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life_n heir_n remainder_n tail_n 4,947 5 10.4941 5 false
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A26658 Select cases in B.R. 22, 23, & 24 Car. I Regis reported by John Aleyn ... ; with tables of the names of the cases and of the matters therein contained, also of the names of the learned councel who argued the same. England and Wales. Court of King's Bench.; Aleyn, John. 1681 (1681) Wing A920; ESTC R19235 80,917 114

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brought in the Exchequer but I think it was for delay only Term Mich. 24 Car. Banco Regis Udal versus Udal IN a Trover and Conversion of 400 Load of Timber Vpon not guilty pleaded the Iury found by special Verdict that Sir William Udal being seized in fée of the Mannor of Horton whereof the Land where the Timber grew was parcel did Covenant by Indenture to levy a Fine to the use of himself in Tail the Remainder to such persons and for such Estates as he should limit by Indenture and for want of such limitation the remainder to the Defendant for life the remainder to his eldest Son in Tail and to his tenth Son and for want of such Issue the remainder to W. U. for life the remainder to his eldest Son in Tail c. and so to his tenth Son the remainder to the right heirs of Sir William with a Proviso that upon tender of 5 s. c. he might revoke those uses and limit others and levyed a fine accordingly And after by another Indenture reciting the uses of the first and the Proviso in it made a new limitation to the use of himself in tail the remainder to the Defendant for life with like remainder ut supra to his Sons the remainder to W. U. for life with like remainders to his Sons the remainder to the Plaintiff in Tail c. according to his power and the clause in the said Indentures and dyed without Issue and the Defendant neither himself nor W. U. having any Son cut down the Timber and years after sold part of it and the Plaintiff seised the rest which the Defendant did take again from the Plaintiff and sold the same and if c. And the case being argued Trin. Pasch ult and this Term it was resolved by Bacon and Roll. 1. That if there be tenant for life the remainder for life and tenant for life cut down Timber trées he that hath the Inheritance may seise them although he cannot have an Action of waste during the life of him in remainder For 1. The particular tenant hath not the absolute property in the Trées but only a special Interest in them so long as they continue annexed to the Land And therefore a Termer cannot grant away his term excepting the trées but the exception is void for that he cannot have a distinct interest in them but only relative to the land And so it is resolved in Sanders Case Lib. 5. 12. f. and so Mainard said it was resolved 10 Car. in Whites case in the Court of Wards in case of lesseé for life but where a Lease for years was made without Impeachment of waste such an exception was adjudged good as he said in Sir Alan Piercy's Case and so Bacon said it was adjudged 9 Car. in Dame Billinglys Case Then the remainder for life betters not the interest of the tenant for life in the Trées but only is an impediment for the time to the bringing of an Action of waste and therefore after the death of him in remainder for life an Action will lye for waste done in his life time And so it is adjudged in Pagets Case Lib. 5. 76. g. and so Mainard said it was adjudged Mich. 14 E. 2. in a Case not Printed that where he in reversion upon an estate for life granted his reversion for life and the tenant for life made waste and then the grantée of the reversion dyed that an Action of waste would lye against the tenant for life which proves that the cutting down of the Trées by the Tenant was tortious 2. It was resolved that the mean remainders in contingency though of an estate inheritance alter not the case for an estate in contingency is no estate till the contingency happen And therefore it was agréed that the Plaintiff might have had an Action of waste in this Case had there not béen a remainder for life in esse notwithstanding the mean contingent remainders 3. It was resolved that a Trover and Conversion in this Case would lye for all the Timber trées though the Plaintiff never seized parcel of them for by the cutting down of them an absolute property was vested in the Plaintiff unless they had béen cut down for reparations and so imployed in convenient time And for this Bury and Heards Case was cited by the Court which commenced in this Court 20 Jac. and depended seven years where a stranger entred into Lands leased for life and cut down Timber trées and barked them and the lessor before seisure brought a Trover for the bark and had Iudgment to recover notwithstanding that the cutting down and barking was all at one time whereupon it was then objected that the distinct property of a chattle was never settled in the lessor and the book of 13 H. 7. 9. g. cited that Trespass vi armis doth not lye against lessée for years who cuts down Timber trées and sells them Per Curiam Which Case was then affirmed for good Law but there it was agréed That if lessée for years cuts down Timber trees and lets them lye and after carries them away so that the taking and carrying away be not as one continued act but that there be some time for the distinct property of a divided chattle to settle in the lessor that an Action of Trespass vi armis would lye in such case against the lessee And that in such case felony might be committed of them but not where they were taken and carried away at the same time Vide 3 In. 109. a. c. 4. 63. f. And it was resolved in that Case of Bury and Heard that although the lessee had a special Interest in the trees as for necessary reparations c. yet the Action would lye for the lessor for the Interest of the lessee was determined by the cutting down unless he had cause for necessary reparations which had there been yet might the lessor have his Action but if the lessee in such case had brought his Action and recovered this would have been a good bar against the lessor but in the principal case there was years distance between the cutting down and the sale And also the Defendant by the sale made himself an absolute wrong doer for though there had been cause for reparation yet the Trees being cut down and sold though other Trees had been bought with the money and imployed in reparations this would not have excused him in an Action of Waste And an exception was taken by Latch to the execution of the power of Sir William upon the limitation of the uses by the last Indenture for that it was made with relation to the Proviso And five shillings were not tendered which was the Condition of the power thereby reserved and then Sir William being tenant in Tail the reversion to himself in fee by the first Indenture and dying without Issue the Defendant being his heir was seised in fee but the exception was clearly disallowed both for
party might deliver the Lease by virtue of the authority given him ore tenus notwithstanding the Letter of Attorney but then he must swear he did it by virtue of that for if he did it by virtue of the Letter of Attorney the other authority will not avail the delivery and it was said that he could not deliver it by virtue of both authorities quod quare Pasc 24 Car. Banco Regis Lawrence versus Kete and others IN an Ejectione firmae Ejectione firmae upon Issue whether it were a Devise by Will in writing or not between Mrs. Dunsh Widow and Edmund Dunsh the Heir The Case upon the Evidence was That Dunsh the Husband being sick said that he devised all his Lands to his Wife for life and limited several remainders of several parcels of them and about an hour after wished and desired that one Kete were there to write his Will whereupon the Wife without acquainting her Husband with it sent for Kete who from the mouth of the Witnesses which heard the Devise wrote the same but because they differed in their Testimony touching the limitation of the remainders he wrote two Wills and this was without privity of the Husband who before the writing finished became senseless and soon after died And the original Writings were both lost but a Copy testified to be of the same effect was produced and after much Dispute it was agreed by the Court and so given in charge to the Iury. 1. That an actual Devise by word is no sufficient ground for a stranger to write the Will but there ought to be an Actual Will and desire that it should be written and a bare wishing is not sufficient but there ought to be an actual willing 2. That this desire ought to be in some short space after the Devise so that it be as one continued act for if the Devise be at one time and at another time the Devisor sends for one to write his Will a new Declaration will be necessary to make it effectual 3. That an actual desire of the Husband that Kete were there to write his Will was a sufficient ground for the Wife to send for him though the Devisor gave no express directions to doe it 4. That the writing of the Will from the mouth of Witnesses was sufficient and it need not be from the mouth of the Testator 5. If Witnesses agree as to the Devise for life the Will stands good for that though they disagree as to the limitation of the remainders 6. Though the Devisor becomes senseless before the Will be written yet if it be written before he dies it is a good Will in writing 7. If a Will continue in writing at the time of the death of the Testator though it be lost or burnt afterwards it stands good but if it be burnt at the time of his death then the Devise is void And the next day the Iury gave a Verdict against the Will because the Evidence was not clear as to the desire of the Devisor to send for Kete but there was a motion for a new Trial upon pretence of partiality in some of the Iurors sed non praevaluit Hill versus Armstrong Hil. 23 Car. Rot. 931. IN an Action of Debt Debt upon a Bond with Condition to pay 300 li. to the Plaintiff and to adde 3 li. to every Hundred if it were demanded The Defendant pleaded payment of the 300 li. and that he added 3 li. to every Hundred secundam formam conditionis praedict ' The Plaintiff traversed the addition of 3 li. to every Hundred secundum formam conditionis praedict ' And after a Verdict for the Plaintiff it was moved in arrest of Iudgment that the Plaintiff ought to have alledged a Demand And for this cause Iudgment was given against the Plaintiff for this being matter of substance without which the Plaintiff had no cause of Action was not helped by the Issue nor Verdict notwithstanding the words secundum formam conditionis which was pretended to imply a Demand Hill Uxor ' versus Bird alios LEtters of Administration of the Goods of Sir John Lamb Intestate were committed by the Prerogative Court to the Wife of Hill being near to the Intestate and upon a suggestion of a Suit there by others of equal degree for a distribution of the Goods of the Intestate according to agreement made by the Administration as was pretended Hale prayed a Prohibition and it was granted for the Statute wills that Administrator be granted to the next of kin for their advantage and when the Ordinary c. hath once executed his power according to the Statute he cannot alter it nor hath any power to compell the Administrator to make distribution notwithstanding the Agreement And Hale said that the Court there threatned to repeal the Letters granted unless she would bring in a true Inventory of the Estate of the Intestate and give a true account of her Administration to which Roll answered that the Court there may cite her to bring in an Inventory and to give an account but if it appear that they goe about to repeal the Letters for not doing of it you shall have a Prohibition which was not denied by Bacon And Hale would have had a Prohibition against all the Cosins as well those that sued there as others because the proceedings there being ore tenus the rest may joyn in the Suit when they will but the Court denied to grant any Prohibition quia timet c. Pasc 24 Car. Creswell Uxor versus Ventres Uxor Hil. 23 Car. Rot. 969. SLander Slander Thou didst and dost buy and didst receive stollen Goods witness a Featherbed-Tike thou hast in thy House and the Cloath thy mans Clothes are made of And I will prove it And thou didst know that they were stollen And after a Verdict for the Plaintiff upon the motion of Wilde That the words do not charge the Plaintiff with Felonious receiving And though she knew that they were stollen this doth not argue that she was consenting to the stealing for she might come by them honestly and rightfully as if they were sold afterward in Market overt Iudgment was stayd And Roll said he had known Iudgment arrested for the like reason Spatchurst versus Sir Mat. Minns Hil. 23 Car. Rot. 1407. IN Debt Debt by an Administrator for Rent reserved upon Assignment of a terme of years in a House in St. Martins in Campis by Déed made by the Intestate The Plaintiff alledges that the Defendant had enjoyed the House pro durante toto praedicto Termino and for 90 li. due at 1643. Termino adtunc nondum finito the Action is brought And after a Verdict for the Plaintiff it was moved by Boreman That this reservation is not properly of a Rent but of a Sum in gross and for a Sum in gross no Action lieth till the last day of payment now it doth not appear that the last day
of payment is past For though it be alledged that the Defendant hath enjoyed the House during the whole terme this may be not till after the Sute commenced 2. That this being a Sum in gross and no Rent 7 H. 6. 26. a. 34. f 4 H. 6. 26. h. 3 H. 4. cas prim 20 E. 4. 2. a. 34 H. 6. 2. a. séeing parcel only is demanded the Plaintiff ought to acknowledge the receipt of the residue as upon an Obligation And the Case being twice moved the Court did both times agrée it to be a Sum in gross and no Rent properly and that the Reservation ought to be by Déed 2. That it being a Sum in gross no Action would lye till the last day of payment incurred but yet upon the first motion a Rule was given that the Plaintiff should have his Iudgment supposing that it appeared in the Record that the whole terme was expired For then they did agrée that an Action would lye for the Rent due at one day but after upon those two Objections the Iudgment was stayed Nota This Contract is in the Realty and the Debt ariseth in respect of the Profits and therefore it séems an Action will lye before the last day and so is it ruled in 45 E. 3. 8. b. and admitted 14 H. 7. 2. h. And so Hale told me was his Opinion Leech versus Davys Trin. 23. 1870. IN Debt Debt upon a Bond of 100 li. Condition that the Defendant should appear in this Court to answer in a Plea of Trespass commenced by the Plaintiff and to satisfie the Damages he should recover The Defendant pleaded the Statute of 23 H. 6. and that he was attached and in custody and that the Bond was made for his Enlargement and so not his Déed Whereupon the Plaintiff demurred specially upon the conclusion of the Plea which ought to be Iudgment si action ' c. And therefore the Plea naught and so agréed Also it was agréed that the Statute doth not extend to a Bond made to the Plaintiff himself and so Latch said it was adjudged 30 El. betwéen Raven and Stockden Bernard versus Bonner IN an Ejectione Firmae Eject Firmae of Lands and 200 Acres of Wood in Stanmore in Com' Middlesex upon a Lease alledged to be made by the Earl of Rutland and Geo. Sutton Domin ' Lexington and others upon Not Guilty it was moved by Mainard upon the Evidence in a Trial at the Bar That Sutton was no Péer of the Realm of England but only an Irish Baron and so not the same Demise and the Case in Dy. 300. a. was cited But it was answered and resolved by the Court That forasmuch as the Issue here is not whether G. Sutton Dom ' Lexington did demise as it was in Dyer where his Title is made parcel of the Issue and therefore a failure but here it is non cul So that it is sufficient that it be the same person that did demise though misnamed And so it hath béen resolved in the Case of a Demise alledged by Sir Ralph Euer Dom ' Euer who was no Baron And in another Case of a Demise alledged to be made per J. S. Dom ' Sinclere who was an Irish Baron upon Not Guilty pleaded c. And the Evidence procéeding the Case was That Sir Thomas Lake being seized in Fée of the Premisses levyed a Fine to the use of Sir Nich. Fortescue for 41 years if Sir T. L. lived so long the remainder to his Wife for life the remainder to Sir Nich. for the life of T. L. with other remainder over Sir Nich. granted the Land totum statum suum to one Page and Ducke c. habendum for 60 years And after Sir Nich. demiseth the same Lands to the said Page and Ducke c. by Indenture for 60 years if Sir Tho. Lake junior or his Wife live so long Page and Duck by Ind●nture reciting this last Demise assign and grant the said Terme ha bendum the Land totum statum suum during the residue of the said Terme of 60 years to Sir Tho. Lake And the Opinion of the Court was That by the Grant of Sir Nich. his whole Estate his remainder passed and the habendum repugnant because no other ceremony was requisite he himself being Tenant for years Then it was moved that there ought to be an Entry by him but that was agréed not requisite for the Statute executes the Estate actually and such a Lessee may attorn before Entry and the Case was the stronger because his terme was not sufficient to satisfie the Grant for 60 years Then it was doubted what effect the Assignment of Page and Ducke had because the terme recited was a Lease by Estoppel for the Lessor only for the Lessor then had nothing in the Land And it was agréed in this Case that if Lessée for Life accept of a Lease for years this is a Surrender of his Estate for Life Hodson versus Sir Anth. Ingram Hil. 23 Car. Rot. 968. IN an Action of Debt Debt upon a Bond with condition to perform Articles of an Indenture which recited that where certain persons were obliged to the Earl of Holland in eight Obligations which the Earl had assigned to the Defendant to his own use now it is agréed that the Defendant should assign the Obligations to the Plaintiff to the Plaintiffs own use And the Defendant Covenants that the moneys should be paid at the several days limited by the Bonds or within eight days after And the breach was assigned that the sum of 50 li. payable by one of the Bonds was not payd the Plaintiff upon the first of March which was the day limited by the Bond and Issue thereupon was found for the Plaintiff and Hale moved in arrest of Iudgment that the Replication was insufficient for it might be paid within the eight days after also that the Condition was for Maintenance and so the Bond void and Iudgment was stayed Faldo Pindar Hil. 23 Car. Rot. 594. IN a Replevin Replevin the Defendant avowed for Rent-charge granted by Fine sur concessit for the life of J. S. to the use of Tho. Faldo and his Assigns for the life of the said J. S. And the limitation of the use being traversed and Issue thereupon joyned upon a Trial at the Bar the evidence was that it was to the use of him his Heirs and Assigns for the life of J. S. And the Court directed that it should be found specially for because the Fréehold is intire it may be a question whether it was the same Fréehold Chappel versus Goodhouse Hil. 23 Car. Rot. 1727. SLander Slander You are a Buggering Rogue go home and bugger another Mare And after a Verdict for the Plaintiff it was moved in arrest of Iudgment that the words would not bear an Action because the Plaintiff is not charged with any act done But the Opinion of the Court was that the words would bear an