not Repair but if you will discharge your self you must do it by prescription or ratione tenurae and say that such an one ratione tenurae or such part of the Parish hath always used time out of mind c. Anonymus AN Action of Debt upon a Bond the Condition Whereas one Bardue did give by his Will so much if he should pay it such a day c. The Defendant pleads bene verum est he did give him so much by his Will and Testament but he revoked that and made another last Will. The Court said he was estopped to plead so Hales It doth not appear when the Bond was made and it shall be intended to be made after the parties death Iudgment pro Querente Deereing versus Farrington AN Action of Covenant declaring upon a Deed by which the Defendant assignavit transposuit all the money that should be allowed by any Order of a Forreign State to come to him in lieu of his share in a Ship Tompson moved that an Action of Covenant would not lye for it was neither an express nor implied Covenant 1 Leon. 179. Hales You should rather have applyed your self to this viz. whether it would not be a good Covenant against the party as If a man doth demise that is an implied Covenant but if there be a particular express Covenant that he shall quietly enjoy against all claiming under him that restrains the general implyed Covenant But it is a good Covenant against the party himself If I will make a Lease for years reserving Rent to a Stranger an Action of Covenant will lye by the party for to pay the Rent to the Stranger Then it was said it was an Assignment for maintenance Hales That ought to have been averred Then it was further said that an Assignment transferring when it cannot transfer signifies nothing Hales But it is a Covenant and then it is all one as if he had covenanted that he should have all the money that he should recover for his loss in such a Ship Twisd seemed to doubt But Iudgment Lord Mordant versus Earl of Peterborough TRial at Bar the question was Whether the Earl of Peterborough was Tenant for life only of the Mannor of Mayden The Defendant did not appear the Plaintiff thereupon desired to examine his Witnesses that so he might preserve their Evidence Twisd When they do not appear what good will that do you for they will say you set up a man of straw and pull him down again There was a former Deed of entail with a power of revocation in it and after the Deed exhibited was made whereby the Estate was otherwise settled and there was a Ioynture to the present Lady and done by persons of great Learning in the Law The Revocation was to be by Deed under my Lords Hand and Seal in the presence of thrée Witnesses Now the question was whether this second Deed was a revocation in Law and an Execution of that power And the Court told the Counsel they should find it specially if they would but they refused Hales In 16 Car. Snape and Sturts case If there be a power of revocation and a Lease for years is made it doth suspend quoad the term but after it is good Then it hath been questioned formerly if there be such a power and the person makes a Lease and Release whether it was a Revocation But shall we conceive the learned Counsel in this case would have ventured upon an implicit revocation and not have made an express revocation So that you must be non-suit or find it specially But the issue being If he wee only Tenant for life he said he must go back to the Chancery to amend it for by the Deéd produced he hath an Estate for life and the Reversion in Fee Burgis versus Burgis In Chancery A Man having a long Lease settled it in Trust upon himself for life the Remainder to his Wife for life the Remainder to the first Son of their two bodies the Remainder to the second Son and so to the tenth Son And if they should have no Son or Sons then the Remainder to such Daughter and Daughters of their bodies c. The man and his wife died and left only a Daughter who preferred her Bill against the Trustees for the executing of this Remainder to her The question is whether this Remainder be a good Remainder or whether it be void And the Lord Keeper Finch held it was a void Remainder because it doth depend upon so many and such remote Contingencies for otherwise it would be a perpetuity And he said he would allow one Contingency to be good viz. that to the first Son though the first Son was not in esse at the time of his decease And he said he did deny my Lord Cokes Opinion in Leon. Lovells case which saith that in case of a Lease settled to one and the heirs males of his body when he dies the Estate is determined for he said it shall go to his Executors And he said there was the same case with this in this Court Backhurst versus Bellingham And he said that the Common Law did complain that this Court did encroach upon them whereas they are beholding to this Court for their rules in Equity as Formerly when Ecclesiastical persons made Leases a misnosmer would avoid them but Elsmere in his time would notwithstanding the misnosmer make them good And he cited a case in Dyer and Matthew Mannings case Leon. Lovell and Lampetts case and Child and Bailies case Another case in Chancery One mortgaged Lands then confest a Iudgment and died The Mortgagée buys of the heir the Equity of Redemption for 200 l. The Bill was preferred by the Creditor by Iudgment against the Mortgagée and Heir either to be let in by paying the Mortgage money or else that the 200 l. received by the heir might be Assets And the Court said that the Mortgagees Estate should not be stirred But it was left by my Lord to be made a case whether the two hundred pounds should be Assets in the hands of the heir Mosedell the Marshal of the K. B's Case A Trial at Bar An Action of Debt brought against Mosedell for the escape of one Reynolds The Plaintiff said he could prove that he was at London three long Vacations Twisd It is hard to put three Escapes upon the Marshal for he may be provided only for one and he cannot give in Evidence a Fresh pursuit but it must be pleaded Hales I always let them give in evidence a Fresh suit upon a Nil debet And Wild said it was generally done So they gave evidence of an Habeas corp ad test ' and that the Prisoner went down too long before-hand and stayed too long after the Assizes were done at Wells in Somerset-shire and that he went back threescore miles beyond Wells before he retorned again for London Hales If an Habeas Corpus be granted to bring a person into
pleaded A special Verdict that the Lands are Copyhold Lands and surrendred to the use of one for eleven years the Remainder for five years to the Daughter the Remainder to the right heirs of the Tenant for eleven years The eleven years expire the Daughter is admitted the five years expire And there being a Son and Daughter by one Venter and a Son by another Venter the Son of the first Venter dies before admittance and the Daughter of the first Venter and her Husband bring Trover for cutting down of Trees And the question was if the admittance of Tenant for years was the admittance of the Son in Remainder Levings I conceive it is and then the Son is seized and the Daughter of the whole blood is his heir and he cited 4 Rep. 23. 3 Cro. 503. Bunny's case Wyld The Estate is bound by the Surrender Hales If a man doth surrender to the use of John Styles till admitted there is no Estate in him but remains in the Surrenderor but he hath a right to have an admittance If a surrender be to J. S. and his heirs his heir is in without admittance if J. S. dies About this hath indeed been diversity of Opinion but the better Opinion hath been according to the Lord Coke's Opinion I do not see any inconvenience why the admission of Tenant for life or years should not be the admittance of all in Remainder for Fines are to be paid notwithstanding by the particular Remainders and so the Books say it shall be no prejudice to the Lord. Twisd I think it is strong that the admission of Lessee for years is the admission of him in Remainder for as in a case of possessio fratris the Estate is bound so that the Sister shall be heir so here the Estate is bound and goes to him in Remainder Hales I shall not prejudice the Lord for if a Fine be assessed for the whole Estate there is an end of the business but if a Fine be assessed only for a particular Estate the Lord ought to have another If a surrender be to the use of A. for life the Remainder to his eldest Son c. or to the use of A. and his heirs and then A. dies the Estate is in the Son without admittance whether he takes by purchase or descent And Iudgment was given accordingly Draper versus Bridwell Rot. 320. ALL the Court held that an Action of Debt would lye upon a Iudgment after a Writ of Error brought Twisden They in the Spiritual Court will give Sentence for Tythes for rakings though they be never so unvoluntarily left which our Law will not allow of Wyld said that Actions personal transitory though the party doth live in Chester yet they may be brought in the Kings Courts Hales Shew a President where a man can wage his Law in an Action brought upon a Prescription for a duty as in an Action of Debt for Toll by Prescription you cannot wage your Law Pybus versus Mitford Postea THe Chief Iustice delivered his Opinion Wyld Rainsford and Twisden having first delivered theirs Hales I think Iudgment ought to be given for the Defendant whether the Son take by descent or purchase I shall divide the case 1 Whether the Son doth take by descent 2 Admitting he doth not whether he can take by purchase We must make a great difference betweén Conveyances of Estates by way of use and at Common Law A man cannot convey to himself an Estate by a Conveyance at Common Law but by way of Vse he may But now in our case here doth doth retorn by operation of Law an Estate to Michael for his life which is conjoyned with the Limitation to his heirs The reason is because a Limitation to the heirs of his body is in effect to himself this is perfectly according to the intention of the parties Objection The use being never out of Michael he hath the old use and so it must be a Contingent use to the heirs of his body But I say we are not here to raise a new Estate in the Covenantor but to qualifie the Estate in Fee in himself for the old Estate is to be made an Estate for life to serve the Limitation Further Objection It shall be the old Estate in Fee as if a man deviseth his Lands to his heirs the heir is in of the old Estate But I answer if he qualifie the Estate the Son must take it so as in Hutton fo So in this case is a new qualification Roll 789. 15 Jac. If a man makes a Feoffment to the use of the heirs of the body of the Feoffor the Feoffor hath an Estate Tail in him Pannel versus Fenne Moor 349. Englefield and Englefield 2 I conceive if it were not possible to take by descent this would be a Contingent use to the heirs of the body Objection It is limited to the heir when no heir in being Why I say it would have come to the heir at Common Law if no express Limitation had been and it cannot be intended that he did mean an heir at Common Law because he did specially limit it Fitz. tit Entayle 23. An Assise for the Serjeant at Mace's place in the House of Commons The Plaintiff had his Patent read The Court asked if they could prove Seisin They answered that they had recovered in an Action upon the case for the mean profits and had Execution Court For ought we know that will amount to a seisin Twisden Vpon your grant since you could not get seisin you should have gone into Chancery and they would have compelled him to give you seisin Hales A man may bring an Action upon the case for the profits of an Office though he never had seisin So the Record was read of his Recovery in an Action upon the case for the profits Hales This is but a seisin in Law not a seisin in Fact The Counsel for the Plaintiff much urged that the Recovery and Execution had of the profits was a sufficient seisin to entitle them to an Assise It was objected that the Plaintiff was never invested into the Office Hales said That an investiture did not make an Officer when he is created by Patent as this is but he is an Officer presently But if he were created an Herald at Arms as in Segars case he must be invested before he can be an Officer a person is an Officer before he is sworn Hales You are the Pernor of the profits and they have recovered them is not this a Seisin against you They shall find it specially but they chose rather to be Non-suit because of the delay by a special Verdict And the Court told them they could not withdraw a Iuror in an Assise for then the Assise would be depending The Roll of the Action sur le case fuit 19 Car. 2. Mich. Rot. 557. Term. Trin. 15 Car. II. 1663. Judge Hide 's Argument in the Exchequer-Chamber Manby versus Scott A Feme Covert departs
the Lady Ann Countess of Newport all that my House called Newport-house and all other my Lands c. in the County of Middlesex for her life And after her death I give and bequeath the premisses to my Grand-child Ann Knollis viz. the Plaintiff and to the heirs of her body Provided always and upon condition that she marry with the consent of my said Wife and the Earl of Warwick and the Earl of Manchester or of the major part of them And in case she marry without such consent or happen to dye without Issue Then I give and bequeath it to George Porter viz. the Defendant The Earl dyed Ann the Plaintiff married Charles the Plaintiff she being then about fourteen or fifteen years old without the consent of either of the Trustees And thereupon now a Bill was preferred to be relieved against this Condition and Forfeiture because she had no notice of this Condition and Limitation made to her c. To this the Defendant had demurred but that was over-ruled Afterwards there were several Depositions c. made and testified on each side the effect of which was this On the Plaintiffs part it was proved by several that it was always the Earls intention that the Plaintiff should have this Estate and that they never heard of this purpose to put any Condition upon her and believed that he did not intend to give away the Inheritance from her But that this Clause in the Will was only in terrorem and Cautionary to make her the more obsequious to her Grandmother The two Earls swore that they had no notice of this Clause in the Will but if they had they think it possible such reasons might have been offered as might have induced them to give their consents to the Marriage and that now they do consent to and approve of the same Some proof was made that the Countess of Newport had some design that the Plaintiff should not have this Estate but that the Defendant should have it But at last even she viz. the Countess was reconciled and did declare that she forgave the Plaintiffs Marriage and that she shewed great affection to a Child which the Plaintiff had and directed that when she was dead the Plaintiff and her Child should be let into the possession of the premisses and should enjoy them c. It was proved also that when there had been a Treaty concerning the Marriage betweén my Lord Morpeth and the Plaintiff and the Plaintiff would not marry him her Grandmother said she should marry where she would she would take no further care about her the Countess was dead at the time of this Suit It was proved that Mr. Fry was of a good Family and that the Defendant had 5000 l. appointed and provided for him by his Grandfather by the same Will On the Defendants part It was sworn by the said late Countess of Newport viz. In an answer made formerly to a Bill brought against her by the now Defendant for preferring of Testimony which was ordered to be read that the Marriage was private and without her consent and approbation and that she did not conceive it to be a fit and proportionable Marriage he being a younger Brother and having no Estate The like was sworn by the Earl of Portland the said Countesses then Husband and that it appeared she leapt over a Wall by means of a Wheel-Barrow set up against it to go to be married and that as soon as the Trusteés did know of the Marriage they did disavow and dislike it and so declared themselves several times and said That had they had any hint of it they would have prevented it Others swore that the Earl of Portland declared upon the day of her going away That he never consented thereto and that the Countess desired then that he would not do any thing like it and that the Earl of Warwick said He would have lost one of his Arms rather then have consented to the said Marriage On hearing of this Cause before the Master of the Rolls viz. Sir Harbottle Grimstone Baronet the Plaintiff obtained a decretal Order viz. That Anne the Plaintiff and her Heirs should hold the Premisses quietly against the Defendant and his Heirs and that there should be an Injunction perpetual against the Defendant and all claiming under him And now there was an Appeal thereupon and re-hearing before Sir Orlando Bridgman Knight then Lord-Keeper assisted by the two Lord Chief Justices and the Chief Baron before whom it was argued thus Serjeant Maynard The Plaintiff ought not to have relief in this Case The Plaintiffs Mother had a sufficient provision by the Earl of Newport's Care And therefore there is less reason that this Estate should be added to the Daughter The noble Lords the Trusteés when the thing was fresh did disapprove the Marriage however they may consent thereunto now The Devise was to the Plaintiff but in tail and afterwards to the Defendant We disparage not Mr. Fry in blood nor Family But people do not marry for that only but for Recompence and like Fortune There was a publique Fame or Report it is to be presumed of this Will in the house and were there not yet it was against her Duty and against Nature that she should decline asking her Grand-Mothers consent and Mr. Fry in Honour and Conscience ought to have asked it And therefore this practice ought not to receive the least encouragement in Equity 'T is true when there was a Demurrer it was over-ruled because the Bill prayed to be relieved against a Forfeiture for which there might be good cause in Equity But now it does not appear there is any in the Case The Estate is now in the Defendant and that not by any act of his own but by the Devisor and the Plaintiff this is a Limitation not a Condition For my Lord Newport had Sons It is somewhat of the same effect with a Condition though it is not so We have a Title by the Will of the dead and the act of the other party without fraud or other act of us and therefore it ought not to be defeated I take a difference betweén a devise of Land and money For Land is not originally devisable though Money is By the Civil Law and amongst civil Lawyers it has beén made a question Whether there shall be Relief against such a Limitation in a Devise But be that how it will Chattels are small things but a Freéhold setled ought not to be devested thus No man can make a Limitation in his Will better and stronger to disappoint his Devise conditionally than this is made If my Lord Newport had béen alive would he have liked such a practice upon his Grand-daughters as want of Notice In Organ's Case and Sir Julius Caesar's Case there was a Grant to an Infant on condition to pay 10 s. and no Notice given thereof before 't was payable yet because no body was bound to give notice it was adjudged
Court and the Sheriff let him go into the Country it is an escape And though he be not bound to bring him the direct way because he may be rescued yet he ought not to carry him round about a great way for the accommodation of the party if he doth it is an Escape but by this Evidence you let him go back threescore miles to which there can be no answer An Habeas Corpus retornable immediate is not fixt to an hour but to a convenient time They answered that he went back to carry back some Writings Counsel Here is an escape of one of the parties who dies before the Action brought whereby the whole charge is survived to the other before the Action brought and whether this shall purge the Escape is the question or how far it shall purge it Wild. Before you brought your Action the Debt is gone as to the Escape Hales We are made the Engines of doing all the mischief if this shall go unpunished being by colour of an Habeas Corpus So the Iury brought in a Verdict for the Plaintiff who declared in Debt for 6200 l. Greene versus Proude A Trial at Bar The question whether a Will or no Will The Plaintiff produced a Deed indented made between two parties the Man and his Son and the Father did agree to give the Son so much and the Son did agree to pay such and such Debts and Sums of money And there were some particular expressions resembling the form of a Will as that he was sick of body and did give all his Goods and Chattels c. but the Writing was both Sealed and delivered as a Deed And they gave evidence that he intended it for his last Will which the Court said was a good proof of his Will Then the Defendant setting up an Entail the Plaintiff exhibited an Exemplification of a Recovery in the Marquess of Winchesters Court in ancient demesne The other side objected that they did not prove it a true Copy But because it was ancient the Court said they should not be so strict upon the Evidence of it for the other side said the Court Rolls were burned in Baseing-house in the time of the Wars Hales I remember a case where one had gotten a presentation to the Parsonage of Gosnall in Lincoln-shire and brought a Quare Impedit and the Defendant pleaded an Appropriation there was no Licence of Appropriation produced but because it was ancient the Court would intend it Then they objected that they ought to prove seisin in the Tenant to the Praecipe Hales It being an ancient Recovery we will not put them to prove that He said the Mayor of Bristol had offered in evidence an Exemplification of a Recovery under the Town Seal of Houses in Bristol the Records being burned and that Exemplification was allowed for Evidence Hales If Tenant in Tail accept a Fine come ceo c. this doth not not alter his Estate If Tenant for life accept of a Fine Sur conusance c. he doth forfeit his Estate but it doth not alter the Estate for life Objection The Recovery is of Land in Kingscleare whereas the Land claimed is in a particular Ville called And the Vills are several and there are distinct Courts in every Ville Hales There are several Tythings of Dale Sale and Downe there is a Tythingman in every particular place but the Constable of Dale goes through all these may go for several Vills or one Vill There may be a Mannor that hath several little Mannors within it wherein are held several Courts for the ease of the Tenants but all but one Mannor And a Writ of Right close is Quod plenam rectam c. and runs to the Bayliff of the Mannor and may extend to the Precinct of the whole Mannor as the Mannor of Barton hath several little Mannors under it yet all within the Mannor Hales Where there is a Writ of Right close in ancient demesne it is not like a demand to a Sheriff here where he hath his direction for so many Acres Maynard But then he must demand it in the particular Ville where it is Hales If a Praecipe quod reddat be of Land in a Parish where it must be in a Ville there may be exception to the Writ but if he recovers it is good for now the time is past And so where it is infra manerium if he recovers it is good Browne versus AN Action brought in Canterbury Town The Defendant removes it by Habeas Corpus Then the Plaintiff declares here It was moved that it might be tried in some other County because the Iudges came there so seldom Court Let them shew cause why they should not consent and if they will plead Nil debet the Plaintiff will be willing to let them give any thing in Evidence And Simpson said it was the Opinion of all the Iudges that upon Nil debet pleaded Entry and Suspension may be given in Evidence which the Court did not deny So the Court ordered the other side to shew cause why they should not consent One Hillyard an Attorney sued for his Fees in this Court in the Court at Bristol But the Court said an Attorney ought not to wave this Court A motion was made by Sir William Jones for the Lord Mayor Starling See Bushel's case reported in Vaughan's Reports and the Recorder Howell One Bushell brought an Action against them for False Imprisonment And because the plea was long he prayed he might have time to plead Hales I speak my mind plainly that an Action will not lye for a Certiorari and an Habeas Corpus whereby the body and proceédings are removed hither are in the nature of a Writ of Error And in case of an erroneous Iudgmene given by a Iudge which is reverst by a Writ of Error shall the party have an Action of False Imprisonment against the Iudge No nor against the Officer neither The Habeas Corpus and Writ of Error though it doth make void the Iudgment it doth not make the awarding of the Process void to that purpose and the matter was done in a course of Iustice They will have but a cold business of it An Habeas Corpus and Certiorari is a Writ of right the highest Writ the party can bring So day was given to shew cause Lord Tenham versus Mullins A Trial at Bar about a fraudulent Deed. Hales There are thrée things to be considered Fraud Consideration and Bona fide Now the Bona fide is opposite to Fraud I remember a case in Twine's case If the Son be dissolute and the Father with advice of Friends doth settle things so that he shall not spend all though here be not a consideration of money yet it is no fraudulent Deed and a Deed may be voluntary and yet not fraudulent otherwise most of the Settlements in England would be avoided and so said Twisden Blackburne versus Graves TRover for 100 Loads of Wood Not-guilty