets forth the Demise and that the Defendants Testator Covenanted to pull down three old Houses and build three new ones in their room and to keep the same in good repair and so deliver them up at the end of his Term 119 Sets forth the Plaintiffs Title to the Reversion by Assignment from the Lessor 119 120 And that the Tenant for years Attorned 121 That the Tenant in possession died and left the Defendant his Executor c. The the Plaintiff hath performed all and singular the Covenants on the part of the Lessor and his Assigns Protestando that the Defendant hath not performed those on the part of his Testator 122 He assigns a Breach in facto for permitting once of the new erected Houses to fall down before the end of the Term and other defaults in not Repairing Et sic the Defendant Convenconem non tenuit 123 The Defendant pleads performance specially to each Breach assigned and says that his Testator pull'd down the three Houses and built other three Houses in their room which he kept in Repairs and so delivered at the end of his Term 124 The Plaintiff demurs to the Plea as not being sufficient as to the leaving one House totally prostrate and ruined as the Plaintiff declared The Defendant joyned in Demurrer 125 5. Against the Assignee of an Executrix 228 The Declaration sets forth That the Plaintiff was possest of a Term for years yet in being by Indenture demised to the Testator for 21 years at the yearly Rent of c. 229 With a Clause of Re-entry and Covenants 230 That the Lessee entred made his Will made the Assignor his Exetrix and died That she proved the Will entred and assigned to the Defendant who entred and is still possest The Breach assigned was in the Non payment of Rent 231 The Defendant pleads That he assigned over before any Rent due 232 Demurrer to part of the Plea Joynder in Demurrer Judgment for the other part 233 Cesset executio Brevis de Inquirendo de dampnis quousque the Demurrer be determined 234 6. In Covenant the Plaintiff declares upon an Indenture of Demise from the Defendant 272 Profert in Curia The Demise Habendum Reddendum The Covenants on the Plaintiffs part 273 Covenants on the Defendants part for himself and Assigns to permit to make a Drain The Plaintiff entred and was possest and avers performance of all Covenants on his part The Breach assigned Eo quod the Defendant being possest of certain Tenements adjoyning for a Term of years did demise part of the Term to J. S. who entred 274 And died possest And Administration granted to his Widow who entred and was possest and took Husband The Husband and Wife entred and were possest and refuse to suffer the Defendant to make the Drain Et sic inde producit sectam 275 The Defendant pleads That he permitted the Plaintiff to make a Drain according to Covenant but the Plaintiff refused it The Plaintiff demurs The Defendant joyns in Demurrer 276 D Debt 1. IN Debt upon a Bond the Defendant craves Oyer of the Condition and pleads the Statute of Vsury 80 He sets forth the Usurious Contract the Money lent and the Bond in question given for it and that the Money for Forbearance exceeds the rate of 6 l per Cent. 81 The Plaintiff Replies That the Bond was made by a Scrivener in his absence who mistook the Condition and Traverses the Corrupt Agreement The Defendant demurs to the Replication The Plaintiff joyns 82 2. Debt upon a Bond to perform an Award 110 The Defendant craves Oyer of the Condition and pleads that the Arbitrators made no Award but that they named an Umpire who made no Award by Writing or Word of Mouth 111 The Plaintiff replies That true it is that the Arbitrators nor the Umpire by them first Chosen made any Award but refused whereupon the Arbitrators chose another Umpire who mad an Award within the time limitted 112 The Defendant demurs specially and assigns for Cause That it does not appear by the Replication that the Defendant had Notice that the Arbitrators had named the second Umpire or that he had any Authority to make any Umpirage The Plaintiff joyns in Demurrer 113 3. For Rent against an Executrix upon a Lease parol 176 The Declaration sets forth the Demise to the Defendants Testator of the 4th part of two Corn Mills and of one Mault-Mill under the same Roof to hold for one year sic de Anno in annum as long as both parties shall please paying Monthly for the same the Sum of 60 s 4 d ob so long as the said Testator should hold the Premisses and shews that he entred and held it for so long and that the Rent is due and unpaid for so many Months per quod actio accrevit 176 He also sets forth another Demise from year to year so long as both parties shall please at the yearly Rent of 20 l to be paid Quarterly by equal Portions the Tenants Entry the Rent arrear per quod actio accrevit Another Demise at Will laid Entry Rent arrear Actio accrevit 177 Another Demise at Will laid of the 4th part of another Mill Entry Rent arrear Actio accrevit the The Testator in his Life time nor the Executrix post mortem have not paid 178 The Defendant pleads in Abatement That the Tenant died Intestate and that Administration was granted to her and therefore ought to be sued as Administratrix and not as Executrix 178 The Plaintiff replies That the Defendant administred as Executrix before the granting the Administration to her The Defendant demurs to the Replication The Plaintiff joyns 179 4. Debt upon Bond. The Defendant craves Oyer of the Condition which is to perform an Award 219 Pleads That the Arbitrators made no Award The Plaintiff replies and sets forth the Award made in Writing and assigns a Breach in not paying a certain Sum of Money awarded 220 The Defendant demurs The Plaintiff joyns 221 5. Debt upon a Sheriffs Bond 234 The Defendant prays Oyer of the Condition which was to appear in Chancery to answer a Contempt Pleads the Statute of 23 H. 6. That an Attachment issued out of Chancery delivered to the Plaintiff being Sheriff who caused the Defendant to be arrested and after took the said Bond for his Appearance 236 Contra formam Statuti praedicti sic scriptum Obligatorium illud c. vacuum in lege existit The Plaintiff demurs to the Plea The Defendant joyns 237 6. Debt upon Bond Condition'd to perform an Award 239 The Defendant pleads that the Arbitrators made no award The Plaintiff replies and sets forth an Award made ore tenus 240 Notice of the Award and request for the Performance of it
late Case and if this sicut debuit is not sufficient 't is laid further in the Declaration that he did not permit the Plaintiff to have the benefit of this Foldage But the Court held the Declaration insufficient for that there is no Authority in any Book of Law to shew that the word Faldagium did imply so much as was pretended on the Plaintiffs part Faldagium is to have Sheep folded in his ground as Falde cursus is a Sheep-walk or feed for his Sheep and if it be the usage in case of Foldage for the Owner of the Sheep to bring his Sheep to the Fold it ought to have been so set forth for the Court cannot take notice of the private usages of Countries and if the Faldagium did imply what the Plaintiff would have it then it should have been set forth that the Plaintiff had set up a Fold in the Land where the Sheep were to have been folded for he was to do the first act which must have been shewn if all the particulars had been set forth and sicut debuit is not enough here for the obscurity of the word Faldavit so that it doth not appear to the Court what ought to have been done on the Defendants part and to say non permisit Querentem habere beneficium Faldagii was not good without shewing how he disturbed him as 8 Co. in Francis Case Sed nota That was upon Demurrer but here 't is not said non permisit the Plaintiff habere Faldagium or non permisit eum faldare but non habere beneficium faldagii so that it was not certain what was meant for the Sheep might be folded and yet he might be deprived of the benefit of the foldage And the Chief Justice said here the Prescription is laid to have the Sheep going infra Communes Campos Territoria de Grancester to be folded and Territoria is a word unknown in the Law so no certainty in the Prescription Note Here a Prescription is laid in a Body Aggregate in a que Estate but that was held to be well enough because for a thing appurtenant to the Mannor Vide 2 Cro. 673. Kelw. 140. B. 1 Inst 121. a. But for the Reasons above mentioned the Iudgment was stayed by the Opinion of the whole Court George versus Butcher DEbt upon a Bond. The Defendant demands Oyer of the Condition which was to perform certain Articles of Agreement and the Defendant set forth the Articles made between the Defendant of the first part the Plaintiff of the second part and Rebecca Morse Widow Joseph Morse Samuel Morse John Morse Daniel Morse Nathaniel Morse Robert Morse and Thomas Morse Sons of the said Rebecca of the third part by which it was recited that a Marriage was intended between the Defendant Butcher and the said Rebecca by means whereof the Defendant would become possessed of her Personal Estate and in consideration thereof the Defendant covenanted by the said Articles inter al' having also recited that Robert Morse deceased Father of the said Joseph Morse Samuel Morse John Morse Daniel Morse Nathaniel Morse Robert Morse and Thomas Morse had by his Will bequeathed cuilibet ipsorum praed ' Josepho Samuel ' Johan ' Daniel ' Robert ' Tho' omitting Nathaniel the sum of 50 l with the Plaintiff that the said Defendant would pay praed ' Josepho Samuel ' Johan ' Nathaniel ' Robert ' Tho' praedict ' seperal ' legationes vel summas quinquaginta librat ' And the Defendant pleads further that he paid to the said Joseph Samuel John Daniel Robert and Thomas the said several sums of 50 l and shewed performance of all the other Articles And to this the Plaintiff demurred because that he did not shew that he paid 50 l to Nathaniel Morse and expresly covenanteth to pay to the said Nathaniel and the rest the said several Legacies or sums of 50 l Sed non allocatur for in the recital of the said Bequest by the Will there is nothing mentioned to have been bequeathed to Nathaniel and tho' he covenants to pay to Nathaniel as well as the rest yet it is legationes vel summas praed ' and there being no Legacy to Nathaniel and that appearing by the recital of the Will his Covenant shall not oblige the Defendant to pay him any thing Et sic Judicium ê“ Defendente Trethewy versus Ellesdon IN Replevin The Plaintiff declared of taking his Cattle in a place called the Barnclose in Branwell in the County of Cornwall The Defendant made Conusance as Bayliff of Elizabeth Cossen and shews that Nicholas Cossen was seised in Fee of a Messuage and Lands of which the place where was and is parcel and being so seised the 9th of September in the fourteenth year of the late King Charles the Second by his Deed indented produced in Court did grant to the said Elizabeth Cossen an annual Rent of 10 l to be issuing out of the Premisses to have to the said Elizabeth and her Assigns for term of her Life payable at the usual Feasts and in case it were arrear that it should be lawful for her to distrain by virtue whereof the said Elizabeth Cossen who is still living became seised of the Rent for her Life and avers that the usual Feasts are our Lady Midsummer Michaelmass and Christmass and for 40 l for four years Rent ending at Michaelmass 1688. the Defendant took the said Cattle as a Distress for the arreat of Rent c. The Plaintiff demanded Oyer of the Indenture which was read containing as followeth viz. This Indenture made the 29th day of September c. between Nicholas Cossen c. of the one part and Elizabeth Cossen c. and Nicholas Cossen the younger Son of the said Elizabeth of the other part of witnesseth That whereas the said Elizabeth Cossen hath given and surrendred into the hands of the said Nicholas Cossen one Indenture of Lease of an Annuity dated the 15th of March 1657. of ten pounds yearly going out of all that his Barton and Demesn called Melder for a term yet to come as in and by the said Indenture of Lease more fully and at large appeareth hath Given Granted and Confirmed and in and by these Presents doth Give Grant and Confirm unto the said Elizabeth Cossen her Heirs and Assigns by these Presents one Annuity or Yearly Rent of ten pounds to be issuing and going out of all that his Barton c. to Have Receive and take yearly the said Annuity to the said Elizabeth Cossen and Nicholas Cossen the younger and the Survivor and Survivors of them at the usual Feasts in the Year by equal Portions and if it shall happen the said Yearly Rent to be behind after any of the said Feasts that then it shall and may be lawful to and for the said Elizabeth during her Natural Life and so the said Nicholas Cossen the younger after her Death to enter into the Premisses and distrain c. In Witness whereof
c. Quibus lectis auditis idem Querens dicit quod cognitio praed ' in forma praed ' fact ' materia in eadem content ' ac factum indentat ' praed ' in forma praed ' fact ' minus sufficien ' in lege existunt c. and the Defendant joyned in Demurrer It was argued for the Plaintiff that there is no sufficient Grant by this Indenture for it is said to be made between Nicholas of the one part and Elizabeth and Nicholas Cossen junior of the other part and then recited the Surrender of a former Grant after which came the words hath Given and Granted and by these Presents doth Give and Grant c. and no Grantor names but if it should be taken for a Grant from Nicholas Cossen 't is a Grant to Elizabeth an her Heirs and the habend ' cannot alter the Premisses in the limitation of the Estate in the Grant of a Rent and the Defendants in their Plea set forth that the said Elizabeth was seised of the said Rent for her Life ut de libero Tenemento so there is a material variance between the Indenture and the Plea The Court were of Opinion as to the first matter that it was a good Grant the Indenture being between Nicholas Cossen of the one part and Elizabeth of the other part and then after a recital saith hath Given and Granted to Elizabeth c. That must be taken that Nicholas Cossen hath Given and Granted and that the Conisans setting her forth to be seised for Life whereas there passed an Estate in Fee was a material variance The Cheif Justice Pollexfen seemed to incline that it was a Rent-charge for Life for the power of Distress was given to her only for Life and a Rent-seck in Fee and that it was as a Grant of two several Rents and then the Pleading was good But the other Justices held it was one entire Rent and that she had it with a Priviledge of Distress during her Life only but leave was given to amend the Conisans upon payment of Costs Dod versus Dawson SCire Facias upon a Recognizance of Bail in this Court upon condition That if Iudgement should be had against the Principal in an Action of Debt for 2000 l in this Court that he should pay the Debt and Damages recovered or render his Body in Execution to the Prison of the Fleet and sets forth that he recovered the said Debt of 2000 l and 12 l pro damnis Termino Pschae 4 Jacobi Secundi nuper Regis and that the Defendant did not pay the said Mony nor render himself in Execution c. The Defendants plead to this Scire fac ' that the Mony praetextu cognitionis praed ' in praed ' brevi de Scire fac ' mentionat ' de Terris Catallis c. praed ' Defendentis fieri ad usum praed ' Timothei Dod levari non debet quia dicunt quod Narratio super qua Judicium praed ' in praed ' Brevi de Scire fac ' mentionat ' obtent ' fuit versus ipsum Willielmum Dawson seu aliqua alia narratio in placito debiti non fuit exhibit ' in Curia hic in Termino Paschae Anno Regni dicti nuper Regis primo quo Termino recognitio praed ' facta fuit nec ad aliquod tempus infra duos terminos post praed ' Terminum Paschae proxime sequen ' unde pro defectu Narr ' per praefatum Timotheum Dod versus praefat ' Willielmum Dawson in eadem Cur ' ante finem praed ' duorum terminorum praed ' summa duarum mille librarum per cursum legis de Terris Catallis praed ' Defend ' vel eorum alicujus fieri levari non debent hoc parat ' sunt verificare unde pet ' Judicium c. To this the Plaintiff demurs and Iudgment was given for the Plaintiff for altho' by course of the Court if the Defendant lie in Prison two whole Terms without any Declaration put in he may get a Rule to be discharged yet if a Declaration be afterwards delivered and Iudgment thereupon 't is a good Iudgment and the Bail will be liable in such case Rogers versus Bradly IN a Replevin for taking of a Cow apud Liscard in Cornwall in a certain place there called the Underway The Defendant made Conusans as Bayliff to William Trewman and Thomas Coll and sets forth that Joseph Mark diu ante c. was seised in Fee of a Close called Underway parcel of the Mannor of Liscard of which the place where was and is parcel according to the Custom of the said Mannor and being so seised the 9th day of January Anno Domini 1663. demised to Sampson Rogers the Premisses for 99 years from the Date of the Indenture if A. B. c. should so long live tendring 10 l yearly Rent by virtue whereof the said Rogers entred and the said Joseph Mark being seised of the Revertion in Fee secundum consuetudinem Manerii praed ' upon the first day of February Anno 1663. supradict ' at a Court of the said Mannor then held did surrender in Manus Domini Caroli Secundi nuper Regis Angliae c. adtunc Domini Manerii praed ' secundum consuetudinem Manerii praedict ' the aforesaid Revertion and Rent to the use of the said Trewman and Coll and their Heirs to which said T. and C. at the Court praed ' Dominus Rex per quendam Thomam Moulton adtunc Seneschal ' suum Manerii praed ' did grant the said Revertion and Rent to hold to them and their Heirs according to the Custom of the said Mannor and by virtue thereof the said T. and C. became seised of the said Revertion and Rent in their Demesn as of Fee according to the Custom of the said Mannor and for five years Rent ending at Michaelmass c. bene cognoscunt captionem c. To this the Plaintiff replied and the matter in the Replication was frivolous and Demurrer thereupon But the Court gave Iudgment for the Plaintiff because the Conusans was insufficient for the Lands whereupon the Distress was taken being Freehold for so they must be taken to be tho' it is shewn that Mark was seised according to the Mannor because it is not said at the Will of the Lord could not be conveyed by Surrender in Court and an admittance without an Especial Custom to pass them in that Form and 't is not enough to say that he surrendred them secundum consuetudinem Manerii but the Custom should have been fully set forth viz. quod infra Manerium praed ' de tempore c. talis habebatur consuetudo c. but here the Custom is by Implication 1 Cro. 185 Vaughan 253. 2 Leon. 29. Lade versus Baker and Marsh Kanc ' ss THOMAS BAKER Nicholaus Marsh sum̄ fuer ' ad respondend ' Philippo Lade Gen ' de placito quare ceper ' averia
it could not appear upon the Record but that the Verdict was against the Plaintiff upon the mistake of the Action whereas here it appears upon the Matter at large set forth in the Special Verdict that Judgment was given against the Plaintiffs upon the Merits of of the Cause And the Court were of Opinion that the Plea in Bar was good in this Case but they took the Case of Putt and Royston to be a Case of the same nature For tho' the Issue were General yet in regard of the Averments which in every such Plea there must be it appears to the Court that the Matter was the same as well as here it doth upon the Special Verdict and if it were not the same so that the Plaintiff was barred to the former by mistaking the Nature of his Action the Averment might be traversed Therefore by reason of that Case Adjudged and the Importunity of the Plaintiffs Leave was given by the Court to speak further to the Case the next Term. The Earl of Mountague versus The Lord Preston IN an Action on the Case for the Profits of the Office of Master of the King's Wardrobe the Plaintiff Declared That King Charles the Second in the 23th year of his Reign granted him a Patent to hold the said Office for Life reciting a former Grant thereof to the Earl of Sandwich and the Surrender of that Grant And that the Defendant by colour of a Patent granted to him in the First year of the late King James had entred upon the Office and taken the Profits and had deprived the Plaintiff of the whole benefit and profit of the Office Vpon Not guilty pleaded it came to a Trial at the Bar this Term and it was insisted upon for the Defendant That the Plaintiffs Patent having recited a former Grant that they must prove that Grant to have been surrendred To which it was Answered That if they took advantage of the Recital they must admit all that was recited as well the Surrender as the Grant And of that Opinion was the Court. Then the Defendant produced the Earl of Sandwich's Patent and this the Court held would put the Plaintiff to prove a Surrender And a Surrender was shewn in Evidence accordingly Note It was said in an Action of this Nature that it is not necessary to shew every particular Sum received by the Defendant But it is a good Evidence for the Damage to shew the Profit of the Office communibus annis Anonymus AFter an Extent upon a Statute and a Liberate out of this Court the Writ was Habere fac ' terr' tenementa instead of Liberari facias and it was moved to amend the word Habere in the Writ and to make it Liberari And after divers Motions the Court Ordered the Amendment to be accordingly because it is a Judicial Writ 8 Co. 157. a. 1 Cro. 709. A Writ of Enquiry was awarded to the Sheriffs of London and it was quod Inquirat instead of Inquirant and it was amended Vid. the Case of Walker and Riches 3 Cro. 162. and the Case of Keer and Guyn Hob. 90. but in that Case the Roll was wrong in a very material thing for it was not said in the Elegit the Lands and Tenements of the Defendant Anonymus AN Action of Debt was brought in this Court for a Sum of Money recovered in the Hundred Court and the Defendant was admitted to wage his Law tho' at first the Court doubted Vid. Mo. 276. for a Wager of Law to an Action of Debt brought for an Amercement in a Court Baron Note When the Defendant hath his Hand upon the Book before he is sworn the Plaintiff is to be called and he may be Non-suited The Defendant is to bring his Compurgators but they may be less than Eleven and they are sworn de credulitate Anonymus AN Action was brought for speaking of these words of the Plaintiff He broke my House like a Thief And upon Not guilty pleaded a Verdict was found for the Plaintiff And the Court held the words not to be Actionable Anonymus IN an Action for Words spoken of the Plaintiff in saying He was a Clipper and Coiner After Verdict upon Not guilty pleaded it was moved in Arrest of Judgment that the Words did not charge him with Clipping and Coining of Money and Clipping and Coining might be apply'd to many other things But the Court held the Words to be Actionable in regard of the strong Intendment and such Words are understood by those that heard them to mean Clipping and Coining of Money Anonymus AN Attorney brought an Action for that the Defendant said of him He is a Cheating Knave and not fit to be an Attorney After Verdict for the Plaintiff it was moved in Arrest of Judgment that there was no Communication of his Profession and the Words did not necessarily relate to his Practice But the Court held the Action would lye for saying That he was not fit to be an Attorney shewed plainly that Cheating Knave had reference to that Anonymus UPon a Motion for a New Trial it appeared that the Solicitor for the Plaintiff who also was an Attorney had wrote two Letters to two of the Jury before the Trial importuning them to Appear and setting forth the Hardships that his Client had suffered in the Cause and how he had Verdicts for his Title The Court set aside the Trial for this Cause and Committed the Solicitor to the Fleet for this Misdemeanor being Embracing of a Jury and before his Discharge made him pay Ten pounds to the party towards the Charges of the Trial. Pretious versus Robinson THe Cause being at Issue in Hillary Term last a Venire was awarded and a Jury Retorned upon it and in Easter Term after another Venire was awarded and a Trial was by a Jury Returned upon the two Venire's Vpon this the Court set aside the Verdict for there was no Authority for the two Venire's so all the Proceedings thereupon are void and not aided by the Statute of 16 Car. 2. Cooke versus Romney AN Action of Covenant was brought against two and it was quod teneat conventionem instead of teneant and after a Writ of Error brought it was moved that it might be amended and made teneant It was Objected That False Latin in an Original could not be amended as hos breve for hoc breve so in Waste destrictionem for destructionem Blackamore's Case 8 Co. But the Court granted the Motion and ordered the Amendment And it was said of late days it had been done in case of a word Mistaken in an Original as in Ejectment divisit for dimisit Vid. in Blackamore's Case the like 159. b. Imaginavit for imaginatus est was amended Anonymus IN Trover and Conversion for a Mare Vpon Not guilty pleaded and a Verdict for the Plaintiff it was moved in Arrest of Judgment that the Mare was said ad valentiam and it should have been pretii Sed non
the putting them to Sue severally as they must do at Law But here there is but part of them that Sue and then they appear to be Officers in the Ship that Sue and so not to have this Priviledge of the Common Seamen to Sue for it was alledged that this practice had been obtained but of late and in favour to them and here it appears that the Contract for the Wages was joynt with the Owners and they have sued but two of them and so they shall be charged with the whole But the Court denied the Prohibition for they have been ever alowed to proceed for Marriners Wages and tho' the Plaintiffs have an employment in the Ship as Purfer Boatswain or the like they are Marriners as well as others and may sue in the Admiral Court for their Wages and they having Iurisdiction shall proceed in their own way tho' different from our Law as to the joyning of all the Plaintiffs or Defendants and if the Proceeding be not according to their Law the Remedy lies there Note It was said by one of the Admiralty that tho' the Suit be against some of the Owners the course there is not to charge them with the whole but according to their proportionable parts Adams versus Cross IN a Replevin against Cross and two others for taking of divers Goods at Ware in quodam loco vocat ' a Messuage there The Defendants made Conusance as Bayliffs of Jane Cross and they say that before the Caption she was seised in her Demesn as a Fee at the Will of the Lord of the Mannor according to the Custom of the Mannor of and in the aforesaid Messuage which said Messuage is and time out of mind hath been parcel of the said Mannor and demised and demisable by Copy of Court Roll c. and being so seised 24 June 1687. she demised the said Messuage to the said Adams from thenceforth at Will reserving for so long time as the said Adams should hold it the yearly Rent of 8 l by equal Quarterly payments By virtue of which Demise the said Adams entred and was and yet is possessed and for 14 l being a Year and three Quarters Rent ending at the Feast of the Nativity of St. John Baptist last past they as Bayliffs to the said Jane distrained the said Goods being in the House c. To this Avowry the Plaintiff pleaded an insufficient and frivolous Bar and now took Exceptions to the Avowry for that the said Jane Cross is therein set forth to have been seised in Fee of the said Messuage at the Will of the Lord according to the Custom of the Mannor and sheweth no admission from the Lord whereas a Copyholder cannot plead his Estate without setting forth an Admission or Grant from the Lord 4 Co. 22. b. But the Court resolved in this Case there need not be shewn any Admittance for the Title did not come in question If one pleads a particular Estate for life or years generally the commencement of it is to be shewn but if a Lessee for years Let for a lesser Term reserving a Rent in an Action of Debt for the Rent he may set forth that at the time of the Lease he was possessed of the Land ê“ termino diversorum annorum adtunc adhuc ventur ' and being so possessed demised to the Defendant c. without shewing the beginning of his Term and how derived for 't is but an inducement to the Action And Judgment was given for the Avowant Clarke versus Tucket IN an Action of Trespass for entring of his House and taking of four Pewter Dishes of the Plaintiffs The Defendant pleaded the Letters Patents of Edward the 4th whereby the Company of Taylors in the City of Exeter were Incorporated and by the said Letters Patents they were to keep a Feast every year upon the Feast-day of St. John the Baptist in some place of the City belonging to them and there to make Orders and By-Laws c. And that the said Corporation at a Meeting held the 20th of March in the 21st year of the Reign of the late King Charles the Second did make an Ordinance or By-Law That if any person being Master or one of the Chief Wardens of the Corporation aforesaid at any of their Assemblies should reproach or revile the Master or any of his Brethren or any of the Common Council of the Corporation he should forfeit 6 s and 8 d And if any other person or persons of the said Bodies should revile or use any unhandsom Speech of the Master Wardens or any of the said Council he should forfeit 3 s and 4 d the said Fines to be levied by Distress upon a Warrant under the Corporation Seal and by sale of the Offenders Goods after Four days Notice given to the Fine so set forth and an Allowance of the By-Law by the Justices of Assize according to the Statute of Henry the 7th And further saith That the Plaintiff being a Member of the said Corporation and having Notice of the said By-Law did at an Assembly of the said Master and Wardens in the Common Hall say of the said Master and Wardens in the said Corporation these words viz. The Masters ipsos Magistrum Custod ' innuendo are all a Company of Pickpocket Rogues and divers other very scurrilous and reproachful Words were set forth to have been there spoken of the said Master and Wardens by the Plaintiff whereby the Plaintiff forfeited 3 s and 4 d by the said By-Law which was demanded of him and by him neglected to be paid by the space of six Days Whereupon the said Master made his Warrant directed to the Defendant commanding him to Levy the said 3 s and 4 d by distress and sale of the Goods of the Plaintiff And the Defendant by virtue of the said Warrant did enter into the Plaintiffs House being then open and took the Goods in the Declaration mentioned Nomine districtionis prout ei bene licuit And to this Plea the Plaintiff demurred and Judgment was given for the Plaintiff For a Corporation cannot make a By-Law to have a Forfeiture levied by the sale of Goods 8 Co. 127. nor for Forfeiture of Goods And here tho' the Defendant only Distrained neither is the Defendant charged with selling the Goods in the Declaration yet the By-Law being void as to the selling is void in toto and no Justification can be upon it It was also said at the Bar That the Distress was excessive to distrain so many Dishes for 3 s and 4 d Indeed a man cannot sever a Distress and therefore in some cases a Distress of great value as a Cart and Horses may be taken for a small matter because not severable but here he might have taken some of the Dishes But the Court did not regard that Exception because it did not appear of what value the Dishes were Again it was said That they ought to have made the By-Law upon St. John Baptists Day To
Ground tanquam ad Mesuag ' praed ' spectant ' pertinent ' de jure habere debet and that the Defendant stopped it up ad damnum c. The Defendant pleaded a frivolous Plea to which there was a Demurrer It was Objected on the Defendant's part that the Declaration was insufficient because the Plaintiff did not prescribe for the Way nor otherwise entitle himself to it than by a possession of the Messuage and that he had and ought to have a Way to the said Messuage belonging And a difference was taken between this and Dent and Oliver's Case 2 Cro. 43. where one alledged himself to be seised in Fee of a Mannor and had a Fair there and that the Defendant disturbed him to take Toll And in 2 Cro. Stackman and West there is a Prescription laid in the Dean and Chapter who had the Fee for the Way But it was Objected That a Corporation could not prescribe in a Que Estate but it was held well being but inducement to the Action And the Court here held the Declaration sufficient being but a possessory Action And a Case was said to be so Adjudged in this Court between the same parties Anno primo Jacobi secundi Vide the Case of Saint John and Moody upon the like Point Woodward al' versus Fox IN an Indebitat ' Assumpsit for 200 l for so much Money received by the Defendant for the use of the Plaintiffs The Defendant pleaded Non assumpsit and upon that a Special Verdict was found That in the Year 1681. before the Promise supposed c. John Hammond was and yet is Archdeacon of Huntington within the Diocess of Lincoln and that the Bishop of Lincoln is Patron of the Archdeaconry and that the Office of Register of the Court of Archdeaconry was time out of mind grantable by the Archdeacon for the Term of three Lives and that the said John Hammond in the said Year 1681. for 100 l sold and granted to Simon Michael and John Juce for their Lives the said Office of Register it being an Office concerning the administration of Justice and that by Colour thereof they enjoyed the Office till Juce died which was in 1687. and soon after in the same year the said Simon Michael died in the possession of the said Office and that Hammond was no ways Convicted of selling the said Office upon any prosecution at Law or otherwise And they further said That Thomas Bishop of Lincoln in the said Year 1687. after the Death of Juce and some time before the Death of Michael granted the said Office of Register to the Defendant Fox and set forth the Grant in haec verba which mentioned the said Registers Office to be void by the Statute of the 5 6 Ed. 6. against Sale of Offices and that thereupon it belonged to the said Bishop to grant the said Office by virtue of which the said Fox became seised of the said Office prout lex postulat And they find afterwards that in the same Year that Juce and Michael died Hammond being Archdeacon as aforesaid granted the said Office to the Plaintiffs Woodward Masters and Gilbert for their Lives and that they entred upon the said Office and became seised thereof ê“ut lex postulat And they find that the Bishops Grant was Afterwards Confirmed by the Dean and Chapter and they find that afterwards viz. the 22 of Octob. Anno regni Willielmi Mariae primo the said King and Queen their Letters Patents under the Great Seal reciting that the said Office appertained to Their Majesties to grant by the said Statute of Edward the 6th did grant the said Office of Register to the said Plaintiffs Woodward Masters and Gilbert for their Lives and that by virtue thereof they entred upon and exercised the said Office and received divers Fees and Profits thereunto belonging and that the Defendant having notice thereof did take divers Fees and Profits of the said Office amounting to 30 l claiming them to his own use c. and if upon the whole Matter c. Vpon this Special Verdict there were these Points moved The first Point was Whether this Office of Register could be granted for Lives This was not much insisted on by the Defendants Council it having been usually granted and so found by the Verdict 3 Cro. Young and Fowler 's Case a Grant in Reversion of the Registers Office was allowed being warranted by Usage and so in 3 Cro. Young and Stoel But unless there have been such Vsage 't is not grantable in Reversion Vide 3 Cro. Walker and Sir John Lamb. The second Point was Whether the Grant of this Office in Consideration of Money is void by the Statute of the 5th and 6th of Edward the 6th against Sale of Offices That Point was also waved it being Resolved in Dr. Trevor's Case 12 Co. 78. 2 Cro. 269. forasmuch as it concerned Administration of Justice The third Point was That the Statute of 5 Ed. 6. Enacting That the person who takes any Money for any Office shall lose and forfeit all his Right to any such Office c. Whether the King or the Bishop shall take advantage of this Forfeiture in regard the Statute doth not express who shall dispose of the Office in such case Co. Lit. 159. a. And it was said on the part of the Plaintiff That when a Statute gives a Forfeiture and not said to whom the King shall have it 11 Co. 60. a. unless there be a particular party grieved as upon the Statute of 2 Ed. 6. of Tythes and yet it was for some time before it was setled that the Parson should have the treble Value in that Case And this agrees with the Reason of the Common Law things that are nullius in bonis the King shall have them as extra Parochial Tythes 11 H. 4. 17. Vid. 5. Co. in Sir Henry Constable's Case The Soil of Navigable Rivers and derelict Lands was with this difference If the Sea leaves the Land gradatim and for but a little quantity the Owner of the Land shall have it but if in a great quantity at a time it goes to the King Davis Rep. 5. 6. Vid. Siderfin 86. Dyer 126. 'T is true at the Common Law where a person hath an Interest in that which is Forfeited he shall have the benefit of it as if a Park-keeper forfeit it shall go to the Owner of the Park And in Sir John Breon's Case Bridgm. 27. where the Earl of Lancaster gave License to make a Park in his Forest and the party forfeited his Office the Earl had the advantage of it In those cases the thing is forfeited to him from whom it was granted as a Copyholder forfeits to his Lord and Tenant for Life to him in Reversion but here the Bishop hath nothing to do with the Office of Register he cannot dispose of it in the time of Vacancy of the Archdeaconry The Verdict finds that his Office is to Register the Acts in the
c. To this the Plaintiff Demurred First This is a Grant by Richard to Nicholas and so void without Attornment or Enrollment and being intended to Enure as a Grant shall not work as a Covenant to stand seised Secondly The Defendant hath pleaded it as a Grant and what he saith after in the Avowry to set forth how the Deed should work is vain and idle As to the first Point the Court held this Deed having no Execution to make it work as a Grant it shall operate as a Covenant to stand seised Mod. Rep. 178. Sanders and Savins Case A Grant of a Rent to his Kinsman for Life there being no atturnment it raised an use by way of Covenant but the pleading the Court held impertinent for instead of pleading of this Grant according to the effect of it in Law viz As a Covenant to stand seised He sets forth the matter in Law and haw it ought to be construed and because they would not countenance such vain and improper pleading the Case was adjourned Biddulph versus Dashwood IN an Action of Debt for 90 l The Plaintiff declared quod cum recuperasset coram Justiciariis de Banco apud Westm ' 90 l ê“ dam ' against the Defendant prout ê‘ Record process ' quae Dom ' Rex Regina coram eis causa Erroris in eisd ' corrigend ' Venire fac ' quae in Cur ' dicti Domini Regis Dom ' Reginae in pleno robore vigore remanent minime revocat ' plen ' apparet per quod actio accrevit c. To this the Defendant Demurred supposing that the Iudgment was suspended so far that an Action of Debt could not be brought upon it pending the Writ of Error But the Court held if the Defendant could insist upon this he ought not to have Demurred but to have pleaded Specially and demanded Iudgment if the Plaintiff should be answered pending the Writ of Error So Iudgment was given for the Plaintiff Termino Sancti Hillarij Anno 2 3 W. M. In Communi Banco Anonymus TRespass quare clausum fregit diversas petias Maheremij cepit c. Iudgment by default upon the Writ of Enquiry returned The Iudgment was stayed for the incertainty of the Declaration James Tregonwell Vid. Executrix of John Tregonwell against Sherwin IN an Action of Debt for Rent the Plaintiff declared in this manner That Frances Fen and John Tregonwell the 23 of Jan. 24. Car. 2. did Demise to the Defendant certain Lands for 21 years reserving 20 l per Annum to the said Frances during her Life and after her Decease to the said Tregonwell his Executors and Administrators and set forth Frances to be Dead and that the said Tregonwell being possessed of the Reversion of the Premisses pro Termino Annor ' adtunc adhuc ventur ' the 4 of May 30 Car. 2. made his Will and thereof made the Plaintiff his Executrix and died and that she took the Executrixship upon her and by vertue thereof became possessed of the said Reversion and for 30 l for a year and halfs Rent accruing after she brought the Action The Defendant pleaded an insufficient Plea and the Plaintiff Demurred And Iudgment was given against the Plaintiff upon the insufficiency of the Declaration for there is no good Title set forth to the Plaintiff for the Rent for t is not said that Tregonwell was at the time of the Lease possessed of the Lands pro Termino Annorum c. but that at the time of making his Will and that might be upon the creating of such Estate since and the Rent might not belong to the Reversion And tho' it was said his reserving the Rent to his Executors carried an intendment that he had a Term for years only yet that was held not to be sufficient and Iudgment was given for the Defendant Sir Lionel Walden versus Mitchell Hunt ' ss JOHANNES MITCHELL nuper de Huntington in Com' praed ' Maulster Attach ' fuit ad respondend ' Action for Words viz. Papist and Pensioner spoken of one who had been a Member of Parliament â—n the time of King Charles the Second Lionello Walden Mil ' de placito Transgr ' super Casum Et unde idem Lionellus per Robertum Clarke Attorn ' suum queritur quare cum praed ' Lionellus bonus verus pius fidelis honestus subditus ligeus domini Regis dominae Reginae nunc existit ac ut bonus verus pius fidelis honestus subditus ligeus eorundem domini Regis dominae Reginae nunc ê“genitorum suorum à tempore Nativitat ' suae hucusque se habuit gessit gubernavit bonorumque nominis famae conversaconis gesture tam in t ' quamplurimos venerabiles fideles subdit ' dictorum domini Regis dominae Reginae nunc ê“genitorum suorum quam omnes vicinos suos per tot ' tempus praed ' habit ' not ' reputat ' fuerat per tot ' tempus praed ' The Plaintiff a Protestant fuit adhuc existit verus professor Religionis Protestan ' Reformat ' per leges hujus regni Angliae stabilit ' ill ' sincere proficiend ' exercen ' Divina Servitia in Ecclesia in paroch ' sua seu aliqua Ecclesia capello aut alio usuali loco Communis precacon ' secundum usum Ecclesaie Anglicanae lect ' semper frequentans audiens Ecclesiae Romanae nunquam reconciliat ' And never a Professor of the Romish Religion fuit neque Religionem Romanam unquam profeffus fuit neque ad Missam unquam ivit Cumque praed ' Lionellus fuit extit un ' Burgens ' That he hath been a Member of Parliament sive Membr ' Parliamenti pro Villa de Huntingdon ' in Com' Hunt ' in Parliamento domini Caroli secundi nuper Regis Angi ' inchoat ' tent ' apud Westm ' in Com' Midd ' octavo die Maijanno regni sui decimo tertio ut hujusmodi Burgens ' sive Membr ' Parliamenti per tot ' idem Parliament ' usque dissolucon ' inde juste fidelit ' And did his Duty therein justly deservivit debitum fiduciae officij sui Burgens ' Membr ' ejusdem Parliamenti per tot ' idem tempus performavit Idemque Lionellus pro performacone fiduciae officij sui praedict ' Burgens ' sive Membr ' Parliamenti praedict ' alijs Causis diversa itenera ad Civitat ' London ' Westm ' à Villa Hunt ' praedict ' fecit performavit praed ' tamen Johan ' praemissorum non ignarus set machinans malitiose intendens eundem Lionellum non solum in bonis nomine fama credenc ' reputacone ' suis praedict ' multiplicit ' laedere detrahere penitus distruere verum etiam ipsum Lionellum infra poenas poenalitat ' contra Papistas subdit '
that King James came to the Crown and the time is supposed to have influenced the Opinion of the Court and the Plaintiff had Iudgment After having heard the Case several times spoken to the Court gave Iudgment for the Plaintiff principally for the words that he went to Mass for by the Statute of 23 Eliz. cap. 4. the Offender is to Forfeit 100 l and he imprisoned for a year so that they expose him to Corporal Punishment It is held that to say a Man committed petit Larceny is Actionable Allens Rep. 11. The Chief Justice here said That where a Man had been in an Office of Trust to say that he behaved himself corruptly in it as it imported great Scandal so it might prevent his coming in to that or the like Office again and therefore was Actionable Note The time these words were spoken was taken notice of viz. between King James the Second's Desertion of the Kingdom and the Proclaiming of the King and Queen when to call a Man Papist would have exposed to him the danger of the Rabble whereupon Judicium pro Quer. Lade versus Parker VIde ante Termino Michal ' ult It was this Term moved again That the pleading dedit concess ' Nicholao Marsh filio suo Annuitatem praed ' habend ' praed ' Nicholao heredibus assignat ' suis ad opus usum dicti Nicholai haered ' assign ' suor ' per quod vigore Statuti de usibus in possession ' transferen ' the said Nicholas became seised c. was sufficient and the words quae quidem concessio c. quod vide ante were to be rejected as Surplusage And of that Opinion were Powell Rokeby and Ventris But Pollexfen Chief Justice held strongly to the contrary and he agreed this Deed being to the Son with an express Consideration of natural affection tho' Money was also part of the Consideration mentioned that it would work as a Covenant to stand seised But then the Parties ought to have pleaded it as a Covenant to stand seised according to the legal construction of such a Deed where there is no Execution at Law whereas here they have pleaded it as a Grant at the Common-Law The other Judges differing in their Opinion said it was sufficient to plead the Deed as it was worded and if there were sufficient matter to intitle the Avowant Iudgment ought to be given accordingly and then the Avowant concludes that he became seised by the Statute of Vses which shews he intended to take the operation of the Deed that way so Iudgment was given for the Avowant Chief Justice contra Note Serjeant Levins cited the Pleading in Foxes Case 8 Co. where the words Demise and Grant in consideration of Money amounted to a Bargain and Sale it being of an Estate for years without enrolment it was pleaded dimisit concessit ad firmam tradidit non Barganizavit Woodward c. versus Fox IN an Action sur Assumpsit for 200 l received to his use Vpon non Assumpsit a Special Verdict was found quod vide ante Term ' Trin ' ult ' and the Case this Term came to have the resolution of the Court The case upon the Special Verdict is to this effect an Arch-deacon maketh a Register of the Court belonging to his Arch-deaconry in Consideration of 100 l The Bishop of the Diocess who was also Patron to the Archdeacon supposing the Office to have been void by the Statute of 5 and 6 Edw. 6. against the Sale of Offices relating to the Administration of Iustice granted the said Office of Register to the Defendant and the said Grant was confirmed by the Dean and Chapter The Archdeacon after the Death of that person to whom he had sold the Office ut supra Grants the said Office to the three Plaintiffs for their Lives and the Life of the longer liver of them the Plaintiffs before any Office found for the King or any Record shewing the Sale of this Office obtains a Grant of it from the now King and Queen The Court were all of Opinion for the Plaintiffs The Court did not speak to two Points stirred in the case viz Whether this Office could be granted for three Lives or whether it was within the said Statute of 5 and 6 Edw. 6. because they were in a manner agreed at the Bar and the Points setled But the two main Points in the Case which were spoken to are First Where an Archdeacon sells the Office of Register in the Court of the Archdeaconry whether by the Statute of 5 and 6 Edw. 6. the Grant and Nomination to this Office shall come to he Crown or whether it shall go to the Bishop of the Diocess Secondly Admitting the Right to be in the Crown whether the King and Queen can make a Register till Office found or that the Title appeareth by some matter of Record 1. It was resolved that the Right of appointing the Register it being Forfeited by the said Statute of 5 and 6 Edw. 6. did come to the King and Queen It is a Rule laid down by Manwood Chief B. Mo. 238. That where a Statute giveth a Forfeiture either for Nonfesans or Mis-fesans the King shall have it so in 11 Co. 68. This follows the Reason of the Common-Law in case of things which are nullius in bonis where no visible Right appears the Law giveth them to the King Siderfin 148 86. As Derelict Land Treasure Trove and a great number of such like instances may be cited from the Books so it is in Extraparochial Tithes tho' things of an Ecclesiastical nature 2 Inst 646. Cawdry's Case 5 Co. 18. Nay if the Right lie equal between the King and Subject the Kings Title hath the preference by Law Detur digniori is a Rule 9 Co. 24. In case of concurrence of Titles between the King and Subject It was objected That this held in valuable things and matters of profit to the Crown But the Court said there was no such distinction made in the Books and many Prerogatives c. were given to the King for the publick good and interest of the Government as well as for encrease of the King's Treasure There is no exception out of this construction of Forfeitures upon Penal Statutes unless they are in recompence for the Damage suffered by a Subject as the Statute of 2 Ed. 6. that giveth the Forfeiture of the treble value for not setting out of Tithes 2 Inst 650. And this follows the Reason of the Common Law that Fines and Penalties for Offences at Law go to the King as the Head of the Government and that was the second Reason the Court went upon that the Offence for which this Forfeiture is inflicted is principally against the King By the preamble of the Statute it appears to be made for avoiding of corruption in Offices and abuses in the Administration of Justice Now the King is the Fountain of Justice and that Ecclesiastical as well as Civil in
his Bill to have the Land Conveyed according to the Agreement above But for the Defendants it was much insisted upon that this being to settle the Lands in case Thomas should dye without Issue it should not be regarded in this Court for the Execution of a Trust of a Remainder or Reversion in Fee upon an Estate Tail shall not be compelled because it is subject to be destroyed by the Tenant in Tail as here Thomas might have done in case he had made a Settlement according to the import of that Writing who therefore could not have been compelled himself to have executed this Agreement But the Lord Chancellor Fynch Decreed the Land for the Plaintiff because it was proved that the Marriage with the Plaintiffs Wife was in expectation of the performance of this Agreement and he was obliged to have left the Land to the Plaintiff if he had had no Issue Termino Sanctae Trinitatis Anno 34 Car. II. In Cancellaria Collet versus Collet WIlliam Fox having three Daughters Mary Elizabeth and Martha the two latter being Married and the first a Widow by his Will devised in these Words Viz. I give unto Martha my Daughter the Sum of 400 l to be paid unto her by my Executors within one year next after my decease But I will and my desire is that Cornelius Collet the Husband of Martha upon the payment of the said 400 l shall give such Security as my Executors shall approve of that the said 400 l shall be laid out within 18 Months next after my decease and purchase an Estate of that value to be setled and assured upon her the said Martha and the Heirs of her Body lawfully begotten And in the Close of his Will were these words following Viz. I Will That after my Debts which I shall owe at the time of my Decease and my Funeral Expences and the Probat of this my Will be discharged then I do give all the rest of my Personal Estate Unbequeathed to purchase an Estate near of as good value as the same Personal Estate shall amount unto within one year next after my my decease Which said Estate so to be purchased I Will shall be setled and assured unto and upon my said three Daughters Mary Elizabeth and Martha and the Heirs of their respective Bodies lawfully begotten for ever or otherwise my said Daughter Mary and the Husbands of my said two other Daughters Elizabeth and Martha shall for such Moneys as they shall receive of my said Executors for the Overplus of my Personal Estate enter into one or more Bonds in the double Sum of Money as each part shall amount unto the same being to be divided into three parts unto my said Executors within 18 Months next after my decease to settle and assure such part or Sum of Money as each of them shall receive and have by this my Will for the Overplus of my Personal Estate unto and upon the Child and Children of my said Daughters Mary Elizabeth and Martha part and part alike Martha the Wife of Cornelius Collet died within six Months after the Testator leaving Issue only a Daughter who died within four Months after the Mother the other two Sisters surviving Cornelius Collet took out Letters of Administration both to Martha his Wife and likewise to his Daughter the Four hundred Pounds and likewise the Overplus of the Personal Estate being unpaid or disposed of Cornelius Collet preferred his Bill against the Executors and the surviving Sisters and thereby demanded the 400 l and likewise a third part of the Overplus which amounted unto 700 l And the Cause came to be heard before the Lord Chancellor upon Bill and Answer who Decreed the 400 l to the Plaintiff but as to the Surplus of the Estate the Bill was dismissed altho ' it was much insisted upon for the Plaintiff that he might have given Bond to secure the Surplus for his Child and so from the Child it would have come to him as Administrator But seeing that no Interest could vest in the Child till the Election were determined it not being material as to this Point whether the Executors or the Husband aâ— the Election the Father could not claim it as Administrator to the Child And then if the Money had been laid out in Land and the Settlement according to the direction of the Will the Husband would have had no benefit for there would have been a Ioynt Estate for Life in the Daughters with several Inheritances and no severance of the Ioynture by the Marriage and having Issue Co. Inst and so no Tenant by the Courtesie Therefore as to the Surplusage the Bill was Decreed to be dismissed Note As to the 400 l the Order of my Lord Chancellor was That Interest should be paid for it from the time of bringing the Bill Termino Sancti Michaelis Anno 34 Car. II. In Cancellaria West versus The Lord Delaware WEST Heir apparent of the Lord Delaware Exhibited his Bill against the said Lord setting forth That upon a Marriage agreed to be had between him and the Daughter of one Mr. Huddleston with whom he was to have 10000 l Portion The Lord his Father Articled to settle Lands of such yearly value for the Wives Ioynture for their maintenance and the Heirs of their Bodies c. That the Wife being now dead and without Issue and no Settlement made the Bill prayed an Execution of the Articles and a discovery of what Incumbrances there were upon the Lands to be setled To this the Lord Delaware Answered That he never intended to settle Lands but for the Wives Ioynture only and that the Plaintiff her Husband was not named in the Articles and so was Advised He need make no Settlement and upon that Reason the Plaintiff could not require him to discover Incumbrances An Exception being taken to the Answer for that it did not discover any thing touching Incumbrances it was Argued before my Lord and for the Defendant it was alledged That by the Course of the Court the time of the Discovery should be when the other Point was determined for if that be for the Defendant then no Discovery can be required but if otherwise that then the Defendant shall be put to answer Interrogatories as is usual in Cases of like nature And it cannot be Objected That the Estate may be charged with Incumbrances since the Bill because they will be of no avail On the other side it was said That this would create great delay for upon the discovery of Incumbrances other parties must be made to the Bill and therefore this Case differed from the Case of Account which concerns the Defendant himself only but the Question now is only for the making proper Parties The Court Ordered That a further Answer should be made Nota If a man deviseth that such a Sum of Money shall be paid out of the Profits of his Lands and the Profits will not amount to the Sum in such case the Land