where the Plaintiff shews a speciall Title under the Possession of the Defendant As for example In trespasse for breaking of his Close the Defendant pleads that J. G. was seised of it in his Demesne as of fee and enfeoffed J. K. by virtue of which he was seised accordingly and so being seised enfeoffed the Defendant of it by which he was seised untill the Plaintiff claiming by calour of a Deed of Feoffment made by the sayd J. G. long before that he enfeoffed J. K. where nothing passed by the sayd Feoffment entred upon which the Defendant did re-enter here the Plaintiff may well traverse the Feoffment supposed to be made by the sayd J. G. to the sayd I. K. without making Title because that this Feoffment only destroies the Estate at will made by the sayd I. G. to the Plaintiff which being destroyed he cannot enter upon the Defendant albeit the Defendant cometh to the Land by Disseisin and not by the Feoffment of the sayd I. K. for the first Possession of the Defendant is a good Title in Trespasse against the Plaintiff if he cannot shew or maintain a Title Paramounâ— But the Feoffment of the sayd I. G. being traversed and found for him he hath by the acknowledgment of the Defendant himself a good Title against him by reason of the first Estate at will acknowledged by the Defendant to be to the Plaintiff and now not defeated But in the same case he cannot traverse the Feoffment supposed to be made to the sayd I. K. to the Defendant without an especiall Title made to himself for albeit that I. K. did not enfeoff the Defendant but that the Defendant disseised him or that he cometh to the Land by another means yet he hath a good Title against the Plaintiff by his first Possession not destroyed by any Title Paramount by any matter which appeareth by the Record upon which the Court is to adjudge and with this accord the opinion of 31 4. 1. That the materiall matter of the Bar ought alwaies to be traversed or other wise that which upon the pleading is become to be materiall and that which the Plaintiff traversed here to wit the Lease made by Wright to the Defendant is the materiall point of the Bar which destroyeth the Title Paramount acknowledged to the Plaintiff by the colour given in the Bar which is good without another Title made So note well the diversity where in pleading in Trespasse the first Possession is acknowledged in the Plaintiff by the Bar and where it appeareth by the pleading to be in the Defendant and where and by what matter the first Possession acknowledged in the Plaintiff by the Bar is avoided by the same Bar And upon this Iudgment was given for the Plaintiff as appeareth in 34. and 35. Eliz. Rol. Earl of Bedford versus Eliz. Anne Russell Mich. 34. and 35. Eliz. 2. IN tho Court of Wards the Case was thus between the now Earl of Bedford In the Court of Wards and Elizabeth and Anne the Daughters and Heirs of John late Lord Russell which was put ten times to all the Iustices to be resolved Francis late Earl of Bedford was seised of the Mannor of Baruake Chaldon c. in Commitatu Dorset in his Demesne as of see and so seised the fourth year of Queen Eliz. of it enfeoffed the Lord S. John of Bletsoe and others in see to the use of himself for forty years from the date of the sayd Deed and after to the use of the sayd John then his second Son and the Heirs Males of his body and for default of such Issue then to the use of the right Heirs of the sayd Earl the Feoffor for ever Afterwards Edward Lord Russell Son and Heir apparant to the sayd Earl dyed without Issue and after the sayd John Lord Russell dyed without Issue Male having Issue the sayd two Daughters afterwards to wit 27 Eliz. the sayd Francis Earl of Bedford by Indenture made between him and the Earl of Cumberland and others in consideration of the advancement of the Heirs Males of the body of the sayd Earl which by course of descent should or might succeed the sayd Earl in the name and dignity of the Earldome of Bedford and for the better establishment of his Lordships Mannors and Hereditaments in the name and blood of the sayd Earl covenanted and grantes with the sayd Covenantees that he and his Heirs hereafter shall stand seised of the sayd Mannors amongst others to the use of himself for life without impeachment of Waste and after his decease to the use of Francis the Lord Russell and the Heirs Males of his body for default of such Issue to the use of Sir William Russell Knight his youngest Son and the Heirs Males of his body with diverse Remainders over after which the sayd Francis Lord Russell tyed having Issue Edward the now Earl of Bedford and after this the sayd Francâ—s late Earl of Bedford dyed also and after the Daughters of the sayd John Lord Russell or the now Earl of Bedford shall have these Mannors of Barunke c. was the question and upon this it was argued by Cook Sollinton and others for the Daughters that an use at Common-law was but a confidence put in some to the benefit and behoof of others and that Conscience was to give remedy but for those for whose availe the confidence was and that was in this Case for the sayd Daughters which were the right Heirs to the sayd Francis late Earl of Bedford upon the first conveyance made 41 Eliz. for the confidence that he put in the Feoffees as to the profits that he himself was to have was but for the forty years and how can any other say that he shall have any other Estate when he himself saith that he will have it but for forty years and therefore in this case his right Heir shall take as a Purchasor by the intent of the Feoffor which hath power to make a disposition of the use at his pleasure and his pleasure as appeareth was to have it so and it is not as if the use had been limitted to be to himself for life with such a Remainder over in which Case the use of the Fee by the operation of Law ought to execuse in himself for the Free-hold which was in him before As where Land is given to one for life the Remainder to his right Heirs he hath a Fee-simple executed but here he shall have but an Estate for forty years precedent and that the Fee-simple cannot be executed by such a limitation made to the right Heirs but in case of an Estate for years only precedent such a limitation to his right Heirs afterwards is not good but in case of an use it is otherwise for it may remain to be executed to be an use in Esse where the right Heir shall be and therefore not to be resembled to an Estate made in Possession And an Vse is alwaies to be
guided according to that which may be collected to be the purpose and intent of the parties And therefore if a man make an Estate of his Land without limitation of any Vse or confidence the Law shall say that it is to his own use but if it be upon confidence then it shall be to the Vse of the party to whom it is made or according to the confidence which shâ—ll be absolute or according to that which is limitted which may alter that which otherwise shall be taken upon the generall confidence as 30 H. 6. Fitz. Devise If a man devise Lands to another in Fee he hath the use and Title of it but if it be limitted to his use for his life only the use of the Fee shall be to the Heir of the Devisor for by the limitation his intent shall be taken to be otherwise then it should be taken if this limitation had not been and in as much as in this case the Earl reserves to himself but the use for years it is evident that his intent never was to have the Fee to surrender this Term which perhaps he intended to be for the benefit of his will which shall be defeated contrary to his purpose if the Fee shall be also in him by the death of the sayd Iohn without Issue Male and therefore the sayd Daughters ought to have the Land And on the other part it was argued by Glanvil Serjeant and Egerton the Attorney Generall that this limitation made to the right Heirs is void in the same manner as if a man give Lands to another for life the Remainder to the right Heirs of the Feoffor in this case the Heir shall take by descent as a Reversion remaining to the Feoffor and not as a Remainder devested out of him for the ancient right priviledge the Estate which he may take and therfore he shall take it by descent and not by purchase for the name of right Heir is not a name of purchase betwixt the Ancestor and his heir because that doth instance that he happeneth to be heir he takes it by descent and then it comes too late to take by purchase And another reason that the Daughters shall not have it is because that when Sir Iohn Russell dies without Issue Male which Estate might have preserved the Remainder if it shall be a Remainder there was not any right heir of the sayd Francis Earl of Bedford to take this Remainder because that the sayd Earl survived him And therefore it is to bee resembled to this Case Land is given in Tail the Remainder to the right Heirs of I. G. the Donee dyes without Issue in the life of I. G. in this case albeit I. G. dyes afterwards having an heir yet this heir shall never have the Loud because he was not heir in Esse to take it when the Remainder fell and for the mean Estate for years this cannot preserve a Remainder no more then when Land is given for years the Remainder to the right heirs of I. G. this Remainder can never be good if I. G. be then living because such a Remainder cannot depend but upon a Free-hold precedent at least and therefore the Inheritance here shall go to the now Earl of Bedford by the second assurance And upon consideration of the Case and severall Confirmes had upon this amongst the Iudges and Barens it was at last resolved by all but Baron Clarke that the Daughters shall not have the Mannors in the County of Doâ—set but the now Earl of Bedford and principally upon this reason because there was nor right Heir to take as Purchasor where the mean Estate Taile was determined which was by the Lord Iohn without Issue Male for they agreed that the Remainder to the right Heirs if it be a Remainder cannot be preserved by the mean Estate for years for it ought to be a Free-hold at least which ought to preserve such a Remainder untill there be one to take it by name of Purchasor as right Heir And at this day they did not think there was any diversity between the Case of a Remainder in Possession limitted to the right heir of one and of a Remainder in use so limited over to another Mich. 34. and 35. Eliz In the Kings Bench. 3. IN Ejectione firmae upon speciall verdict the case was thus A man possessed of a Term of years in right of his wife made a Lease for years of the same Land to begin after his death which was the Lessor and afterwards he dyed and his wife survived him and the question was whether the wife shall have the Land after the death of the husband or the Lessee for if the husband had devised the same Land to an estranger yet the Wife shall have it and not the Devisee as it happened in the Case of Matthew Smith who made first such a Devise of a Term of his Wife and yet the Wife had it because that by the death of the husband before which the Devise did not take effect the wife had it in her first Right not altered in the life of her Husband but it was agreed in this case by all the Court that the Lessee shall have it during his Term for as the husband during his life might contract for the Land for the whole term which the wife had in it so might he do for any part of the term at his pleasure for if he may devise the Land for one and twenty years to begin presently he also may make it to begin at any time to come after his Death if the term of the Wife be not expired but for the Remainder of the term of the husband made no disposition during his life the Wife shall have it which by Popham this Case happened upon a specialll Verdict in the County of Somerset about 20 Eli. Where he and Sergeant Baber were Practisers in the Circuit there to wit the Lands were demised to husband and wife for their lives the Remainder to the Survivor of them for years the Husband granted over this term of years and dyed and the question was whether the Wife shall have the term of years or the Grantee and adjudged that the Wife shall have it and it was upon this reason because there was nothing in the one or the other to grant over untill there was a Survivor And the same Law had been if the Wife bad dyed after the Grant and the Husband had survived yet he shall have the term against his own Grant as if a Lease were made for Life the Remainder for years to him which first cometh to Pauls if A. grant this Term for years to another and afterwards A. is the first which commeth to Pauls yet the Grantee shall not have this Term because it was not in A. by any means neither in Interest nor otherwise untill he came to Pauls As if a man make a Lease for life the Remainder to the Right heirs of J. S. J. S. hath
that it shall be then holden as if no Adjournment had been the Essâ—ines had been the first day of Tres Trin. and the full Term had not been untill the fourth day which was the last day of the Term quod nota and so it was of the Adjournment which hapned first at Westminster and afterwards at Hertford from Michaelmas Term now last past Michaelmas Term 35 and 36 Eliz. Gravenor versus Brook and others 1. IN an Ejectione firmae by Edward Gravenor Plaintiff against Richard Brook and others Defendants the case appeared to be this Henry Hall was seised in his Demesne as of Fee according to the custom of the Mannor of A. in the County of D. of certain customary Tenements holden of the said Mannor called Fairchildes and Preachers c. In the third year of Henry the 8th before which time the customary Tenements of the said Mannor had alwaies been used to be granted by Copy of Court Roll of the said Mannor in Fee-simple or for life or years but never in Fee-tail but then the said Henry Hall surrendred his said Copy-hold Land to the use of Joane his eldest Daughter for her life the remainder to John Gravenor the eldest Son of the said Joane and to the Heirs of his body the Remainder to Henry Gravenor her other Son and the Heirs of his body the Remainder to the right Heirs of the said Henry Hall for ever wherupon in 3 H. 8. at the Court then there holden a grant was made by Copy of Court Roll accordingly and Seisin given to the said Joane by the Lord accordingly Henry Hall died having Issue the said Joane and one Elizabeth and at the Court holden within the said Mannor 4 H. 8. the death of the said Henry Hall was presented by the Homage and that the said Daughters were his Heirs and that the Surrender made as before was void because it was not used within the said Mannor to make Surrenders of Estates tails and therupon the said Homage made division of the said Land and limited Fairchilds for the purparty of the said Joane and Preachers for the purparty of the said Elizabeth and Seisin was granted to them accordingly Elizabeth died seised of her said part after which 33 H. 8. Margaret her Daughter was found Heir to her and admitted Tenant to this part after which Joane dyed seised of the said Tenements as the Law will And after the said Margaret takes to Husband one John Adye who with his said wife surrendred his said part to the use of the said John Adye and of his said wife and of their Heirs and afterwards the said Margaret died without Issue and the said John Adye held the part of his said wife and surrendred it to the use of the said Richard Brook and of one John North and their Heirs who were admitted accordingly after which the said John Gravenor died without Issue and now the said Henry Gravenor was sole Heirs to him and also to the said Henry Hall who had Issue Edward Gravenor and dyed the said Edward entred into the said Lands called Preachers and did let it to the Plaintiff upon whom the said Richard Brook and the other Defendants did re-enter and eject him And all this appeareth upon a speciall Verdict And by Clench and Gawdy an Estate tail cannot be of Copyhold Land unlesse it be in case where it hath been used for the Statute of Donis conditionalibus shall not enure to such customary Lands but to Lands which are at common Law and therfore an Estate tail cannot be of these customary Lands but in case where it hath been used time out of mind and they said that so it hath been lately taken in the Common Bench But they said that the first remainder limited to the said John Gravenor here upon the death of the said John was a good Fee-simple conditional which is well warrantes by the custom to demise in Fee for that which by custom may be demised of an Estate in Fee absolute may also be demised of a Fee-simple conditionall or upon any other limitation as if I. S. hath so long Issue of his body and the like but in such a case no Remainder can be limited over for one Fee cannot remain over upon another and therfore the Remainder to the said Henry was void But they said that for all the life of the said John Gravenor nothing was in the said Elizabeth which could descend from her to the said Margaret her Daughter or that might be surrendred by the said Margaret and her Husband and therfore the said Margaret dying without Issue in the life time of the said John Gravenor who had the Fee-simple conditionall nothing was done which might hinder the said Edward Son to the said Henry Gravenor of his Entry and therfore the said Plaintiff ought to have his Iudgment to recover for they took no regard to that which the Homage did 4th year of Hen. 8. But Fennor and Popham held that an Estate tail is wrought out of Copy-hold Land by the equity of the Statute of Donis conditionalibus for otherwise it cannot be that there can be any Estate tail of Copyhold Land for by usage it cannot be maintained because that no Estate tail was known in Law before this Statute but all were Fee-simple and after this Statute it cannot be by usage because this is within the time of limitation after which an usage cannot make a prescription as appeareth 22 23 Eliz. in Dyer And by 8 Eliz. a Custom cannot be made after Westm 2. And what Estates are of Copyhold land appeareth expresly by Littleton in his Chapter of Tenant by Copyhold c. And in Brook Title Tenant by Copyhold c. 15 H. 8. In both which it appeareth that a Plaint lyeth in Copyhold Land in the nature of a Formedon in the Descender at common Law and this could not be before the Statute of Donis conditionalibus for such Land because that before that Statute there was not any Formedon in the Descender at common Law and therfore the Statute helps them for their remedy for intailed Land which is customary by equity Add if the Action shall be given by equity for this Land why shall not the Statute by the same equity work to make an Estate intail also of this nature of the Land We see no reason to the contrary and if a man will well mark the words of the Statute of Westm 2. cap. 1. he shall well perceive that the Formedon in Descender was not before this Statute which wills that in a new case a new remedy may be given and therupon sets the form of a Formedon in Descender But as to the Formedon in the Reverter it is then said that it is used enough in Chancery and by Fitzherbert in his Natura brevium the Formedon in the Descender is founded upon this Statute and was not at Common Law before And the reason is because these Copyholds are now become by usage to be
took other Hay of his own to wit the Plaintiff and mixed it with the Defendants Hay after which the Defendant took and carried away both the one and the other that was intermired upon which the Action was bought and by all the Court cleerly the Defendant shall not be guilty for any part of the Hay for by the intermirture which was his own act the Defendant shall not be prejudiced as the case is in taking the Hay And now the Plaintiff cannot say which part of the Hay is his because the one cannot be known from the other and therfore the whole shall go to him who hath the property in it with which it is intermired as if a man take my Garment and Embroider it with Silk or Gold or the like I may take back my Garment But if I take the Silk from you and with this face or embroider my Garment you shall not take my Garment for your Silk which is in it but are put to she Action for taking of the Silk from you So here if the Plaintiff had taken the Defendants Hay and carried it to his house or otherwise and there intermired it with the Plaintiffs Hay there the Desendant cannot take back his Hay but is put to his Action against the Plaintiff for taking his Hay The difference appeareth and at the same day at Serjeants Inne in Fleetstreet the difference was agreed by Anderson Peâ—iam and other Iustices there and this case was put by Anderson It a Goldsmith be melting of Gold in a Pot and as he is melting it I will cast Gold of mine into the Pot which is melted together with the other Gold I have no remedy for my Gold but have lost it Bullock versus Dibler 3. IN an Ejectione firmae between Edward Bullock Plaintiff and John Dibler Deâ—endant the case appeared to be this A man was seised of a Copyhold Tenâ—â—ent pâ—rcell of the Mannor of Stratfield Mortimer the County of Berks in right of his wife in his Demesne as of Fee and surrendred this Copy bold Tenement by himself without his wife to the use of a stranger in Fee who was 〈◊〉 by the Loâ—â— accordingly the Husband dies the wife dies the Heir of the wife without any admittance enters upon the stranger and makes a Lease for a year to the Plaintiff upon whom the Defendant in right of him to whom the Surrender was made re-enters and adiudged that the Plaintiff ought to recover and that the surrender of the Husband was not as a discontinuance against the wise to put the Heir to his Plaint in nature of a Sur Cui in vita for a Discontinuance shall not be by a Deed of Feement only but by it with the Livery ensuing wherby the entire Fee-simple is given what Estate so ever the Feoffor had by reason of the Livery where by Deed of Grant nothing passed but that which the party might lawfully grant And here it shall be taken as if the Grant had been made by the Husband which passed but his Estate to wit that which he might lawfully grant without prejudice to his wife But yet there is this diversity between a surrender of an Estate for life and a surrender of an Estate in Fee to the use of a scranger to wit that by the one the Estate drowned in the Lord by the surrender and by the other it is not drowned in the Lord but is transferred to him to whom it was made upon which he is admitted to it otherwise in the last case it returns to him who surrendred and then upon the admittance he is in the Per by him who surrendred and not by the Lord or by the Surrender made by Tenant for life he to whose use it is made ought to take it of the Lord and he is there in by him and not by him who surrendred And this is the common difference betwixt Customary Estates for lives and Customary Estates of Inheritance And the Plaint of Cui in vita is given where recovery by default is against the husband and wife and not upon the surrender of the husband for suppose the husband had surrendred meerly to the Lord himself yet the wife might have entred after the death of the husband because the surrender goes but to the Estate which the husband might lawfully part with and therfore rather to be resembled to a Grant then to a Feoffment And notwithstanding that he was not admitted yet he might enter and take the profits and make a Lease according to the custom or bring an Action of Trespasse against him who disturbes him But if the Lord require his Fine or his Services and the Heir refuse to do them this may be a forfeiture of his Copyhold But untill lawfull Seisin made by the Lord because it belongeth to him the Heir may intermeddle with the Possession albeit he be not admitted by the Lord where it is an Estate of Iuheritance by the Custom And in this Term also in another case in the same Court it was adjudged that an Infant who surrenders his Copyhold Land within age may enter at his full age without being put any Suit for it And the first case was very well argued by one Brock a Puny utter Barister of the Inner-Temple this Term for the Plaintiff And it was the first Demur that he argued in Court Forth versus Holborough 4. IN an Action of Debt upon an Obligation of 200. marks brought by Robert Forth Doctor of Law and Mary his Wife as Executrix to Doctor Drewry against Richard Holborough the Case upon Demurrer appeared to be this to wit That the said Dr. Drewry was seised in his Demesne as of Fee of the Suit of the Mannor of Goldingham Hall in the County of Essex and so seised the last day of Novemb. 27 Eliz. demised it to the said Richard Holborough for 17. years from the said last day of Novemb. wherby the Defendâ—nt antred into it the next day and was therof possessed accordingly and so possessed the last day of Novemb. 28 Eliz. entred into an Obligation to the said Dr. Drewry with condition that if he his Heirs Executors Administrators and Assignes or any of them should well and truly pay or cause to be paid to Dorothy Goldingham widow or her Assigns at the Mannor-house of Goldingham Hall in the County of Essex for the Term of 17. years from the Feast of S. Michael the Arch-angel then last past or an Annuity or annuall Rent of 20. marks of lawfull English money at the Feast of the Annunciation of our Lady and S. Michael the Arch-angel by equall portions if the said Dororhy shall so long live and the said Richard Holborough or his Assigns or any other claiming by or under the said Richard or his Assigns shal or may so long occupy or enjoy the said Scite of the Mannor of Goldingham Hall that then the Obligation shall be void after which untill the 9th day of May 29 Eliz. the Defendant enjoyed the said Scite
35 E. Rot. 258. And Popham said further in this case that to erect an Hospitall by the name of an Hospitall in the County of S. or in the Bishopprick of B. and the like is not good because he is bound to a place too large and incertain But a Colledge erected in Accademia Cantabrig or Oxon. is good and sâ—me are so founded because it tends but to a particular place as a City Town c. King versus Bery and Palmer 2. IN an Ejectione firmae brought by William King against John Bery and William Palmer Defendants for two Messuages and certain Lands in Halstead in the County of Leicester upon a Demise alledged to be made by Dorothy Pool and Robert Smith the case upon a speciall Verdict was this The said Dorothy was Tenant for life of the said Tenants the Remainder over to the said Robert Smith and his Heirs and they being so seised made the Lease in the Declaration upon which the Action was brought And per curiam the Lease found by the Verdict doth not warrant the Lease alledged in the Declaration for although they joyned in the Demise yet during the life of the said Dorothy it is her Demise and not the Demise of the said Robert Smith but as his confirmation for that time for he hath nothing to do to meddle with the Land during the life of the said Dorothy but after the death of the said Dorothy then it shall be said to be the Domise of the said Robert Smith and not before because untill this time Smith hath nothing to do to meddle with the Land And in a more strong case If Tenant for life and he in the Reversion in Fee make a Gift in tail for the life of Tenant for life it shall be said to be his Gift but after his death it shall be said the Gift of him in the Reversion and if the Estate tail had expired during the life of the said Tenant for life he shall have the Land again in his former Estate and there shal be no forfeiture in the case because he in the Reversion of the immediate Estate of Inheritance had joyned in it and therfore hath dispensed with that which otherwise had been a meer forfeiture of the Estate for life wherby it was awarded by the Court that the Plaintif take nothing by his Bill in 33 34 Eliz. Rot. And the Judgment is entred Hill 34. Eliz. Ret. 72. 3. In this Term I hapned to see a Case agreed by the Iustices in 3. 4. Eliz. which was this If a man make a Lease of two Barns rendring Rent and for default of payment a Re-entry if the Tenant be at one of the Barns to pay the Rent and the Lessor at the other to demand the Rent and none be there to pay it that yet the Lessor cannot enter for the Condition broken because there was no default in the Tenant he being at one for it was not possible for him to be at both places together And upon this Case now remembred to the Iustices Popham Walmesley and Fennor said That perhaps also the Tenant had not money sufficient to have been ready to have paid it at either of the said places but it is sufficient for him to have and provide one Rent which cannot be at two places together And by the Case reported here also If Lands and Woods are demised together the Rent ought to be demanded at the Land and not the Woood because the Land is the more worthy thing and also more open then the Wood And therfore by the three Iustices aforesaid Rent ought not to be demanded in any private place of a Close as amongst Bushes in a Pit or the like nor in the open and most usuall passage therof as at a Stile Gate and the like 4. Vpon a Prohibition sued out of the Kings Bench the Case appeared to be this The late Lord Rich Father to the now Lord Rich devised to his Daughter for her advancement in marriage 1500. upon condition that she marry with the consent of certain friends and deviseth further that if his Goods and Chattels are not sufficient to pay his Debts and Legacies that then there shall be 200 l. a year of his Lands sold to supply it and dies making the now Lord Rich his Executor his Goods and Chattels not being sufficient to pay the Debts of the Testator as was averred the said Daughter married with a Husband against the will of those who were put in trust to give their assents and the Husband and the Wife sued in the Spirituall Court for the Legacy And it was surmised that they would not allow the proofs of the said now Lord Rich exhihited to prove the payment of the Debts of his Testator and further that they would charge him for the sale of the Land upon which matter the Prohibition was granted to the Delegates before whom the matter depended and now consultation was prayed in the case Vpon which it was affirmed by a Doctor of the Civill Law that they will allow the proofs for the payment of the Debts according to our Law and that the Legacy shall not be paid untill the Debs are satisfied But he said that by the Law if the Executor do not exhibit his Inventory but neglect it for a year or more that then if any omission or default be in the true value of the Inventory exhibited that then such on Executor for this default shall pay all the Legacies of his Testator of what value soever they are not respecting the Debts or the value of the Goods or Chattels how small soever the omission or default be in the Inventory And so he said was the case of the now Sir Richard S. who did not bring in the Inventory for four years after the death of the Testator and that in the Inventory exhibited the values of every thing were found to be too small and therfore to be charged by their Law albeit he hath not Goods and Chattels sufficient of the Testators To which it was answered that this was quite without reason for by such means every Subject of the Realm may be utterly defeated if he take upon him the charge of an Executorship And if this shall be admitted no man will take upon him the Execution of the Will of any and by such a means none will have their Wills performed which shall be too inconvenient And they said further that in as much as Debts are to be proved by the Common Law of the Realm those of the Ecclesiasticall Courts ought to admit in the proof therof such proofs as our Law allows and not according to the precisenesse of their Law And although by their Law such a Condition as before being annexed to a Legacy is void because that marriage oughr to be free without Coercion yet where we are to judge upon the point as we are here if the Execution happen to be charged because of the sale of Land and for
be avoided and in the same manner here But Popham took a diversity where the Possession or the Estate of the Queen is determined and where not for where the Estate is determined there the Subject may enter into the Land without Office or ouster le main But where the Possession continues there the party shall not come to it unlesse by petition Monstrans de droit officio or the like and therfore hee said that if the Queen had an Estate pur auter vie or depending upon any other Limitation if it be determined according to the Limitation the party who hath interest may enter so in the case of the Devise put before And if a Lease be made for life the Remainder in Tail the Reversion in Fee and he in the Remainder in Tail levy a Fine Sur conusance de droit come ceo que il ad de son done to a stranger with proclamations according to the Statute and afterwards the stranger convey the Remainder to the Queen her Heirs and Successors and after the Tenant for life dies and after he in the Remainder in tail dies without Issue now may he in the Remainder in Fee enter because the Estate of the Queen is determined But here the Queen hath a Fee-simple in her self but determinable upon the Estate-tail which yet remaineth which Fee-simple in Reversion cannot be divested out of the possession of the Queen but by matter of Record of so high nature as it is in her to wit by Petition Monstrans de droit or the like As if a Reversson or Remainder be alienated in Mortmain the claim of the Lord sufficeth therâ— to vest the Reversion in the Lord for the Alienation but if the Reversion or Remainder of which such a claim was made be conveyed to the King his remedy is now by Office Monstrans de droit or Petition for claim will not now serve him for this shall be to divest the possession out of the Queen which by such means cannot be done no more then where a Reversion or Remainder is granted to the Queen upon Condition but he ought to have an Office to find the performance of it if it be to be performed by matter in pais and without Monstrans de droit or otherwise it shall not be divested out of the Queens possession yet in the case of a common person a claim will divest it out of them but not so of the Queen And these cases Gawdy agreed but he conceived that in the case in question the claim made determines the Estate of the Queen which is made by means of the Fine upon the Statute And Popham denied the case put in 7 H. 6. to be Law as it is put upon the opinion of Strange there for it is cleer that the claim there does not divest any possession which was in the King by means of the Wardship and if this be not therby defeated the claim does not help the Disseisee against the Descent and this appeareth fully by Littleton who saith so of a Claime which avoids a Descent to wit that it ought to be such upon which the Disseisee may upon every such Claim made have an Action of Trespasse or Assise against the Dissessor or him who is in possession if he continue his possession after such Claim made which cannot be in this case where the possession is in the King which cannot be defeated by such a Claim And in the Lord Dyer where the Feoffee or Mortgagee of Lands holden of the Queen in Capite by Knights Service died before the day of Redemption his Heir being within age wherby upon Office found the Queen had the Wardship of the body and land of the Heir after which the Mortgagee at the day of redemption made payment and of this also an Office was found yet he could not enter either before or after Office but upon Monstrans de droit therupon he had his Ouster le main And the reason why a Claim shall serve in this case between common persons is because that by such Claim the thing it self is devested out of him who had it before and therby actually vested in him who made the claim As where a Villain purchase a Reversion by the Claim of the Lord the Reversion is actually in him as it is of a Possession by Entry But where he is put to his Claim to devest any thing out of a common person he is put to his Suit to devest it out of the Queen Aad to say that Bret should not take advantage of this Conveyance made to make it good by the Fine I think the Law to be clear otherwise as to this point for the Statute of Fines was made tor the security of Purchasors and Possessors of Land and therfore taken more strongly against them who pretend Right or Title and for the greatest advantage that may be for the Possessors of Lands and therfore the Possessor by what ever means he can may make his Fine to be forceable And therfore the Fine upon this Statute differeth much from a Fine at Common Law for where at Common Law an Infent being a Disseisor was disseised by one who levies a Fine and the year and the day passe without claim of the first Disseisee now was the first Disseisee barred yet if afterwards the Infant who was not bound by the Fine enter the first Disseisee may enter upon him because that by this entry the Fine at Common Law was utterly defeated But now by the Statute such a Fine being levied with Proclamations the first Disseisee not pursuing according to the Statute is barred for ever And although the Infant enter at full age and undoes the Fine as to himself yet this Fine remains alwaies to bar the first Disseissee and makes that the Infant hath now Right against all the world and so now takes advantage therof And this is the intent of the Statute for the repose of Controversies and Suits and the quiet of the people And if I procure a Fine to be levied on purpose to bar another of his Action which he may have against me for the Land yet I shall take advantage of this Fine and the other shall have no advantage against me because of this Covin for if this should be admitted it will countervail the benefit which is intended to be by means of the Statute of Fines And if a Disseisor enfeoffee another upon Condition to the intent that a Fine with Proclamations shall be levied to the Feoffee to bar the Disseisee and after the Disseisee is barred the Disseisor enter for the Condition he shall yet take advantage of the Fine against the Disseisee And Popham put a case which was in this Court 23 Eliz. upon a speciall Verdict which was between Okes Plaintiff upon the Demise of John late Lord Sturton of Cottington which was this The Lord Sturton was Tenant for life of certain Lands in Lighe in the County of Somerset the remainder in Tail
to Charles late Lord Sturton Father to the said Iohn Lord Sturton and the said Charles Lord Sturton disseised the said Lady Sturton and levied a Fine of the said Land to Cottington and his Heirs with Proclamations according to the Statute and warranted it against him and his Heirs And the said Lord Charles dyed before the Proclamations past and the Warranty descended upon the said John Lord Sturton after which and before the Proclamations past the said Lady Sturton entred upon the said Cottington after which the said Lady died and after her death and all the Proclamations past the said John Lord Sturton as Heir in Tail entred and made the Lease to the said Okes upon whom Cottington the Defendant entred as under the right of the said Cottington the Conusee And I perceiving the Court strongly to incline upon the matter of Warranty that it shall bar the entry of the Heir and make a discontinuance against him according to the inference which is taken by Littleton in his Chapter of Discontinuance because the truth was and so acknowledged to the Court although it were omitted in the Verdict that the said Charles Lord Sturton was attained of Felony and Murther and so the blood corrupted between the said Charles and John Lord Sturton wherby in a new Action the Garranty had not hurt the Title of the said Lord John I then moved the Court upon the other point of the Fine with Proclamations and the Court also agreed in this point if the Warranty had not been that yet the Fine with Proclamations shall bar the said John Lord Sturton notwithstanding the entry made by the Lady Sturton were before the Proclamations past because that notwithstanding his regresse made the Reversion remains in Cottington not defeated by his regresse in respect of the Statute whch makes that the Fine remains effectuall against the Heir in Tail if nothing be done by him to undo it before the Proclamations past as by claim regresse and the like but the Act of a stranger shall not help him wherby Iudgment being therupon given against the said Okes the said John Lord Sturton stood satisfied and the Cottingtons enjoy the Land to this day wheras if this opinion of the Court had not been on a new Action the said Sir John might have been relieved against the Warranty And Gaudy said that this was a very good Case for the point upon the Statute in this case Earl of Shrewsbury versus Sir Thomas Stanhop 8. GIlbert Earl of Shrewsbury brought a Scandalum Magnatum against Gilbert Earle of Shrewsbury against Sir Thomas Stanhop in a Scandalum Magnatum Sir Thomas Stanhop Knight and it was upon the Statute Tam pro Domina Regina quam pro seipso c. For that communication was had between the said Sir Thomas and one Francis Fletcher of divers things touching the said Earl the said Francis at such a day and place said to the said Thomas My Lord the said Earl meaning is a Subject innuendo that the said Earl was a Subject of the now Queen the said Sir Thomas then and there said of the said Earl these slanderous words to wit he intending the said Earl is sorry for that meaning that the said Earl was sorry that he was then a Subject to our said Soveraign Lady the Queen that is his grief meaning that it was grief to the said Earl that the said Earl was Subjâ—ct to the Queen to the damage of the said Earl of 20000 l. To which the said Sir Thomas Stanhop said that a question was formerly moved between the said Earl and the Defendant touching the subversion and drawing away of certain Weares heretofore erected by the said Sir Thomas at Shelâ—ord in the said County of Nott. where the Action was brought to oust the River of Trent there that for the subversion therof a Petition was exhibited to the privy Councell of the Queen before the speaking of the said words by certain Inhabitants of the County of Lincoln and divers other places not known to the Defendant with the privity allowance and knowledge of the said Earl which Petition at the time of the speaking of the said words depended before the said Councell not determined wherupon at the day and place comprised in the Declaration there was Communication between the said Defendant and the said Francis Fletcher concerning their purpose to have the said Wears subverted and touching the said Petition upon which the said Francis said to the said Defendant the matter meaning the Petition aforesaid hanging undetermined before the Councell aforesaid is to be heard before the privy Councel meaning the aforesaid Councell of the Queen and what their Honours meaning the Councell aforesaid determine my Lord the aforesaid Earl meaning will willingly obey To which the said Francis then there answered saying My Lord the aforesaid Earl meaning is a Subject upon which the said Defendant they then having speech as well of the said Petition as of the order therupon to be taken by the said Councell answered saying the words comprised in the Declaration meaning that he was sorry and grieved that he was subject to the order to be made upon the Petition aforesaid by the said Councell and averred that this was the same speech upon which the Action was grounded upon which it was demurred in Law and for cause shewn according to the Statute it was alledged that the bar was defective because it is not alledged at what place nor by whom nor against whom the Petition was exhibited and also because that by the Bar the matter of the Declaration is not confessed avoided or traversed and also that the Bar was insufficient And it seemed to Fennor that the matter of the Bar had been sufficient if it had been well pleaded but the Plaintiff alledgeth the words to be spoken in one sence in the Affirmative and the Defendant shews matter also in the Affirmative which proves the words to be spoken in another sence then the Declaration imporrs and two Affirmatives can never make a good Issue and therfore the Defendant ought to have taken a traverse to that which is comprised in the Declaration and for want of this traverse the plea in Bar is not good Gawdy said that the Bar is not sufficient neither in matter nor form not in matter because that wheras Fletcher said that the said Earl was a Subject this can have no other sence but that he was a Subject to the Queen in his Allegiance and her Soveraignty and so much is drawn out of the course of their former speech and therfore the answer which the Defendant made to it refers to his subjection of alleagiance and not to the matter of obedience which he owed to the order of the said Councell and if it cannot have any other sence in good understanding he cannot help himself now by an Innuendo which is in it selfe according to common intendment contrary to that which the nature of the words
not properly said an Use untill that it be said in Esse to take the Profits themselves But I am to turn this Argument against him who made it for if it be so the Use can never be in suspence and iâ— so it follows that no Possession by means of any such Use can be in suspence but staies where it was before to be executed when the Use happens to be in beeing But as to that that a Reversion or Remainder may be of that which we call an Use so also may such a Use be in suspence in the same manner as the Possession it self but not otherwise And as to Cramners Case formerly put the Law is so because nothing appeareth in the case to be done to the disturbance of this contingent Vse in the interim before it happen But upon the Case put of the Lady Bray upon which it hath been so strongly relied it was thus The Lord Bray made an assurance of certain Lands to the use of certain of his Councell untill the Son of the said Lord Bray should come to the age of 21. years for the livelyhood of the said Son and of such a Wife as he shall marry with the assent of the said Councell and then to the use of the said Son and of the said Wife and of the Heirs of the body of the said Son The Father dies the Son was become in Ward to the King after which one of the said Councellors dies the King grants over the Wardship of the said Son after which the said Lord Bray by the assent of his Guardian and of the surviving Councellors marries the Daughter of the then Earl of Shrewsbury after which the Husband aliens the same Land to one Butler and dies and upon Action brought by the said Lady against the said Butler for the same land she was barred by Judgment and upon what reason because she was not a person known when the Statute was made which must be in every case of a Freehold in Demesne as well in case of an Use as in case of a Possession And therfore a Lease for years the Remainder to the Heirs of I. S. then living is not good and the same Law of an Vse And so it was agreed by all the Iustices very lately in the case of the Earl of Bedford but in these Cases it remaineth to the Feoffor and because it doth not appear at the time of the assurance who shall be the Wife of the said Son so that there was not any to take the present Free-hold by name of the Wife of the Son she takes nothing by the assurance but this reason makes for our side to wit That if there were none to take the Free-hold in Demesne from the Use when it falleth he shall never take it The other reason in this Case was because she was not married by the consent of all the Counsellors for that one was dead nor according to the power given by the agreement but by the authority of the Guardian that the power which the Father had upon his Son was ceased And Nota That by a Disseisin the contingent Use may be disturbed of his Execution but there by the regresse of the Feoffee oâ— his Heirs when the Contingent happen it may be revived to be executed But by the release of the Feoffee or his Heirs the Contingent in such a case by Popham iâ—â—â—â—red oâ— all possibility at any time to be executed And to that which hath been said that the generall and universall Assurances of men throughout all the Realm at this â—ay arâ— by means of Vses and that it shall be a great deal of danger and inconvenience to draw them now in question or doubt and that it now trembleth upon all the Possessions of the Realm and therfore it shall be too dangerous to pull up such Trees by the roots the Branches wherof are such and so long spread that they overshadow the whole Realm Popham said That they were not utterly against Uses but only against those and this part of them which will not stand with the publike Weal of of the Realm and which being executed shall make such an Estate which cannot stand with Common Law of the Realm or the true purport of the Statute and therfore he said that it was but to prune and cut off the rotten and corrupt branches of this Tree to wit that those which had not their substance from the true Sap nor from the ancient Law of the Realm nor from the meaning of the Statute and so to reduce the Tree to its beauty and perfection The same reason he said might have been made in the time of Edw. 4. against those Arguments which were made to maintain the common Recoveries to bar Estates-tail But if such a reason had been then made it would have been taken for a bare conceit and meer trifle and yet Vses were never more common then Estates-tail were between the Statute of Donis conditionalibus and the said time of Edw 4. But the grave Iudges then saw what great trouble hapned amongst the people by means of Intails and what insecurity happened by means therof to true Purchasors for whose security nothing was before found as we may see by our Books but collaterall Warranty or infinite delay by Voucher and thus did the Iudges of this time look most deeply into it wherupon upon the very rules of Law it was found that by common Recovery with Vouchers these Estates-tail might be barred which hath been great cause of much quiet in the Land untill this day that now it begins to be so much troubled with the cases of Vses for which it is also necessary to provide a lawfull remedy But he said plainly That if the Exposition made on the other side shall take place it will bring in with it so many mischiefs and inconveniencies to the universall disquiet of the Realm that it will cast the whole Common-wealth into a Sea of troubles and endanger it with utter confusion and drowning And to that which was said That a Remainder to the right Heirs of I. S. or to the Heirs of the body of I S. or to the first Son as here are so in the custody of the Law that they cannot be drawn out that therfore no forfeiture can be made by the Feoffment made by him who hath the particular Estate To that he said That a Disseisin made to the particular Estate for life draws out such Remainders to the right Heirs as is proved expresly by 3 H. 6 where it is holden that a collaterall Warranty bars such a Remainder in obeyance after a disseisin And by Gascoigne 7 H. 4. If such a Tenant for life makes a Feoffment in Fee it is a Forfeiture but he conceived that in the life time of I. S. none can enter for it but this is not Law and when by the Feoffment the particular Estate is quite gone in possession and in right also the remainder shall never take
it was not an immediate descent in Deed but upon the operation of Law which gave Wardship and the like but not to prejudice any third person And he said that although the Queen or other Lord upon eviction of the Land descended or the determination of the Estate therof may resort to Lands devised or assured and take a third part therof yet therby the Devise or Assurance remains effectuall against the Heir but this is by a speciall clause in the Statute of 34 H. 8. which gives it to them but no such remedy is given to the Devisee to help him if his part be abridged or evicted And the words are precise to wit If the part left or assigned to the King or to any Lord at any time during their Interest therin be evicted c. that they shall have so much oâ— the two parts residue as shall make a full third part of the remainder not evicted c. Wherby it appeareth that this is given only for the benefit of the Lords and not of the Heir nor of the Devisee fâ—r if after the Interest of the Queen or other Lord be determined this which was left he evicted from the Heir it shall not be helped against the devise but the Devise remains good to the Devisee against the Heir for the whole Land devised wherby it appeareth that it was the very purport and intent of the Statute that the Devise remain as it was at the time of the death of the Devisor without having regard to that which hapneth Ex post facto unlesse for this point helped by this speciall clause of the Statute and this is for the Lord and his Interest only and for no other And by him also cleerly the Statute which is an explanatory Law shall never be taken by equity in the precise point explained to impugne the point of explanation as here the Statute wills that the Estate of Inheritance comprised in the former Statute shall be explained to be Fee-simple it cannot now by any equity be as to the power to make a Devise which is meerly given by the authority of the Statute said to be of any other Estate then Fee-simple of which a Devise may be made And therfore if Land be given to another and his Heirs for the term of another mans life a Devise cannot be made of this because it is not an Inheritance in Fee-simple but only the limitation of a Free-hold And where the Statute saith having a sole Estate we cannot by any equity that it shall be taken of any joynt Estate as to make any disposition of that which she had in Ioynture and therupon the greater part resolved that Iudgment shall be given against the Plaintiff for the Defendants Southwell versus Ward 4. IN a second deliverance between Richard Southwell Esquire Plaintiff and Miles Ward Avowant by Demurrer upon the Avowry the Case appeared to be this That Iohn Prior of the Church of Saint Faiths in Horsham in the County of Norfolk was seised in his Demesne as of fee in the right of his said Priory of 8. Messuages 300. acres of Land 30. acres of Meadow 60. acres of Pasture and 200. acres of Wood with their Appurtenances in Horsham aforesaid And so seised the said Prior with the assent of his Covent by their Deed indented shewn forth bearing date the first day of Ianuary 13 E. 4. and by licence of the King aforesaid granted to William then the Master of the Hospitall of St. Giles in Norwich and to the Brothers of the same Hospitall and to their Successors 200. Fagots and 200. Focalls called Astle-wood yearly to be taken of all the Lands and Tenements of the said Prior and Covent in Horsham aforesaid by the Servants of the said Prior and Covent and their Successors yearly to be carried to the said Hospitall at the costs and expences of the said Prior and Covent and their Successors at the Feast of St. Michael or 20 s. of lawfull money for them at the election of the said Master and Brethren and their Successors to take yearly in the same Lands and Tenements in Horsham to the use of the poor and infirm persons there being or coming So that if it happen the said Fagots and Focalls or the said 20 â— for them to the said Master and Freres in form aforesaid to be arrear in alâ—o part c. then they may distrain in the said Lands and Tenements and the Distresse detain until they be fully satisfied of the said Fagots and Focals or of the said 20 s. for them as is aforesaid with this Proviso further That if at any one or more times the said Master and Brethren have chosen to have the Fagots and Focals yet at any other time they make the 20 s. for them and although they have taken the 20 s. for them once or oftner yet at any other time they may take the Fagots and Focals themselves and that they may so vary tâ—ties quâ—ties and dâ—strain for them accordingly reasonable notice being given of their Election in form aforesaid And the said Master and Brethren granted by the same Deed to the said Prior and Covent and their Successors that they or others sufficiently warranted by them would give sufficient notice of their election yearly the first Sunday of April in the Church of the said Hospital to some Officer of the said Prior and Covent and their Successors if they send any thither for this cause By force of which Grant the said Master and Brethren were seised of the said yearly rent of the said 200. Fagots and 200. Facals called Astlewood accordingly and so being seised they by their sufficient Writing enrolled of Record in the Chancery in the first year of the late King Ed. 6. gave and granted to the same King the said Hospitall all the Lands Tenements and Hereditaments of the said Hospitall To have and to hold to him and his Heirs and Successors for ever wherby the said King was therof and of the said annuall Rent seised accordingly and so seised the 7. day of May in the same year the said King Edw. by his Letters Patents bearing date the same day and year granted the said Hospitall and the rent of the said Fagots and Focals and other the Premisses to the Major Sheriff Citizens and Commons of the City of Norwich and to their Successors for ever and for 1600. Fagots and 1600. Focals of the said annuall rent of 200. Fagots and 200. Focals being arrear at the Feast of S. Michael the Arch-angel 23 Eliz. the said Ward took the Distresse and made Conusance as Bailiff to the said Major Sheriff c. And it was moved that the Avowry was not good first because it being matter of Election which was granted to the Master and Brethren and their Successors to wit the Fuell or the 20 s. it doth not appear that they ever made any election of the one or the other and untill it appeareth that they have
to attend and be assistant to the Iustices Sheriffs or other Ministers of the King in the doing of it 3. AT the same time it was also resolved by them all except Walmsley Fennor and Owen in the Case of one Richard Bradshaw and Robert Burton who with others lately by word entred themselves into an agreement one with another to rise and put themselves into Armes and so to go from one Gentlemans house to another and so from house to house to pull down Inclosures generally that this so appearing by their own confession or by two Witnesses according to the Statute is high Treason by the Statute of 13 Eliz. cap. 1. The words of which Statute are That if any intend to levy War against the Queen and this maliciously advisedly and expresly declare or utter by any words or sayings that this shall be high Treason For all agreed that Rebellion of Subjects against the Queen hath Rebellion of Subjects high Treason been alwaies high Treason at the Common Law for the Statute of 25 E. 3. cap. 1. is that levying of War within the Realm against the King is Treason and Rebellion is all the War which a Subject can make against the King But Walmsley and the others with him said that the Statute of 1 Mar cap. 12. 10. That if any to the number of twelve or more assemble themselves to the intent to pull down Inclosures Pales and the like with force and continuing together after proclamation according to the Statute to go away by the space of an hour or do any of the Offences mentioned in the Statute that this is Felony So that if these Actions had been Treason at the Common Law it had been to no purpose to have made it Felony And it seemed to them that the resistance ought to be with force to the Queen before that such Acts shall be said Treason But all the other Iustices agreed and so it was put in ure lately in the case of the Prentices of London that if any assemble themselves with force to alter the Laws or to set a price upon Victualls or to lay violent hands upon the Magistrate as upon the Major of London and the like and with force attempt to put it in action that this is Rebellion and Treason at Common Law and yet this Statute of 1 Mariae makes it in such a case but Felony And they put a diversity between the cases of pulling down Inclosures Pales c. comprised in the Statute of 1 Mar. for those are to be understood where diverse to the number of twelve or more pretending any or all of them to be injured in particular as by reason of their common or other Interest in the Land inclosed and the like and assembling to pull it down forcibly and not to the cases where they have a generall dislike to all manner of Inclosures and therfore the assembling in a forcible manner and with Armes to pull them down where they have any Interest wherby they were in any particular to be annoyed or grieved is not Treason but the case here tending to a generality makes the act if it had been executed to be high Treason by the câ—uâ—se of the Common Law And therfore the intention appearing as the case is here it is Treason by the Stâ—tute of 13. aforesaid Periam in some manner doubted of the principall case but to intend to rise with force to alter the Laws to set price upon any Victuals or to use force against a Magistrate for executing his Office of Iustice and the like he said that they were cleerly Treason by the Statute of 13. aforesaid if it may appear by expresse words or otherwise as the said Statute mentions for all these tend against the Queen her Crown and Dignity and therfore shall be as against the Queen her self And if it had been put in practice it had been Treason at the Common Law Here ends the LORD POPHAM'S REPORTS An addition of certain Select CASES in the time of KING JAMES and KING CHARLES Trin. 15. Jac. In the Kings Bench entred Hill Jac. Rot. 194. Brooks Case IN an Ejectione firmae brough by one Brook against Brook the Case was thus Iohn Wright a Copyholder in Fee 10 Eliz. surrendred his Land into the hands of the Lord by the hands of Tenants according to the Custom c. without saying to whose use the Surrender should be And at the next Court the said Iohn Wright was admitted Habendum to him and his Wife in Tail the remainder to the right Heirs of Iohn Wright and the Wife of Iohn Wright now Defendant was seised from the time of Where upon surrender of Copyhold land no use is limited to whole use iâ— shall be the admittance untill this day And it was objected by the Counsell of the Plaintiff that the surrender was void because no use was limitted and therfore by constitution of Law ought to be to the use of the Surrender as if a Feoffment be made and no Use limited it shall be to the Use of the Feoffor or as it is in Sir Edward Cleers Case Coke lib. 6. 18. If a Feoffment be made by one to the use of his last Will he hath the use in the mean time 2. That the admittance was not available to passe an Estate to the Wife for she was not named in the Premisses but only in the Habendum and the Office of an Habendum is to limit the Estate and not the person and therfore it is said in Throgmorten and Tracies Case in Plowd com That if one be named to take an Estate in the Habendum where he was not named at all in the Premisses this is not good But it was resolved by the whole Court for the first point that the subsequent Act shâ—ll explain the Surrender for Quando abest Provisio partis adest provisio legis And when the Copyholder accepts a new admittance the Law intends that the Surrender generally made was to such an Vse as is specified in the admittance and the Lord is only as an Instrument to convey the Estate and as it were put in trust to make such an admittance â—s he who surrenders would hâ—ve him to make And Crook Iustice said Fides adhibita fidem obligat For the second point it was also agreed by the Court that the Wife shall take by this admittance albeit she were not named in the Premisses but only in the Habendum and they agreed that in Feoffments and Grants the party that is not named in the Premisses shall not take by the Habendum and therfore Throgmorton and Tracies Case as to this point is good Law But this case of a Copyhold is like to the case of a Will or to the case of Frank-marriage in which it is sufficient to passe an Estate albeit the party be only named in the Habendum and if it should be otherwise the Estates of many Copyholders would be subverted And so they resolved that Iudg-should be
As to the first words Base Gentleman they are but words of choller 2. The next words He hath four Children by his servant Agnes cannot be actionable for although she were once his servant yet she might be afterwards his Wife 3. The Plaintiff hath averred in his Declaration that he hath lived continently and then he cannot have children by his servant Agnes and then the words are not actionable And 4. For saying he hath killed them is not actionable and upon this he cited one Snags Case Co. lib. 4. who brought an Action for these words Thou hast killed thy Wife and it appeared by the Declaration that his Wife was alive and therefore it was resolved that the words were not actionable And as to the last exception it was said by Ashley Serjeant on the other side that albeit the Plaintiff hath averred in his Declaration that he lived continently and so in a manner confessed that he had no children this is but for the aggravation of the offence of the Defendant as when an Action is brought for calling one Thiefe he avers that he lived honestly and yet the Action will lye But I confesse if the Plaintiff had averred that he never had any child then it would be like to Snags Case Co. lib. 4. 16. a. and that the Action would not lye But in Anne Davyes Case there she averred that she was a Virgin of good fame and frée from all suspition of incontinency and the Defendant sayd that a Grocer had got her with child Owen Wards Case in Cook Book of Entries hath the same Declaration as this and it was the President thereof But Jermy moved another exception upon these words he hath killed them and doth not say Felony which is not good for he migt kill them in execution of Iustice which is justifiable Trin. 2. Jac. Willers Case in the Court it was adjudged that for these words Thou hast stollen a peece and I will charge thee with Felony an Action lies not because a péece is a word of doubtfull signification And Trin. 20. Jac. It was resolved that these words Agnes Knight is a Witch were not Actinable but it was answered of the other side that upon the whole frame of these words they cannot be intended but to be spoken malitiously and there can be no pretencâ— of lawfull killing of children Doderidge all the words joyned together are actionable but these words only considered he hath four children by his servant Agnes are not Actionable and albeit he doth not alledge it felony yet this is a scandall and good cause of Action Jones agreed and yet he conceived that for saying singly that one hath a Bastard an Action lies not albeit the having of a Bastard be punishable by the Statute of 18. Eliz. cap. 1. But by him he hath killed the King shall be taken in pejori sensu otherwise it is if the words of themselves be indifferent as Pope and this word shall not be the rather taken in pejori sensu having relation to all the sentence for the contrariety of the Declaration it seems to me that the Declaration is good enough but if one saith Thou hast killed J. S. where in truth there never was such a man it is not actionable But here the Averment of the Plaintiff is more generall Ubi re vera he is not guilâ—y or incontinent which is a general allegation but if he had averred ubi re vera he never had any child there peradventure the Action would not lye but here it will Whitlock Justice agreed and he sayd that the first words hath had four children by his Maid Agnes are actionable and for the other matters they agreed whereby Iudgement was given for the Plaintiff The same Term in the same Court THis Term in the Common-place Sargeant Hendon cited this Case to be adjudged 4. Jac. A Copy-holder made a Lease for yeares by License and the Lessee dyed that this Lease shall not be accounted assets in the hands of the Excecutors neither shall it be extended But the Case was denyed by Iustice Hutton and others and that an Ejectione firmae lies of such a Lease But he said that if a Copy-holder makes a Lease for yeares by License of the Lord and dyes without Heire the years not expired the Lord notwithstanding this may enter for the Estate out of which this Lease was derived is determined But Yelverton Iustice was contra because this License shall be taken as a confirmation of the Lord and therefore the Lease shall be good against him and there as I heard it was argued by all that if a Copy-holder makes a Lease for a yeare this is a Lease by the Common-Law and not customary and shall be counted assets in the hands of the Executors of the Lessée The same Term in the Kings Bench. NOta upon evidence to a Iury between Buffield and Byburo the Case appeared to be this upon a Devise with these words I will and devise that A. and B. my Feoffees shall stand seised and be seised to and of Iohn Callis for life the remainder c. And the truth was that he had no Feoffees and the opinion of the whole Court nullo contradicente was that this is a good Devise to John Callis by reason of the intention 38. H. 8. Bro. Devis 48. 15. Eliz. Dyer 323. were urged for the proofe of it and by Doderidge the Case of 15. Eliz. is more strong then our Case is Linyen made a Feoffment to his own use and afterwards devised that his Feoffees should be seised to the use of his Daughter A. who in truth was a Bastard and yet this is a good Devise of the Land by intention for by no possibility they can be seised to his use Mich. 2. Car. Lemasons and Dicksons Case in the Kings Bench. Trin. 2. Car. Roll. 1365. THe Case was this One Parcevall Sherwood was indebted to Susan Clarke who brought an Action of debt by a Bill of Middlesex which is in nature of a Writ of Trespas against him and Sherwood upon a mean Proces was arrested by the Defendant being Bayliff of the Liberty of White-Chappel and being in his custody he suffered him to escape Afterwards Susan Clarke made the Plaintiff her Executor and dyed and then the Plaintiff brought an Action upon the Case against the Defendant upon the said escape and upon issue joyned it was found for the Plaintiff And Calthrop of Councel with the Plaintiff moved that the Action will well lye for the Testator himselfe might have had either an Action of Debt or upon the case upon the sayd Escape and therefore the Executor may have the same remedy and that by the equity of the Statute of 4. E. 3. cap. 7. which gives an Action to Executors pro bonis asportatis in vita Testatoris And by 14. H. 7. 17. this Statute shall be taken by equity and Administrators who are in the same mischiefe shall have the same remedy albeit they