words in Latin and this pursuant to the Statute of E. 3. which requires that their legal Proceedings should be in Latin and if the words were not so Elegant yet they would serve in an Information c. where 't is rather chosen to put in words agreeable to the phrase of the Law than to Tully's Orations And so the Court Wild being absent delivered their Opinions for the King but took time to set the Fine and immediately Committed the Defendant who before was upon Bail as the course is when Judgment is given altho' no Fine was set Anonymus IT was said by the Court upon an Indictment against one for Refusing to take an Apprentice bound by the Churchwardens and a Justice of Peace according to 43 Eliz. that in such case a man cannot be Compelled to accept an Apprentice Pagett versus Dr. Vossius TRin. 26 Car. 2. Rot. 583. In an Ejectment upon a Special Verdict the Case appeared to be thus Dr. Brown by Will Devised certain Lands to Dr. Vossius the Defendant a Dutchman during his Exile from his Country and if it should please God to restore him to his Country or that he should dye that then the Lands should go to the Lady Mary Heveningham in Fee who was the Lessor of the Plaintiff It was found that at the time of making the Will and the Death of Dr. Brown there was War between England and the States General and that the Doctor was fallen into Displeasure with the States and that they had taken a Pension from him of 140 l per annum and that by reason thereof he came over But did not find that he was Exiled by any Act of State and that the War was now ceased and that the Doctor might Return if he pleased but it did not find that they had restored him to his Pension c. After divers Arguments on both Sides this Term Judgment was given for the Defendant by the whole Court For they said there was a Voluntary and Compulsary Exile and in regard he was not Exiled by any Publick Edict the Will must be understood of a voluntary absence from his Country And the Jury found that those Matters which drove him away did still continue viz. The depriving him of his Pension Nota Exilium is a word known in our Law viz. When Villains by hard Usage are constrained to depart from the Mannor And if it be Objected That this durante Exilio is a void Limitation as being of unknown sense in our Law 't is still against the Lessor of the Plaintiff and then she cannot claim until the Doctor 's death and in the mean time the Discent must be to the Heir at Law Exilium quasi ex solo that is as if it had been said During his absence from his Country The King versus Plume HE was Indicted upon the Statute of the 5th of the Queen for that he had set up used and exercised Artem Mysterium sive Manual occupationem Pomarii Anglicè of a Fruiterer being a Trade Mystery or Manual occupation used in this Kingdom the 12th day of January Anno Eliz. 5. in which Trade the said Plume was not brought up by the space of Seven years c. And to this the Defendant Demurred For that it hath been held that the Statute extends not to every Trade but to such an one as requires Art and Skill and therefore not to a Hemp-dresser as in the 1 Cro. so in 2 Bulstrode 188. nor to a Pippinmonger as in 1 Roll's Rep. 10. And so a Gardiner hath been Resolved not to be within the Act in the 14th of this King The Indictment was for the Trade of a Barber but no Judgment given but others said That in that Case Judgment was for the King On the other side it was said That the Question here is not of those which sell Apples in Stalls but the Trade of a Fruiterer is well known and they are Incorporated in London and there requires much Skill in Sorting of Fruit and in judging the durableness thereof But the Court inclined for the Defendant But being informed by the Counsel for the King that there were many Presidents it was adjourned Postea Harrington's Case HArrington was again brought up and the Court fined him a Thousand pounds and awarded that he should recant the words in such words as the Court should direct and to find Sureties for his Good behaviour for seven years after which he produced a Writ of Error returnable before the Lords then Sitting in Parliament and prayed that it might be allowed and that he might be admitted to Bayl. The Court said that they allowed the Writ but would advise whether they should Bayl him or no and so remanded him to Prison Anonymus IN an Assault Battery and Wounding the Plaintiff after Verdict moved the Court for an encrease of Damages the Court said they could not do it if the word Maihemavit was not in the Declaration Clarkes Case UPon an Habeas Corpus to the Mayor c. of London a Custom was returned to Disfranchise and commit a Freeman for speaking opprobrions words of an Alderman The Court said they might Fine in such Case but the other Custom would not hold notwithstanding the Act of Confirmation of their Customs Termino Paschae Anno 30 Car. II. In Banco Regis Anonymus IN Trespass of Battery by Baron and Feme for beating of them both Vpon Not guilty the Verdict was for so much Damage for beating the Husband and so much for beating of the Wife The Court said upon a motion to Arrest the Judgment that the Plaintiff might release the Damages for beating of himself and take Judgment for the other The King versus Mead. AN Information was brought against him upon the Statute of 17 Car. 2. which restrains Non conformist Ministers from Inhabiting within five miles of any City Town Corporate or Burrough that sends Burgesses to Parliament c. After Verdict for the King it was moved in Arrest of Judgment First That the place of his Habitation was alledged to be within five miles of London but it was said that London sent Burgesses to Parliament which not being in the Record the Judges were not to take knowledg of Sed non allocatur For the last words of sending Burgesses to Parliament shall be referred only to Burroughs and therefore the Act restrains them from dwelling in Corporations c. tho' such Corporations as send no Burgesses Secondly It is alledged that the Town where the Defendant dwells is within five miles but not that the place of his Habitation in that Town was so and therefore may he intended to be more remote Thirdly There wants vi Armis Sed non allocatur Sed Judicium pro Rege Termino Sanctae Trinitatis Anno 30 Car. II. In Banco Regis MEmorandum This Term Sir Richard Rainsford was removed and Sir William Scroggs one of the Justices of the Common Pleas was made Lord Chief Justice of the Kings Bench.
because the Intent of the parties appears that it should be so There 's no great difference between the Construction of a Deed of Uses and a Will 13 H. 7. The Wife takes an Estate for Life by Implication where the Land is devised to the eldest Son after her decease Manning and Andrew's Case in 1 Leon. 259. The Reason of these Cases is the fulfilling of the Intention of the Parties and here this Limitation cannot be made good by way of a Future Use nor by any other way but only by creating of an Estate for Life in Michael the Father by Implication and this is according to the nature of a Covenant to stand seiz'd For the Use is not to pass out of the Covenantor till the proper time for the subsequent Estate to commence As to my Lord Paget's Case 't was his Intention to have the Use during his Life And my Lord Coke was certainly very well satisfied with the Resolution in Fenwick and Mitford's Case when he wrote his Institutes for he Argued before to the contrary as appears by the Report of that Case in Moor. Rainsford Justice to the same Intent If no Use rises immediately to Ralph yet if a Use rises by the Deed so that he has the Land any way be it by discent from his Father 't is within the Conclusion of the Verdict By the scope of the Conveyance it appears that it was intended that Robert should never have his Land till Twelve hundred Pound was paid for the provision of younger Children so that if Robert should have it it would be against the Intention of Michael There are two Reasons and Grounds in Law by which we may make this Deed agree with the Intention of the Parties First Because it is in the Case of an Estate Tail ubi voluntas donatoris observari debet Secondly It is in a Conveyance setled by way of Use and in Cases of Uses the Intention of the parties ought to be pursued And this is in Case of a Use that rises by Covenant to stand seiz'd which makes the Case the stronger And I conceive this is not a void Limitation but such an one as gives an Estate to Ralph In speaking to which I shall observe what my Lord Coke in the 1 Inst 23. says viz. That so much of the Use as the Owner of the Land does not dispose of remains in him c. and so in Cownden and Clark's Case in Hob. 30. And this is the Reason of Bingham's Case 1 Co. 91. Now here when Michael Covenanted to stand seiz'd to the Vse of his Heirs Male on the Body of his second Wife begotten I conceive he shall retain the Land as parcel of his ancient Vse during his Life for non est Haeres viventis according to Archer's Case 1 Co. And that Michael shall retain an Estate for Life is prov'd by my Lord Paget's Case 1 Co. 154. Dyer 310. N. 79. 1 Co. Chudleigh's Case 129. 2 Rolls 788. 21 H. 7. 18. From my Lord Paget's Case upon which I shall rely and the other Cases it appears that were there 's a Limitation to one after the death of another the Covenantor shall retain the Land during the Life of the other and here in our Case this Estate not taking effect till after the Death of Michael he shall retain the Estate and shall be Tenant for Life of the old Vse Now the Question is Whether Ralph shall take by Discent or Purchase And I conceive this Estate for Life with the Remainder in Tail makes but one Estate Tail in Michael and that he becomes Tenant in Tail and so Ralph shall take as Heir in Tail I shall not trouble my self whether Ralph may take here as a Purchaser because in Cownden and Clark's Case in Hob. it is Resolved that he cannot take as Heir Male of the Body by Purchase because all the words are not verified in him for he is not Heir I shall rely upon the First Point That here is an Estate Tail executed in Michael For when an Estate for Life is in the Auncestor by way of Retainer and an Estate is afterwards limited to his Heirs this is within the Rule put in Shelley's Case in 1 Co. where the Auncestor takes an Estate of Freehold and by the same Conveyance an Estate is limited to his Heirs Mediately or Immediately they are Words of Limitation and not of Purchase because the Heir is part of his Father Our Case is stronger that Fenwick and Mitfords Case It s true the same Reason for that Case is not given by Anderson and More which is given by my Lord Coke More 437. There the Reason is because the Limitation to the right Heirs is merely void here Michael hath an Estate in Tail of the ancient Use therefore 't is not necessary for the Law to create an Estate for Life Obj. That this cannot be an Estate Tail executed in Michael because the Estate for Life is not by the same Limitation but by Construction of Law But my Lord Coke says in Fenwick and Mitfords Case 1 Inst 22. b. that there is no difference where the Estate is created by Law and where by the Deed. 1 Anderson 259. and the Law retaining an Estate in Michael for Life our Case is the same as if the Estate had been limited to him with the Remainder to his Heirs Male begotten on his second Wife which would be an Estate Tail executed in Michael and would have discended to Ralph Twisden Justice for the Plaintiff I hold there 's no Use raised to Ralph by this Deed. We are here in the construction of a Deed and not of a Will It may be an Estate should be raised in such a case by a Will altho' my Lord Hobart is of a contrary Opinion I agree the Case of Hodgkinson and Wood Cro. Car. 23. but it cannot be argued from thence that it shall be so in a Deed for a Devise is not to take effect till after the Death of the Devisor and then 't is apparent that he is Heir Male of his Body It hath been agreed that Heirs Male of the Body are words of purchase It is plain that Ralph cannot take as Special Heir unless by Purchase and that he cannot do because he who shall take by virtue of such a Limitation ought to be Heir as well as Issue Male and Ralph here cannot take by vertue of the Statute de Donis Conditionalibis because none can take as Special Heir but where his Ancestor took before and therefore this Limitation is utterly void To make this Limitation good divers ways have been urged First That this Deed has an operation by way of returning of the Use and it has been compared to my Lord Pagets Case which differs from it here cannot be any part of the old Use in Michael for if he hath an Estate for Life it ought to be a new Use It cannot be a returning Use for the Limitation to the Heirs Male of the Body
Berwick is part of Scotland and bound by our Acts of Parliament because Conquered in Edward the Fourth's time But the course is to name it expresly because 't is out of the Realm and not like to Wales where the Trials in such Cases shall be out of the prochein County 19 Hen. 6.12 for that is a Member of England Vid. 7 Co. Calvin's Case But two Presidents being shewn where the Trials were as it is here and one of them affirmed in a Writ of Error also the Case in Rolls tit Trial 597. A Writ of Error was brought to Reverse a Judgment given in Ireland and an Error in Fact was assigned and tryed in a County next to Ireland The Court Ruled the Venire to be well awarded Twisden said The Reason why an Ejectment would not lye of Lands in Jamaica or any of the Kings foreign Territories was Because the Courts here could not command them to do Execution there for they have no Sheriffs This Case having remained two or three Terms since the Postea was Returned and no Continuances Entred one of the Plaintiffs died and it was doubted whether Judgment could be now Entred And the Secondary said That they did Enter up Judgments two Terms after the Day in Bank as at the Day in Bank without any Continuances And of this Matter the Court would be Advised Postea Anonymus IF one upon Complaint to two Justices 1 Cro. Prigeon's Case be Ordered to keep a Bastard Child and this upon an Appeal to the Sessions is revoked that Person is absolutely discharged and unless a Father can be found the Court said the Justices of Peace must keep it themselves The Earl of Peterborough versus Sir John Mordant IN an Action upon the Statute de Scandalis Magnatum for speaking these Words of the Plaintiff I do not know but my Lord of Peterborough sent Gybbs to take my Purse After Judgment by Default and a Writ of Enquiry of Damages returned it was moved in Arrest of Judgment that no Action would lye for these Words First He doth not positively charge him with it Again The Words do not import a Felonious taking Hob. 326. Mason's Case I charge him with Felony for taking Money out of the Pocket of H. Stacie adjudged not Actionable And in 1 Cro. 312. Thou didst set upon me and take my Purse go before a Justice and I will charge you with Felony It was held there that no Action would lye But the Court gave Iudgment for the Plaintiff As to the first it was held as much as a direct Affirmation for otherwise one might slander another and by such a slight Evasion escape an Action Twisden said He knew these Words adjudged Actionable He hides himself for Debt and for ought I know is a Bankrupt And for the Words the Court said Three was difference between an Action grounded upon the Statute de Scandalis Magnatum and a Common Action of Slander The Chief Justice said The Words in the one case shall be taken in mitiori sensu and in the other in the worst sense against the Speaker that the Honour of such Great Persons may be preserved More 55. The Earl of Leicester had Judgment for these words My Lord of Leicester is a Cruel Man an Oppressor and an Enemy to Reformation Leon. 33. The Lord Abergavenny sued for these words My Lord Abergavenny sent for us and put some of us into the Stocks some to the Coal-house and some to the Prison in his House called Little Ease And Recovered Vide Crompton's Jurisdiction of Courts 13. and Leonard 336. Anonymus AN Indictment was Compertum fuit per Sacramentum duodecim proborum legalium hominum c. and quashed because it was not jurat ' onerat ' And the Clerk of the Crown-Office Informed the Court that that was always the Course also it must be Adtunc ibidem jurat ' where the Caption is recited to be taken Williams versus Gwyn ERror to Reverse a Judgment given in Dower in the Grand Sessions in Wales It appeared by the Record that the Tenant appeared upon the Summons Returned and Day was given over adtunc venit per Attornatum nihil dicit in barram Whereupon Consideratum est quod tertia pars terr' tenemen ' capiatur in man ' Domini Regis and Day was given ad audiend ' Judicium at which Day Iudgment was given quod recuperet It was Assigned for Error that the Court here had awarded a Petit Cape and yet the Defendant appeared whereas they should have given Iudgment upon the Nient dedire for a Petit Cape is always upon default after appearance and only to answer the Default The Grand Cape is before appearance to answer the Default and the Demand Vet. N. B. 97. So it was said the Court had erred in Judgment and tho' it were in advantage of the Tenant by the delay yet not being by his Prier as an Essoign granted where none ought to be is not Error but the act of the Court as if they should Enter a Misericordia for a Capiatur it were Erroneous But the Court answered That the reason of that was Because it is parcel of the Judgment and the King should lose his Fine But this was only the awarding of Process more than should be and in advantage of the Tenant wherefore they resolved that they could not Reverse it for Error And Twisden said Admitting it were Erroneous they might then give Iudgment in this Court Anonymus A Prohibition was prayed to the Arches for Libelling against one there for calling Whore and Baud because they were but words of Heat also the Party lived in the Diocess of London so against 23 H. 8. to Cite him there But the Court would not grant it for though formerly there hath been divers Opinions touching these words yet Twisden said ever since 8 Car. the Law hath been taken that they may punish such words pro reformatione morum And for the other it appeared Sentence was given and that it was too late to pray a Prohibition when it appears they have Iurisdiction of the Cause as the Superiour Court and he that would have the benefit of the Statute against citing out of the Diocess must come before Sentence 1 Cro. Anonymus FInch Solicitor moved for a Prohibition to the Ecclesiastical Court to stay a Suit for Tythes of Hopps commenced there by the Vicar upon a Suggestion that they had paid for all Tythe Hopps so much an Acre to the Parson time out of mind But it was denied for there could be no such Composition time out of mind Hopps not being known in England until Queen Elizabeths time for then they were first brought out of Holland though Beer is mentioned in a Statute in Henry the Fourth's time But it was said by the Court That perhaps the Vicaridge was Endowed time out of mind of the small Tythes of which nature Hopps were Then the prescription of paying of Modus to
upon that Attainder was penned as amply as this of 12 Car. and the Case of Warner and Harding Latch 25. is very like this W. Shelley enfeoffed divers to the use of himself for Life and afterwards to divers others upon Condition that if a Ring were delivered by the said William Shelley declaring that he intended those uses should be void that then c. it was resolved that nothing was forfeited but during his Life Rainsford I shall speak nothing to the Fraud because that is a pure matter of Fact which is to be found by the Jury and cannot in any Case be presumed by the Court. I am of Opinion that the Judgment ought to be affirmed The power of altering the Trusts reserved by the first Proviso is inseparable from the person of Simon Maine for it is to be by his Will in Moor 193. the Lord Pagetts Case It is resolved that inseparable Powers are not forfeited upon like words as are in this Act and so the second Proviso limits to him a double Power First Of revoking the old Trusts Secondly Of limiting new But this is to be done by Writing under his Hand and Seal in the presence of two Witnesses so the performance of this also is personal The D. of Norfolks Case is the very same unless for that it is there under his proper Hand and Seal and here under his Hand and Seal which certainly is all one But admitting this Power were forfeited yet it is not found that ever it was executed after it come to the King which must be before any Estate could come to the King therefore in Englefields Case it was found that a Ring was tendred in the behalf of the Queen And whereas it was objected That he had jus disponendi and therefore might Forfeit as a Man shall a Term which he hath in right of his Wife as Dame Hale's Case in Plowden is resolved I answer That here he hath not jus disponendi but rather potestatem disponendi but that is qualified and to be executed by certain Circumstances which must be performed to give it effect Twisden As to the Fraud I cannot see how the Jury could have found this fraudulent Settlement made to prevent a Forfeiture enacted by Parliament 20 years after which surely could not be without the Spirit of Prophecy I am of the same Opinion as to the matter with my two Brothers That Simon Maine had only a Trust in him during his own Life and if he had brought a Bill in Equity he could have had the Estate executed no further and therefore can Forfeit no more by this Act and it is not always that a Man that hath power over Land hath a Trust as we may sée in Cranmers Case Dier 308 309. there were as large words in the Act of his Attainder as here Indeed the Argument in Englefields Case 7 Co. rules this for if a Trust had béen implied in the power of Revocation they néeded to have argued that it should have been forfeited as a Condition so the D. of Norfolks Case for tho' the word Use is in that Act and not Trust as in this yet it makes no difference for an Use was then the same with what a Trust is now and tho' the word Power had béen in this Act yet there should have béen no Forfeiture in this case because the Execution of it is so personal and individual Neither is there found that ever there was any Execution and at most the Forfeiture could only be of what was in Simon Maine neither can Smith Execute it by virtue of his Grant from the King for the Kings Patent conveys nothing by implication and shall never work to a double intent Hale Chief Justice of the same Opinion First Crooke is a good Lessor for the other Trustees disagréement makes the Estate wholly his Secondly For the Circumstances of Fraud they are not material to be considered Thirdly The Trust is wholly disposed of after the Death of Simon Main so that he had nothing but during his Life Fourthly Then what is operated by the Attainder Why the Trust during Life is forfeited Vid. the E. of Somerset's Case Hob. 214. 2 Cro. 512. But then this Trust must have béen executed by the Court of Revenue 'T is true the Act doth not only give the Trust but the Term it self to the King that is during the Life of Simon Maine so that by this Act so much of the Term is drawn out of the Trustees as served the Trust which S. M. had but leaves the residue of the Term to serve the other Trusts so that the possibility of the Term returns to the Trustees after the Death of S. M. and this appears by the body of the Act. Also this appears by the saving in the Act. The first saving which saves all the Conveyances made by the Feoffor before the 29 of Sept. 1659. indeed might not help because Conveyances made to the Wives Children or Heirs are therein excepted But there the other Proviso saves the Right Interest c. of all persons whatsoever doth in Law and Equity not derived form the offenders since 25 Mar. 1646. and therein the Interest of Wife or Children and all are saved now this Estate was created before viz. 1643. I come now to the Provisoes The first Proviso determins nothing till the time of Simon Maine's Death and consequently this can revest no more to M. than he had before For the Condition is in expectation till he have a Son living at the time of his Death why then by this there comes nothing to S.M. so much as in point of Execution during his Life By his Will he might have limitted new Uses but he made none and 't is personal No other Man can make his Will Why then all stands as it did and nothing is made void till the time of his Death and then all is immediately executed to the Son by force of the first Conveyance But if the Proviso had béen That if S.M. had a Son there all had revested in S. M. and might have béen forfeited The last Proviso doth not create a Trust to him for if he had not béen Attainted the Trust should not have gon to his Executors c. No it creates a personal power of fetching back the former and declaring new Trusts observing the circumstances upon the same reason that this Estate can be forfeited a bare Executor I mean without a Devise of the residue might forfeit his Estate this is a Power yea and 't is a manacled Power it is a kind of Trust that he may revoke The D. of Norfolks Case is the same with this So Harding and Warners Case which was adjudged in C. Banco tho' there there were two to two and it was confessed by the Kings Attorney in Scaccario and the Kings Attorney doth not use to confess Judgment in Cases of great moment without consultation with the Judges This power was not nor could be passed to the
Note directed to the Defendant whereby he required the Defendant to pay him who upon view of the Note in Consideration that the Plaintiff would accept of his Promise and forbear him a Fortnight promised to pay him the Money There after Verdict for the Plaintiff Judgment was Arrested because that was held no Consideration Sed non allocatur For Hale said When Assumpsits grew first into practice they used to set out the Matter at large viz. in such a Case as this Quod mutuo aggreatum fuit inter eos c. and they should be discharged one against the other but since it hath been the way to declare more concisely And upon the whole Matter here it appears that the Defendant agreed to this Transferring of the Debt of J. S. to the Plaintiff and that it was agreed that he should be discharged against J. S. And he said that the Case of Davison and Haslip hoc Termino ante was to the same effect And for Clipsham's Case that was said to be good Law for there it did not appear that the Defendant was at all Indebted to him that sent the Note Sir William Hicks's Case DEbt was brought against him by the Name of Sir William Hicks Knight and Baronet He pleaded in Abatement that he was never Knighted The Plaintiff moved that he might Amend an that he had put in Bail by the Name of Knight and Baronet so that he was concluded to alledge this Matter which the Court agreed if it were so But it was found to be Entred for William Hicks Baronet only So they said they could not permit any Amendment but the Plaintiff must of necessity Arrest him over again Fisher versus Batten A Bill was Exhibited in the Dutchy Court to be relieved against the Forfeiture of a Mortgage of Lands lying within the County of Lancaster The Defendant prayed a Prohibition Surmizing that the Lands in question were not the Kings Lands or holden of him and therefore he ought not to Answer in the Dutchy Court And the Court appointed to hear Counsel on both Sides whether or no this Prohibition were to be granted And it was Argued by Sir William Jones for the Prohibition That a Court of Equity must begin by Prescription or Act of Parliament That there can be no Prescription in this Case for both the Dutchy and County Palatine of Lancaster began within time of Memory Henry Father of John of Gaunt was the first Duke of Lancaster and he was made so in Edward the Third's time and then Lancaster was made a County Palatine The Act of Parliament upon which this Case must depend is that of 1 Ed. 4. which takes notice that the Dutchy and County Palatine of Lancaster were forfeited to the Crown by the Attainder of H. 6. and Enacts That they shall be separate and distinguished from other Inheritances of the Crown and appoints a Chancellor for the County Palatine and a Chancellor for the Dutchy and that each should have his Seal so that the Chancellor of the Dutchy is not to intermeddle in the County Palatine which hath a Chancellor of its own for Matters there Counties Palatine had their Original from a Politick Reason and Lancaster Durham and Chester were made so probably because they were adjacent to Enemies Countries viz. the two first to Scotland and Chester to Wales so that the Inhabitants having Administration of Justice at home and not being obliged to attend other Courts those parts should not be disfurnished of Inhabitants that might secure the Country from Incursions 'T is true of a long time the Chancellorship both of County and Dutchy have been in one Person but 't is the same thing as if there were two for the several Capacities remain distinct in him The first Patent that made it a County Palatine Ordained that it should have Jura regalia ad Comitatum Palatinum pertinen ' adeo libere integre sicut Comes Cestriae Com. 215. infra eundem Comitat ' Cestriae dignoscitur obtinere c. So that by that the Jurisdiction ought to be exercised within the County They have shewn indeed a multitude of Presidents but I can hear but of One for the first Fifty years after 1 Edw. 4. most of the other are of Personal things and of the rest divers began in the County Palatine and were transmitted to the Dutchy Court As they may send Causes out of the Courts there to be Argued in the Kings Bench but doubtful whether the Court here can give Judgment They have very few Presidents of Causes which commenced Originally in the Dutchy Court which is but a Court of Revenue 4 Inst The Court of Requests had a multitude of Presidents but could not thereby gain it self any Jurisdiction 4 Inst 97. Holt's Case Hob. 77. A Bill was Exhibited to be relieved against the Penalty of a Bond which concerned an Extent of Lands within the County Palantine and a Prohibition was granted for the Dutchy Court is said there to have nothing to do but with the Kings Land and his Revenue Vid. Rolls accordingly Weston contra We cannot pretend to a Court of Equity by Prescription but we have Presidents of above Two hundred years last past as well of Bills retained which commenced Originally here as of those transmitted and that of Transmission is agreed on the other side which proves the Jurisdiction For if a Certiorari or Corpus cum causa should go out of the Kings-Bench Conusans of Pleas might be demanded and so to stop the Removing of the Cause out of the Inferiour Court We maintain our Jurisdiction upon the Statute of 1 Ed. 4. before which the County Palatine and Dutchy of Lancaster were distinct as they were 1 H. 4. by which Act they were both severed from the Possessions of the Crown But now 1 Ed. 4. makes one Body of these distinct Bodies and gives a superiority to the Dutchy over the County Palatine for that is annexed unto and made parcel of the Dutchy as the supream Name of Corporation The Words of the Act are That our Liege and Sovereign Lord King Edward the Fourth and his Heirs have as parcel of the Dutchy the County of Lancaster and County Palatine and there is a Chancellor and Seal appointed for the County Palatine and a Seal also for the Dutchy and a Chancellor there for the keeping thereof and Officers and Counsellors for the Guidance and Governance of the same Dutchy and of the particular Officers Ministers Tenants and Inhabitants thereof So that the Act having Constituted a Chancellor indefinitely over the Dutchy and not circumscribing his Power it is not reason to exempt any part of the Dutchy and that the County is by force of this Act. In the 4 Inst 119. it is said that seeing there hath been time out of mind a Chancellor of the Exchequer that there should be also in the Exchequer a Court of Equity So the Book of the 2d of H. 8. and Rolls Tit. Prohibition to the
Sister the Dutchess of Cleaveland to whose Son this Daughter being about 8 years old was contracted pretending that Sir Henry VVood by word revoked this disposition of the Guardianship Sued in the Prerogative Court to have this nuncupative Codicil proved and the Court granted a Prohibition for they are not to prove a VVill concerning the Guardianship of a Child which is a thing conusable here and to be judged whether it be devised pursuant to the Statute And Hale said that they may prove a VVill which contains Goods and Lands tho' formerly a Prohibition used to go quoad the Lands Vid. 1 Cro. Netter and Percivalls Case Prior versus .... ERror was brought of a Judgment in this Court into the Exchequer Chamber and Error in fact was then assigned and the Court being there of Opinion that Error in fact could not be assigned there they affirmed the Judgment upon which the Record with the Affirmation was remitted hither and a Writ of Error was brought here coram vobis residen ' as is usual for Error in fact It was pray'd that upon putting in not Bail this new Writ of Error might be a Supersedeas to the Execution But the Court held that this Writ was not to be allowed in this case for the Judgment given in this Court being affirmed in the Exchequer Chamber transit in rem judicatam there and a Writ of Error cannot be brought here upon a Judgment there and 't is always the course in Writs of Error to recite all the proceedings that have been in the matter as if a Judgment be removed hither by Error out of the Common Pleas and here affirmed and then brought into Parliament the last Writ must recite both the Judgment in Communi Banco and the Affirmation here And whereas this Writ goes by the Judgment into the Exchequer Chamber and mentions only the Judgment here it must therefore be quashed And it is the course if a Writ of Error be brought here upon Error in fact of a Judgment here that the Writ should be allowed in Court And the Court said they would allow none in this Case Throwers Case HE was indicted at the Sessions of the Peace at Ipswich for Stopping communem viam pedestrem ad Ecclesiam de Witby It was removed hither by Certiorari and the Court were moved to quash it for it was objected That an Indictent would not lye for a Nusans in a Church-path but Suit might be in the Ecclesiastical Court. Besides the Damage is private and concerns only the Parishioners Where there is a foot way to a Common every Commoner may bring his Action if it be stoped but in such case there can be no Indictment Hale said if this were alledged to be communis via pedestris ad Ecclesiam pro parochianis the Indictment would not be good for then the Nusans would extend no further than the Parishioners for which they have their particular Suits but for ought appears this is a common foot way and the Church is only the Terminus ad quem and it may lead further the Church being expressed only to ascertain it and 't is laid ad commune nocumentum wherefore the Rule was that he should Plead to it The Lady Prettymans Case A Judgment was had in a Scire facias brought against her upon a former Judgment upon two Nihils returned And the Court was moved to set it aside for that it was alledged that before the Scire facias brought she was married to Sir John Pretty-man and that it was brought against her as sole by contrivance between the Plaintiff and her Husband to oppress her and lay her up in Prison and it was shewn that the Plaintiff knew of the Marriage for he being an Attorney had prosecuted an other Action before the return of the Scire facias against her and her Husband and that she could not help her self by Error or Audita Querela because her Husband would Release The Court said they might set aside the Judgment for the misdemeanour of the Plaintiff but because they were informed that this Marriage was under debate in the Ecclesiastical Court and near to a Sentence they suspended making any Rule in this while that was determined Twisden said he had a Case from my Lord Keeling where a Feme Covert Infant levied a Fine and her Friends got a VVrit of Error in her Husbands and her name that the Court would not suffer the Husband to Release But Hale said he could not see how that could be avoided but he had known that in such case the Court would not permit the Husband to disavow the Guardian which they admitted for the VVife How 's Case HE was indicted of an Assault Battery and VVounding of Thomas Masters Esquire and Found Guilty at the Assizes in Gloucestershire Now the Attorney General moved the Court to set a Fine and such an one as might be exemplary according to the demerit of the Fact for he shewed that a great part of the Gentry of Gloucester amongst which were How and Masters being assembled at Circencester about the Election of a Burgess for that Town How without any provocation struck Masters on the Cheek with the end of his Cane which had an Iron pike at it and that if Masters had not governed himself with much moderation and prudence it had in all probability engaged the whole Assembly in a dangerous quarrel they being both Men of great Estates and Quality in the Country And the Attorney said there was nothing more necessary than that somewhat of a limited Starchamber should be exercised in this Court for the due punishment of such enormous Crimes as these Hale said that they were much discouraged from setting Fines for the new Act binds them to estreat them into the Exchequer and then it was well known whether they went meaning to such as farmed them from the King by Patent The Attorney replied that the legality of such Patents was to be questioned and that one which was granted to the Earl of Berkshire 7 Co. Penal Statutes was now like to be resumed and it was fit it should seeing it was like to prove an obstruction to the publick Iustice Then it was doubted whether the Fine could be set How not being present but held it might but the Course is not to hear any thing moved in mitigation of the Fine unless the Party be present and he was fined 500 Marks Ward versus Forth IN Debt upon a Bond the Defendant pleads that he delivered the Deed as an Escrow to J. S. c. hoc paratus est verificare To this it was demurred For that he ought to have concluded issint ninet son fait for this matter amounts to a Special Non est factum and the Plaintiff cannot reply that he delivered it as his Deed absque hoc that he delivered it as an Escrow and so said the Court. Shermans Case BY Certiorari an Order for the keeping of a Bastard Child by the
Tenant in Tail and levying of a Fine there is an Instantaneous Fee in him out of which the new Estate Tail is supposed to be created and that cannot hold bring derived out of a Fee subject to the Forfeiture by Relation but this Point was not touched by the Judges for that they were fully agreed upon the other Point Beasly's Case HE was taken in Execution taken a Recognizance of Bail and he made it appear to the Court that he never acknowledged the Recognizance but was personated by another and thereupon it was moved that the Bail might be vacated and he discharged as was done in Cottons Case 2 Cro. 256. But the Court said since 21 Jac. cap. 26. by which this Offence is made Felony without Clergy it is not convenient to vacate it until the Offender is convicted and so it was done 22 Car. 2. in Spicers Case Wherefore it was ordered that Beasly should bring the Money into Court an be let at large to prosecute the Offender Twisden said it must be tried in Middlesex tho' the Bayl was taken at a Judges Chamber in London because filed here and the Entry is venit coram Domingo Rege c. So it differs from a Recognizance acknowledged before my Lord Hobart upon 23 H. 8. at his Chamber and Recorded in Middlesex there Scire facias may be either in London or Middlesex Hob. rep If a false Bayl be acknowledged it is not Felony unless it be Filed and so held in Timberly's Case The King versus Humphrey's al. AN Indictment upon the Statute of Maintenance and one only found Guilty and it was moved in Arrest of Judgment that seeing but one was found Guilty it did not maintain the Indictment 2 Rolls 81. several were indicted for using of a Trade and said uterque eor ' usus fuit and held not good Sed non allocatur for that in that case in Rolls the using of the Trade by one cannot be an using by the other But this is an Offence that two may joyn in or it may be several as in a Trespass But then it was alledged that the Maintenance was in quodam placito in Cur ' coram Domino Rege pendent ' and not said where the Kings Bench Sate and this was held fatal Termino Sancti Hillarij Anno 28 29 Car. II. In Banco Regis Jay's Case A Mandamus to restore to his place of a Common Council Man in the Corporation of Eye in Suffolk The Return was that he was amoved for speaking of approbious words of one of the Aldermen viz. That he was a Knave and deserved to be posted for a Knave all over England And it was moved that the Return was insufficient for words are not good cause to remove a Man from his place in the Corporation To which it was said that this not a difranchising of him but only removing him from the Common Council as a person not fit to sit there To which Twisden said that his place there could no more be forfeited than his Freedom for he was chosen thereunto by the Custom of the place And Magna Charta is that a Man shall not be disseised de liberis consuetudinibus But he held that words might be a cause to turn out a Freeman as if they were that the Mayor or the like did burn the Charters of the Town or other words that related to the Duty of his place But in the Case at Bar the words do not appear to have any reference to the Corporation wherefore it was ordered that he should be restored The Court said that my Lord Hale held That Returns of this nature should be sworn tho' of late days it has not been used and that it was so done in Medlecot's Case in Cro. Abram versus Cunningham UPon a Special Verdict the Case appeared to be to this effect A. possessed of a Term makes B. Executor who makes three Executors and dies two of them dies and the Will of B. the Executor not being discovered Administration is granted cum Testamento annexo to D. who grants over the Term. The surviving Execcutor never intermeddles but so soon as he had Notice of the Will Refused before the Ordinary and the Point was Whether the grant of the Term in the mean time was good Saunders to maintain it Argued That to the making of an Executor besides the Will there was requisite that the Executor should assent and if the Executor refuses 't is as much as if there never had been any There is no Book which proves the Acts of an Administrator void where there is a Will and the Executor renounces Greysbrook and Foxe's Case in Plowden's Com. is that after Administration granted the Executor proved the Will And so in 7 E. 4. 14. in Dormer and Clerke's Case it was held that where there was an Executor who after refused and Administration committed the Administrator should have all the Rent belonging to the Term in Reversion which accrued after the death of the Testator If an Executor be a Debtor and refuses the Administrator may Sue him Which was denied by Twisden because a Personal Action once suspended is ever so Dyer 372. If one makes an Executor who dies and never proves the Will Administration shall be granted as upon a dying Intestate suppose an Executor de son tort had Judgment against him Shall not there be Execution upon a Term as Assets in his hands Twisden It hath been Doubted whether there could be an Executor de son tort of a Term or whether he were not a Disseisor And by the same Reason it may be granted in the present Case for at least the Administrator here is an Executor de son tort before the Refusal Levins contra Anciently Bona Intestati capi solebant in manus Regis as appears in Hensloe's Case in the 9 Co. And since the Power of the Ordinary hath been introduced it was only to grant Administration upon a dying Intestate 4 H. 7. Pl. 10. If the Ordinary cites the Executor to prove the Will and he Renounces 't is said he may grant Administration which implies that it cannot be before So 21 H. 8. cap. 5. is to grant Administration c. upon a dying Intestate or refusal of the Executor the Interest of the Executor commences before the Probat In 36 H. 6. 8. an Executor commanded one to take the Goods and after the Executor refused before the Ordinary who committed Administration and the Administrator Sued the person that took the Goods who Iustified by the Executor's Command and it was held good And a Relation shall never make an Act good which was void for defect of Power And the Court seemed strongly of that Opinion But Serjeant Pemberton desiring to Argue it the Court permitted him to speak to it the next Term. Et sic Adjornatur And afterwards it was Argued again and Judgment was given for the Defendant per totam Curiam Dunwell versus Bullocke IN an Action of
is very clear For tho' in M. Portington's Case in 10 Co. 't is said that the word Condition shall not in a Will be taken as a Limitation yet the Current of the Authorities since are otherwise But here the Court held the Condition void for a man cannot be restrained from an Attempt to Alien For non constat what shall be judged an Attempt and how can it be tryed And when the express words are so there shall not be made another sort of Condition than the Will imports And so the Judgment was affirmed Osborn versus Beversham DEbt for Rent incurred at two Half years As to one of them the Defendant pleaded non debet And as to the other Actio non because he says He was ready to pay it at the Day and Place and has been ever since profert in Cur ' the Rent ideo petit Judicium de damnis To which the Plaintiff Demurred For that he did not say quod obtulit for where the Time and Place of Payment is certain Semper paratus is no Plea without an Obtulit For the Defendant it was said That the Plaintiff ought to reply to a Demand 1 Inst 34. 'T is a good Plea for the Heir in Dower to save his Damages to say That he was always ready Rastal's Entries 159. Semper paratus is pleaded without an Obtulit So 1 Rolls 573. no mention made of a Tender But then another Fault was found that it was pleaded in Bar whereas it ought to have been only in Bar of Damages and not to the Action and this was agreed to be fatal But the Court held the Plea to be naught for the other Cause also Anonymus IN an Ejectment upon a Special Verdict the Case was A man Devised his Land to J. S. after the death of his Wife And after Argument the whole Court were of Opinion that J.S. not being Heir to the Devisor there should go no implied Estate to the Wife for an Heir shall not be defeated but by a necessary Implication Anonymus AN Action for Words for that the Defendant said of the Plaintiff He would have given Dean Money to have Robbed Golding's House and he did Rob the House After Verdict it was moved in Arrest of Judgment that the first part of the words import only an Inclination and not that he did give any Money And the words He did Rob the House shall be referred to Dean as the last antecedent and not the Plaintiff But the Court were of Opinion for the Plaintiff as was Adjudged where the words were He lay in wait to Rob. Vid. Cockain's Case in the 1 Cro. and in the 4 Co. And the Court said the Words might be construed That the Plaintiff offered Dean Money and he refusing it that the Plaintiff robbed the House himself Smith versus Tracy THe Case being moved again the Opinion of the whole Court was That the Half-Blood should come in for Distribution upon the new Act For as to the granting of Administration the being of Guardian c. the Half-Blood may be taken nearer of Kin than a more remote Kinsman of the Whole Blood Mo. 635 Ro. Rep. 114. Ante. J 's Case J. Brings his Habeas Corpus The Return was that he was Committed by J. S. J. N. T. K. to whom and others a Commission of Bankrupt was awarded for refusing to answer a Question put to him concerning the Bankrupt's Estate c. and so Commissus fuit in custodia by a Warrant to the Officer Virtute Commissionis praedictae haec est causa captionis seu detentionis c. The Counsel for the Prisoner took three Exceptions to the Return First For that there did not appear a sufficient Authority For the Commission is said to be granted to them and others and then they could not act without the rest for the Return does not express any Quorum c. in the Commission Secondly Instead of Commissus in custodia it ought to be Captus for that is the usual Form For this is as if the Commitment were by the Officer that makes the Return Thirdly Haec est causa captionis seu detentionis is uncertain for it ought to be detentionis And upon the first and last Exception the Prisoner was Discharged by the Court but at the same time was told by the Court That he must answer directly to such Questions as were put to him in order to the discovery of the Bankrupts Estate or else he was liable to be Committed Termino Sancti Hillarij Anno 29 30 Car. II. In Banco Regis Harrington's Case AN Information was preferred against him for that he maliciously and traiterously intending to stir up Sedition and to create a Disturbance between the King and his People upon Discourse of the late Rebellion and those Persons which were Executed at Charing-Cross for the Murder of the late King in praesentia audita quamplurium utteravit propalavit haec verba pernitiosa sequentia viz. Gubernatio nostra consistebat de tribus statibus si eveniret Rebellio in Regno nisi foret Rebellio contra omnes Status non est Rebellio Vpon Not Guilty pleaded he was found Guilty of speaking the precedent Words and Not guilty as to other Words contained in the Information It was moved in Arrest of Judment that Gubernatio signified the Exercise and Administration of the Government and not the State of it which Regimen doth Again That it was Consistebat and so might relate to the Britons or Saxons Time or to the late mutations of the Form of Government amongst us and that to put the words in Latin without an Anglicè was not to be allowed for the Translation might either aggravate or mitigate the Sense And that such a President might be prejudicial as well to the King as the Defendant But those Exceptions finding little weight with the Court his Counsel proceeded to justifie or at least to extenuate the Words alledging That the Relation was so great between the King and People that to raise a Rebellion against the King must also affect the other States and this whether the King be taken as some would have it as one of the Three Estates or as others that the Lords Spiritual and Temporal make two of the Estates and the Commons the third and the King as Chief and Head of all as is the Statute of 1 Eliz. cap. 3. where the Lords and Commons call themselves the Queens Obedient Subjects Representing the Three Estates of the Realm of England and so is the 4 Inst 1. But the Court supposing that the Words did tend to set on Foot that Position upon which the War Levied in 1641. by the Two Houses against the King was grounded were much displeased that the Counsel would pretend to defend them or put any tolerable Sense upon them It was also insisted upon by the King's Counsel and agreed by the Court that the Ancient Presidents and many latter also were to express the
a Maxim in Law and is of mischievous consequence New inventions that are agreeable to Rules of Law I know have been always received and sometimes have proved of excellent use But New inventions that are framed to supplant Principles of Law have been always baffled and rejected The Maxim and Principle of Law that is overturned by this way of Pleading is That a Commoner cannot prescribe to exclude his Lord. This Maxim is one of the foundations of Law and depends upon the reason of the thing and not upon the sound of the word It will be objected that the reason is because ex vi termini the word Common implies that they are to Common with the Lord which they cannot do if the Lord does not feed But I conceive it is not so for it may be as well called a Common without a Solecism where the Tenants feed in common together and the Lord never feeds with them as where he does the true reason is from the nature of the thing for it is supposed the Lord has no need of his Waste and to make non-usage in such a case turn to a Prescription or Custom against him would be most unreasonable Vpon the creation of Mannors the Lords took as much as was for their own Use into their Demesns they distributed as much as was convenient amongst their Tenants what was left was called the Lords Waste which was neglected by the Lord because he had before taken into his Demesns what he had need of It were very hard that non-usage should turn to a Prescription against the Lord because he doth not feed his Wastes when he left them waste before because he had taken as much before as he had occasion to feed It is upon the same reason that the Law will not allow any Prescription for Commoners to exclude and not upon any Argument from the word Common Maxims in Law do not depend upon words but upon foundations of reason it is not for the honour of the Law that it should have its Maxims depend upon sounds and words and not upon solid reason That Commoners cannot prescribe to exclude their Lords if they call their Right by the term of Common but if they call it by another name tho' they claim the same kind of interest they may exclude them If you prescribe to have Communiam excludendo Dom ' that is not good but if you prescribe to have solam separalem Pastur ' in common amongst your selves for Beasts Levant and Couchant you may exclude him Vnder favour to have such a Maxim turned out of Doors and made Vseless there ought to be very good Authority for it such an Invention ought to be examined by strict Rules And the consequence of this Innovation will be great and general for there is no Common in England but this Plea will serve for if the Iury will find it and it is found by experience that many times though the Lord of the Mannor gives very good Evidence a Iury will find against him and if a Lord cannot prove an actual feeding a Iury will certainly incline to find it let the Court direct what they please The King and great Lords that have large Wastes that lie remote from their care seldom made any benefit by feeding and they must not expect hereafter to make any improvements if this pleading be allowed which will be very mischievous whereas if that Maxim of Law were observed and such an unreasonable Claim disallowed in Pleading it will not be in the power of Iuries to exclude Lords out of their own Wastes I conceive in this Case upon the matter disclosed in pleading the Court may discern judicially that this is but an Innovation and an Artifice to disguise a Common and to call it a Sole-pasture to enable the Commoners to prescribe to exclude the Lord which they cannot directly do by the Rules of Law Here first The Soil is the Lords of the Mannor and a parcel of the Mannor and a large quantity in truth 10000 Acres tho' the place assigned is but 100 Acres All the Free-holders and Copy-holders of ancient Houses or parcel of the Mannor are to feed and not to be excluded and in truth of 3 or 4 Messuages in the Town 'T is for Beasts Levant and Couchant 't is with an exception of Hoggs Sheep and Northern Steers which is like the regulation of Common if it were a Sole-pasture they might have put in what Cattle they pleased for it is all one to the Lord who is to be wholly excluded The Court may discern by all these Badges that it is in its nature but a Common by Art put into other words to oust the Lord. I shall now crave leave to offer to the view of the Court the Consequences and Inconveniences of this Prescription 1. If there be a Surplusage at any time the Lord cannot improve nor feed but it must be lost which is against the Publick Good 2. If a Stranger feeds and does a Petit Trespass as it is called in Robert Maries Case 9 Co. the Lord can have no Action for the feeding but the Tenants must and then they must either joyn or sever if they joyn what a number of Plaintiffs will there be and how shall the same recovered be divided in Equity or the Contribution for the Costs If they sever and be non-suit then there will be as many several Actions which will be vexatious according to Robert Maries Case 3. If a Freehold be purchased by the Lord or Escheat or a Copyhold Estate be determined what is become then of the share of the Sole feeding The Lord cannot joyn with them in the Prescription shall he have not benefit of the Soil If so what if all but one fail shall that one have all If on the contrary the Lord shall feed must he do it as the Owner of the Soil and have the Surplusage for the Levancy and Couchancy is not material among themselves And then they would become as Commoners again and this would be a strange Prescription that cannot be maintained if ever there were any Escheat of any Tenancy into the Lords hands 4. But the greatest mischief of all will be that this will be a ready way to enable Tenants to withstand all Improvements In Gatewards Case 6 Co. 60. it was a great reason against a Prescription that it was inconsistent with any improvement it would be a great mischief to this Kingdom where there are large Wastes and Commons Forrests and Fenns to take away all power of improving them for the same Land by improvement becomes able to support a great number of people which are the strength of the Kingdom And as there are great inconveniences on this side so the other way there will be none at all for they may enjoy the same Usages as Commoners if they prescribe the ordinary way and the Lord cannot do them any prejudice at all he can only take the Surplusage leaving them sufficient if he
her But Object All these words together to make a Slander Answ No man can assign me such a ratiocination a male divisis ad bene conjuncta I never heard it but in my Lord Straffords Case viz. that many Trespasses should make a Treason 'T is said he stirred up a Vexatious Action so does a Counsell when he Advises an Unsuccessful Action for the party is amerced pro falso clamore He will milk your Purse taken enunciatively signifies no more than Milking a Bull the Phrase is not come to an Idiom So of Filling his Pockets these Words might have been spoken of the Law and indeed they are spoken of the Thing not the Man or his Practice Dunce Corrupt c. concern the Profession but these words are applicable to any If he had said he were not a Good Fidler would that be Actionable Termino Paschae Anno 28 Car. II. In Communi Banco Hockett Uxor versus Stegold Ux ' TRespass for Assault Battery and Wounding of the Baron and Feme Vpon Not Guilty pleaded the Verdict was as to the Wife Guilty and quoad residuum Not guilty It was moved in Arrest of Judgment that the Baron and Feme could not joyn in an Action of Trespass for Beating them both 2 Cro. 355 655. 2. That there is nothing found as to the Beating of the Husband and so an imperfect Verdict for the Quoad residuum shall extend only to the other Trespasses done to the Wife Yelv. 106. Vid. Lib. which goes to both Points But the Whole Court were of Opinion that the Verdict had Cured this Mistake in the Action 9 Ed. 4. 51. 6 Acc ' Vid. Styles 349. Termino Paschae Anno 29 Car. II. In Communi Banco Herbert Perrot's Case HE having married a Wife that had an Inheritance of a considerable Value prevails upon her while she was but of the Age of 20 years to levy a Fine upon which the Use was declared to him and her and the Heirs of their two Bodies This was taken in the Country upon a Dedimus potestatem by Sir Herbert Perrot his Father and Mother After which the Wife died without Issue but had Issue at the time of the Fine It was moved in Court that this Fine might be set aside and a Fine imposed upon the Commissioners for the undue Practice and taking of a Fine of one under Age. But all the Judges agreed they could not meddle with the Fine but if the Wife had been alive and still under Age they might bring her in by Habeas Corpus and inspect her and set aside the Fine upon a Motion for perhaps the Husband would not suffer the bringing or proceeding in a Writ of Error And Justice Atkyns said These Abuses which are so frequent in taking Fines were occasioned by the Alteration of the Common Law made by the Statute of Carlisle 15 Ed. 2. that Fines which before were always to be done in Court may now be taken by Dedimus But the Common Law â—alls much short of the Order the Statute prescribes which requires that two Judges of the Court or one at the least should taking with him an Abbot Prior or Knight of good Fame take such Fines whereas 't is now the Common Practice to name Attorneys and Inconsiderable persons The Court were of Opinion That if a Commissioner to take a Fine do execute it corruptly he may be Fined by the Court for in relation to the Fine which is the proper Business of this Court he is subject to the Censures of it as Attorneys c. But they held that they had no power to Fine the Parties for a Misdemeanour in them North Chief Justice and Wyndham would have Fined Sir Herbert Perrot for taking a Fine of one under Age But Atkyns and Scroggs dissented because it did not appear that Sir Herbert Perrot did know she was under Age and it could not be discerned by the View she being Twenty Termino Sancti Hillarij Anno 29 30 Car. II. In Communi Banco Sir John Otwaie's Case IN an Ejectment upon a Special Verdict the Case was to this effect It was found that there was a Parish of Ribton and Vill of Ribton but not Coextensive with the Parish J.S. had Land in Tail in the Parish and out of the Vill and bargained and sold by Indenture with a Covenant to levy a Fine and suffer a Recovery to the Vses of the Deed of the said Land in the Parish of Ribton and the Fine and Recovery were only of Lands in Ribton and whether this would serve for the said Land in the Parish of Ribton was the Question Serjeant Maynard Argued that it would not and said that the Division by Parishes is wholly Ecclesiastical the Limits of which are equal to the Cure of the Parson But that of Towns and Vills is Civil and hath the same Limits with the Power of the Constable and Tythingman Where a Place is named in a Record of the Law and no more said 't is always intended a Vill tho' when a Vill and Parish are both mentioned and of the same Name they are intended Coextensive The later Authorities have admitted Fines to be levied of Land in a place known 1 Cro. 2 Ro. 20. But in a Recovery the Town must be mentioned But 't is Objected That here the Intention appears by the Deed that these Lands should pass But he Answered That cannot carry the Words further than they are contained in the Record Again it is Objected That the Deed Fine and Recovery do all make but one Assurance True but each hath its several effect the Deed serves to declare the Uses but it cannot make the Record larger than it is in the Subject Matter of it If a Formedon had been brought and the Fine and Recovery pleaded in Bar had it not been a good Reply to have said Nient comprise c. In 2 Cro. 120. Storke and Fox the Case was Walton and Street were two Vills in the Parish of Street and a Fine was of Lands in Street and Resolved that no Lands but in the Vill of Street tho' in the Parish did pass And so is Mo. 910. in case of a Grant 2 Ro. 54. If this were permitted it would introduce much Mischief for men would not know what passed by searching the Record but this should be known only by a Pocket Deed and so they in Reversion a Lord of Ancient Demesne c. would not know when to make their Claim and should be barred by reason of a Private Deed when the Record of the Fine or Recovery did not import that they were concerned Fines are to end Controversies and therefore must be certain and in that respect sometimes receive a stricter Construction than Grants A Fine of a Tenement is not good but ought to be reversed but a Grant of a Tenement will bind On the other side it was Argued that since Common Recoveries have been so much in practice and become the Common Assurances of mens Estates
the committing of Treason is the Forfeiture There is a difference between an Heir taking advantage of a Forfeiture in the time of the Ancestor and an Alienee in the time of the former Lord Vid. Owen 63. But then Iustice Charleton declared his Opinion that the Copyhold was given to the King by the of Statute of 12 Car. For the generality of the words other things of that Nature whatsoever and that enforced by the Proviso where mesn Conveyances Surrenders by Copy were mentioned But the other Iustices seemed to be of another Opinion for that Copyholds were never included in a Statute where any prejudice would thereby accrue to the Lord unless expresly named and for the Proviso it might be satisfied by the Copyholds which the Traitors might hold of the Kings Mannors or where they had a Mannor held of the King and had made voluntary Grants of Copyholds and Surrenders made subsequent And so 't was said to be the Opinion of my Lord Hales 16 Car. 2. when he was Chief Baron of the Exchequer But however they were ordered to attend the Kings Attorney General to know whether he desired to be heard to that point Et adjornatur Anonymus UPon a Trial at Bar upon a Quare Impedit the Case was Parceners had made partition to present by turn and an Vsurpation is in the turn of one of them whether this put all the rest out of possession or the Sister which had the next turn should present when the Church became void The Court inclined to an Opinion that it should put all out of possession and would not permit a Special Verdict upon the motion of Serjeant Maynard but a case was made of it for the consideration of the Iudges Vid. Kielway and F. N. B. 35. Anonymus IN na Ejectment Vpon a Special Verdict an Vsurpation had been made to a Church and a Quare impedit brought to remove the Incumbent and pending the Quare impedit the perpetual Advowson was sold by the Plaintiff and it was found ea intentione that J. S. Clerk should be presented after the Vsurper Incumbent removed and accordingly after such removal J. S. was Presented Admitted Instituted and Inducted And after Argument the Court gave Iudgment for the Plaintiff whose Lessor supposing the Presentation c. void by the Statute against Simony had procured a Presentation from the King and Admission Institution and Induction thereupon and the Court held it to be plain Simony Termino Sancti Michaelis Anno 2 Jac. II. In Communi Banco Bathursts Case AN Action was brought against him as Executor of an Executor of an Executor against whom the Plaintiff had recovered a Iudgment in Debt and it was suggested that he had wasted the Estate of the first Testator and so by the Statute 30 Car. 2. his Executor was liable in such Manner as his Testator would have been if he had been living Vpon Plene Administravit pleaded the matter was found specially and that the Executor which wasted was indebted to the Defendant whom he made Executor upon a simple Contract And the Question was whether the Defendant might retain for his Debt against the Debt grounded upon the Devastavit And the Court held that he might for it shall not be adjudged a Debt superior to a simple Contract Termino Paschae Anno 22 Car. II. In Communi Banco Grove and Dr. Elliot Chancellor of Sarum A Motion had been made for a Prohibition upon a Suggestion that per legem terrae no man ought to be Iudge in his own Cause c. nor ought any man to be compelled to answer Articles prosecuted against him ex mero Officio c. And that contrary hereto the Defendant had articled against the Plaintiff that he did out of his own private Will and Spirit and contrary to the Laws keep Conventicles and did allow and permit one South and others pretended Ministers and not allowed by the Church to Expound and Preach to himself and many others c. and this was ex promotione A. B. Notarij Publici c. It was not alledged in this Libel or Articles that there was any Presentment of this Matter but the Register of the Court swore that there was a Presentment made by the Curate of the Parish where c. and that a certain Copy which he delivered here into Court was a true Copy thereof Ellis Serjeant for the Plaintiff First Conventicles are properly punishable at the Common Law and not by the Ecclesiastical Law they are inquirable upon every Commission of Oyer and Terminer 4 Inst 162. and the late Act against Conventicles was in force at this time Secondly No man ought to be proceeded against in the Spiritual Court without a due presentment 25 H. 8. c. 14. declares that 't is not reasonable that any Ordinary by any suspition conceived of his own fancy without due accusation or presentment should put any Subject of this Realm into the infamy or slander of Heresie And the reason of this extends to other things as well as Heresie Indeed this Statute is repealed but as my Lord Coke 12 Rep. 26. observes it was herein declaratory of the Common Law and 't is great reason that there should be a presentment and accusation by some proper Person for otherwise an innocent Person in case of false accusation would not known where to have his remedy Object Here is a Presentment by the Curate and by the 113 of the Canons made 3 Jacobi a Curate in the absence of the Rector may present Answ First These Canons were never confirmed by Act of Parliament and without that there cannot be any Canons made to alter the Law 12 Co. 72 73. at least they can bind none but the Clergy Vid. Mo. 755. and one reason thereof is because the Laity have no Representatives in the Convocation Secondly This Canon says only that a Curate may present in the absence of the Rector it doth not appear here that the Rector was absent Thirdly All such Presentments ought to be upon Oath and this is not proved so to be The Courts in this Hall cannot proceed upon any such thing without Oath Fourthly It is not alledged in the Libel or Articles that there was any Presentment at all only the Register comes in and saith he finds such a Presentment among the Acts of the Court so that Issue cannot be taken whether any or no So it must be taken his proceeding was ex Officio mero without Presentment and 't is as great a mischief as was by reason of common Informers before the 18 Eliz. c. 5. appointed their names to be endorsed upon all Process sued out by them Thirdly In this Case they will examine upon Oath Now no Layman ought to answer upon Oath except in Cases matrimonial and Testamentary 12 Co. 26 27. 3 Cro. 262. Baldwyn contra First That Conventicles are punishable at the Common Law or were by the late Statute does not disprove or take away the Iurisdiction of the Spiritual
ann ' For 21 years extunc ê“x ' sequen ' plenar ' complend ' finiend ' Virtute cujus dimissionis praedictus Johan ' in TenÌ„ta praed ' cum pertinen ' Lessee enters intravit fuit inde possessionat ' Et sic inde possessionat ' existen ' idem Johannes postea scilicet decimo die Augusti Anno Domini millesimo sexcentesimo octogesimo secundo apud Grancester praedictam dimisit ad firmam tradidit eidem Roberto Dickman Tenementa praedicta cum pertinen ' habend ' occupand ' And Demised to the Plaintiff eidem Roberto Assign ' suis a Festo Sancti Michaelis ArcÌ„hi tunc ê“x ' sequen ' usque plenum finem terminum sex annorum extunc ê“px ' sequen ' plenar ' For six years complend ' finiend ' virtute cujus dimissionis idem Robertus in crastino dicti Festi Sancti Michaelis Arch ' Anno Domini milesimo sexcentesimo octogesimo secundo supradicto in Tenementa praedicta cum pertinen ' intravit fuit inde possessionat ' The Lessee Enters usque finem expirationem ejusdem termini praedictus tamen Abrahamus praemissorum non ignarus sed machinans fraudulenter intendens ipsum Robertum minus rite praegravare ac eum de faldagio praedicto ut praefertur habend ' impedire ac de prosicuo commoditate inde totaliter deprivare diu ante finem termini praedicti ult ' mentionat ' scilicet primo die Maii Anno Regni Domini Jacobi secundi nuper Regis Angliae tertio Oves videlicet ducent ' Oves ipsius Abrahami in Communes Campos de Grancester praed ' ibidem depasturand ' The Cause of Action posuit Oves ibidem eun ' depascend ' extunc usque decimum diem Septembris tunc ê“x ' sequen ' existen ' ante finem termini praedicti ult ' mentionat ' custodivit continuavit sed Oves ill ' in aut super praedictas centum sexaginta acras terrae arrabilis ipsius Roberti vel in aut super aliquam inde parcellam minime faldavit sicut ipse debuisset nec permisit ipsum Robertum habere beneficium faldagii earun-praedicto Abrahamo duran ' eodem termino non existen ' tenen ' For not Folding his Sheep according to Custom sive occupatore aliquorum messuag ' sive terrarum in Villa de Coton praed ' de quibus tenen ' sive occupator ' inde ê“ tempore existen ' a tempore cujus contrarii memoria hominum non existit usi fuer ' intercoicÌ„are Causa vicinagii in praedictis Communibus Campis de Grancester praedict ' cum Ovibus suis praedict ' ut praefertur per quod idem Robertus ê“ficuum advantagium faldagii Ovium praedictorum super praedictas centum sexaginta acras terrae arabil ' quibus ipse gaudere debuisset ê‘ tempus illud omnino ê‘didit amisit ad dampnum ipsius Roberti quadraginta librarum inde ê“duc ' Sectam c. Per quod the Plaintiff lost the benefit of Foldage Et praedictus Abrahamus per Richardum Pyke Attorn ' suum ven ' defend ' vim injur ' quando c. Not Guilty pleaded Et dic ' qd ' ipse in nullo est culpabilis de pÌ„missis praedictis suê‘ius ei imposit ' ê“ut praedictus Robertus su ê‘ius versus eum queritur Et de hic pon ' se suê‘ Patriam Et praedictus Robertus similiter Ideo praecept ' est Vic' qd ' venire fac ' hic a die Sanct ' Trin ' in tres septimanas duodecim c. ê‘ quos c. Et qui nec c. ad recogn ' c. quia tam c. Dickman versus Allen. IN an Action upon the Case the Defendant declared That the Provost and Scholars of Kings College in Cambridge were seised in Fee in jure Collegii of a Messuage in Grancester in Cambridge and 160 Acres of Arable Land lying in the Common Fields of Grancester aforesaid and the said Provost c. and all those whose Estate they have in the Tenements aforesaid have time whereof c. for themselves their Farmers and Tenants of the said Tenements libertatem Foldagii Anglicè Foldage omnium Ovium except c. euntium depascentium infra Communes Campos Territoria de Grancester praed ' super praed ' centum sexaginta Acras Terrae ê‘cipiend ' foldand ' tanquam ad praed ' Tenement ' ê‘ertinent ' and then sets forth a Lease made by the Provost and Scholars to Sir John Witwrong of the said Messuage and 160 Acres for 20 years which said Sir John let them to the Plaintiff for six years by virtue whereof the Plaintiff entred and was possessed and the said Defendant Praemissorum non ignarus did put 200 Sheep into the Common Fields of Grancester aforesaid and there kept and depastured them for a certain time sed Oves illas in aut super praed ' centum sexaginta Acras Terrae Arab ' ipsius Quer ' vel in aut super aliquam inde parcell ' minime foldavit sicut ipse debuisset nec permisit ipsum Querentem habere beneficium faldagii earundem and shews how the Defendant was not within exception by which the Plaintiff lost the profit of the Foldage c. and laid it to his damage of 40 l The Defendant pleaded not guilty and a Verdict was for the Plaintiff And it was moved in Arrest of Iudgment that the Plaintiff had not in his Declaration set forth a sufficient Cause of Action for he saith that the Defendant had not folded his Sheep upon the 160 Acres as he ought and it is not set forth that the Custom was for the Owner of the Sheep to bring his Sheep to fold them upon the said Lands But it was objected on the Plaintiffs part that the word Foldagium did imply as much and it was the usage in Norfolk and Suffolk for the Owner of the Sheep to put his Sheep into the Lords Land and fold them there for which the Lord provided Hurdles and prepared the Fold to receive them and of this Faldagium a Fine was levied of inter al' as is reported in 1 Ed. 3. fo 2. and the usage in Norfolk and Suffolk is there mentioned And it was said in a Possessory Action 't is enough to say sicut debuit without setting forth any particular Custom or Prescription And Dent and Olivers Case was cited 2 Cro. 122. where an Action was brought for disturbing of him in taking of Toll ad Feriam ipsius le Plaintiff spectan ' and it was moved after Verdict that he made no Title by Prescription or Custom to the Toll and it was held by the Court to be sufficient in a possessory Action to say ad Feriam suam spectant ' So also in an Action for stopping of a way belonging to his House without setting forth any Prescription between St. John and Moody a
part yet notwithstanding the Estate should continue in him The words of my Lord Coke 1 Inst 217. a are That it cannot stand with any Reason that a Freehold should remain in a man against his own Livery when there is a person able to take it There needs only a Capacity to take his Will to take is intended Why should it not seem as unreasonable that the Estate should remain in Simon Leach against his own Deed of Surrender For in case of a Surrender a Deed and sometimes Words without a Deed are as effectual as a Livery in case of a Feoffment Thirdly The third and principal Reason as I take it why the Law will not suffer the Operation of a Conveyance to be in suspence and to expect the Agreement of the party to whom 't was made is to prevent the Vncertainty of the Freehold This I take to be the great Reason why a Freehold cannot be granted in futuro because that it would be very hard and inconvenient that a man should be driven to bring his Praecipe or Real Action first against the Grantor and after he had proceeded in it a considerable time it should abate by the transferring the Freehold to a Stranger by reason of his Agrement to some Conveyance made before the Writ brought for otherwise there is nothing in the nature of the thing against Conveying a Freehold in futuro for a Rent de novo may be so granted because that being newly Created there can be no precedent Right to bring any Real Action for it Palmer 29 30. Now in this Case suppose a Praecipe had been brought against Simon Leach this should have proceeded and he could not have pleaded in Abatement till Sir Simon Leach ha assented and after a long progress in the Suit he might have pleaded that Sir Simon Leach assented puis darrein continuance and defeated all So that the same Inconvenience as to the bringing of Real Actions holds in Surrenders as in other Conveyances And to shew that it is not a slight matter but what the Law much considers and is very careful to have the Freehold fixed and will never suffer it to be in abeyance or under such uncertainty as a Stranger that demands Right should not know where to fix his Action A multitude of Cases might be cited but I will cite only a Case put 1 H. 6. 2. a. because it seems something of a singular nature Lord and Villain Mortgagor and Mortgagee may be both made Tenants But it will be said here that if a Praecipe had been brought against Sir Simon Leach might not he have pleaded his Disagreement and so abated the Writ of Nontenure 'T is true but that Inconvenience had been no more than in all other Cases a Plea of Nontenure and it must have abated immediately for he could not have abated it by any dissent after he had answered to the Writ Whereas I have shewn it in the other Case it may be after a long progress in the Suit Again It 's very improbable that he should dissent whereas on the other side an Assent is the likeliest thing in the world so the mischief to the Demandant is not near so great nor the hundredth part so probable Now I come to consider those Inconveniences that have been urged that would ensue if a Surrender should work immediately It has been said That a Tenant for Life might make such Deed of Surrender and continue in possession and suffer a Recovery and this might destroy a great many Recoveries and overthrow Marriage Settlements and defeat Charges and Securities upon his Estate after such Deed of Surrender These and a great many more such like Mischiefs may be instanced in Surrenders but they hold no less in any other Conveyance whereby a man may as has been shewed before divest himself of the Estate and yet continue the Possession and in this Case the Assent of the Surrendree tho' he doth not enter would as it is agreed of all hands vest the Estate in him Hutton 95. Br. tit Surrender 50. tho' he cannot have Trespass before Entry and that Assent might be kept as private and let in all the Mischiefs before mentioned as if no such Assent were necessary And this I think sufficient to Answer to the Inconveniences objected on that side Now let us see what Inconveniences and odd Consequences would follow in case a Surrender could not operate till the express Assent of the Surrendree then no Surrender could be to an Infant at least when under the age of Discretion for if it be a necessary Circumstance it cannot be dispensed with no more than Livery or Attornment So tho' an Infant of a year Old is capable to take an Estate because for his benefit he could not take a particular Estate upon which he had a Reversion immediately expectant because it must enure by Surrender If there be Joyntenants in Reversion a Surrender to one of them enures to both 1 Inst 192 214. a. so there as to one Moiety it operates without Assent or Notice Suppose Tenant for Life should make Livery upon a Grant of his Estate to him in Reversion and two others and the Livery is made to the other two in the absence and without the Notice of him in Reversion should the Livery not work immediately for a Third part of the Estate And if it doth it must enure as a Surrender for a Third part So is Bro. tit Surrender and 3 Co. 76. If Tenant for Life should by Lease and Release convey the Lands held by him for Life together with other Lands to him in Reversion who knows nothing of the Sealing of the Deed should this pass the other Lands presently and the Lands held for Life not till after an express Assent because as to those Lands it must work as a Surrender Plainly an express Assent is not necessary For if the Grantee enters this is sufficient I come in the last place to Answer those Arguments that have been made from the manner of putting the Case of Surrenders in the Book and the Form of pleading Surrenders Co. 1 Inst 337. b. First A Surrender is a yielding up of the Estate which drowns by mutual Agreement between them Tenant for Life by Agreement of him in Reversion surrenders to him he hath a Freehold before he enters And so Perkins in putting the Case of a Surrender mentions an Agreement and divers other Books have been cited to the same purpose To all which I Answer No doubt but an Agreement is necessary But the Question is Whether an Agreement is not intended where a Deed of Surrender is made in the absence of him in the Reversion whether the Law shall not suppose an Assent till a Disagreement appears Indeed if he were present ' he must agree or disagree immediately and so 't is in all other Conveyances The Cases put in Perkins Sect. 607 608 609. are all of Surrenders made to the Lessor in person for thus he puts
of the Crown so 11. and so it was held in the Case of the Earl of Essex in Queen Elizabeths Time and in the Lord Cobham's Case in the Reign of King James the First And the Chief Justice cited the Statute made 29 H. 6. cap. 1. upon the Rebellion of Jack Cade which Act sets forth that John Cade naming himself John Mortimer falsly and traiterously imagined the Death of the King and the destruction and subversion of this Realm in gathering together and levying of a great Number of the King's People and exciting them to Rise against the King c. against the Royal Crown and Dignity of the King was an Overt act of imagining the Death of the King and made and levied War falsly and trayterously against the King and his Highness c. So that it appears by that Act that it was the Iudgment of the Parliament That gathering Men together and exciting them to Rise against the King was an Overt Act of Imagining the Death of the King Vide Stamford's Pleas of the Crown fo 180. And according to this Opinion Judgment was given against Harding in the following Sessions and he was Executed thereupon NOta At an Adjourned Sessions held the 19th of May 2 Willielmi Mariae it appeared that one of the Kings Witnesses which was to be produced in an Indictment for Treason had been the day before Challenged to Fight by a Gentleman that it was said was a Member of the House of Commons he was by the Court bound in a Recognizance of 500 l to keep the Peace And because it appeared the Witness had accepted the Challenge he was bound in the like Sum. NOta Vpon an Appeal to the House of Lords Anno 2 Willielmi Mariae the sole Question was Whether upon the Statute of Distributions 22 23 Car. 2. the half Blood should have an equal share with the whole Blood of the Personal Estate And by the Advice of the two Chief Justices and some other of the Judges the Decree of the Lords was That the Half Blood should have an Equal share Samon versus Jones IN an Ejectment brought in the Court of Exchequer in the year of the Reign of the late King James the Second The Case upon a Special Verdict was to this effect William Lewis seised of a Reversion in Fee expectant upon an Estate for Life did by Deed Poll in Consideration of Natural love and affection which he had to his Wife and Robert Lewis his Son and Heir apparent begotten on the Body of his said Wife and to Ellen his Daughter give grant and confirm unto the said Robert Lewis the Son all those Lands c. the Reversion and Reversions Remainder and Remainders thereof To have and to hold to his Son and his Heirs to the Vses following viz. to the use of himself for Life and then mentioned several other Vses not necessary to be here mentioned as not material to the Point in question and then to the use of the Wife for Life and after to the use of Robert and the Heirs of his Body and for want of such Issue to the use of Ellen the Daughter and the Heirs of her Body c. William Lewis and his Wife died Robert the Son devised the Estate to the Lessor of the Plaintiff and died without Issue Ellen was in possession and claimed the Lands by this Deed in which thâ—re was a Warranty but no Execution of the said Deed further than the Sealing and Delivery was had either by Enrolment Attornment or otherwise So that the sole Question was Whether this Deed should operate as a Covenant to stand seised or be void And it was Adjudged to amount to a Covenant to stand seised in the Court of the Exchequer And upon a Writ of Error brought upon the Statute of Ed. 3. before the Commissioners of the Great Seal and others empowered by that Act to sit upon Writs of Error of Judgments given in the Court of Exchequer the said Judgment was Reversed by the Opinion of Holt Chief Justice of the Kings Bench and Pollexfen Chief Justice of the Common-Pleas And upon a Writ of Error before the Lords in Parliament brought upon the said last Judgment it was Argued for the Plaintiff in the VVrit of Error That this should enure as a Covenant to stand seised to the use of the Wife Son c. It appears by Bedell's Case in the 7 Co. and Foxe's Case in the 8 Co. that the words proper to a Conveyance are not necessary but ut res magis valeat a Conveyance may work as a Bargain and Sale tho' the words be not used so as a Covenant to stand seised tho' the word Covenant is not in the Deed and and Poplewell's Case were cited in 2 Roll. Abr. 786 787. A Feme in Consideration of a Marriage intended to be had between her and J. S. did give grant and confirm Lands to J.S. and his Heirs with a Clause of VVarranty in the Deed which was also Enrolled but no Livery was made It was Resolved to operate as a Covenant to stand seised Vide Osborn and Churchman's Case in the 2 Cro. 127. which seems contrary to that Case but the chiefest Case relied upon was that of Crossing and Scudamore Mod. Rep. 175. where a man by Indenture bargained sold enfeoffed and confirmed certain Lands to his Daughter and her Heirs and no Consideration of Natural Love or Money exprest This was Resolved 22 Car. 2. in B.R. to operate as a Covenant to stand seised and upon a Writ of Error in the Exchequer Chamber the Judgment was affirmed It was said on the other side for the Defendant That the Case at Bar differed from the Cases cited for here the Intention of the Deed is to transfer the Estate to the Son and that the Vses should arise out of such Estate so transferred In the Cases cited no Vses are limited upon the Estate purported or intended to be Conveyed but only an Intention appearing to convey an Estate to the Daughter in Crossing's Case and to the intended Husband in Poplewell's Case and seeing for want of due Execution in those Cases the Estate could not pass at Law it shall pass by raising of an Vse But the Case at Bar is much the same with the Case of Hore and Dix in Siderfin the 1st Part. 25. where one by Indenture between him and his Son of the one part and two Strangers of the other part in Consideration of Natural love did give grant and enfeoff the two Strangers to the use of himself for Life Remainder to the Son in Tail c. and no other Execution was three than the Sealing and Delivery of the Deed this was Resolved not to raise an Vse for the Vse was limited to rise out of the Seisin of the Strangers who took no Estate Vide Pitfield and Pierce's Case 15 Car. 1. Marche's Rep. 50. One gave granted and confirmed Lands to his Son after his Death this Deed had been
But Hale said That he thought that in this Case inasmuch as the Mortgage to Lee was only of part of W. that therefore Marsh might bring Lee to an Account upon the extended value whereupon these two Mannors were extended upon the Statute and if Lee had received the Money due upon the Statute by receiving of the Profits according to the extended value or if she will pay down the residue of the Money due upon the Statute or if she will pay down so much as the proportion will come to for Monfield that then she may discharge the Mannor of Monfield But then my Lord Keeper asked him how he would have it appointed and how much should be laid upon Monfield and how much upon Wicksal for that part of W. is under that Extent To which Hale Answered That if Marsh did sue Lee for the discharge of this Statute from Monfield that Monfield should be Discharged by her paying down as much as the proportion comes to or when Lee shall have received so much according to the extended value and that he thought there might be a proportion found out by the Court. Nota Sir H. Fynch Counsel for Lee cited Primate and Jackson's Case Grove and Grove's Case and Mrs. Calamy's Case All which were Resolved in this Court That a Purchasor or Mortgagee coming in upon a valuable Consideration without Notice and purchasing in a precedent Incumbrance it shall protect his Estate against any person that hath a Mortgage subsequent to the first tho' before the last Mortgage tho' he purchased in the Incumbrance after he had Notice of the second Mortgage White versus Ewer AT a Re-hearing before my Lord Keeper assisted with Justice Vaughan and Turner concerning the Redemption of a Mortgage which had been made above 40 years since My Lord Keeper Declared That he would not relieve Mortgages after 20 years for that the Statute of 21 Jac. cap. 16. did adjudge it reasonable to limit the time of ones Entry to that number of years Vnless there are such particular Circumstances as may vary the ordinary Case as Infants Feme Coverts c. are provided for by the very Statute tho' these Matters in Equity are to be governed by the Course of the Court and that 't is best to square the Rules of Equity as near the Rules of Reason and Law as may be Termino Sancti Michaelis Anno 22 Car. II. In Cancellaria Peter Pheasant versus Anne Pheasant The Lord Mayor of London and Sir Thomas Player Chamberlain of London c. THe Case was this Anne Hadly now Pheasant one of the Defendants being an Orphan of London and having an Estate of 3 or 4000 l in Money in the Court of Orphans there was married to W. Pheasant elder Brother to the Plaintiff W. Pheasant before he was at the Age of 21 years and not having taken out this Money dies having bequeathed this Money inter alia to his said Wife provided that she should not claim Dower c. Notwithstanding she brings Dower against the now Plaintiff Brother and Heir to her late Husband Whereupon he brings this Bill in Chancery to make Discovery of this Estate and to compel her to release her Dower or renounce this Devise and thereupon obtains an Injunction to stay Proceedings in the Writ of Dower The Point was Whether this Money in the Court of Orphans were Devisable or no Serjeant Goodfellow Argued That it was Devisable as a Chattel personal in the Testator's possession and vested in the Baron the Court of Orphans have but have the Custodiam Co. Entries 346. 1 Roll. 550. the Chamberlain of London is the Officer intrusted and a sole Corporation to this purpose so as to take Recognizance which shall go to his Executors and is the only Corporation of that nature in England His possession is the Testator's actual possession Latch 127. If the Servant be robbed the Master shall have the Action in the 1 Cro. 37. This is not a Debitum but a Depositum as in Custodia in gremio legis by the Custom of London as if Money had been brought into Court here by a Compulsory Order in which case it would have vested in the Husband Now in the Court of Orphans they compel People to bring in the Money or to give Security and they pay no Interest only allow Finding-Money that is for the Orphans Maintenance and no more Seeing the Feme is intituled to Dower immediately it were hard that the Baron should not have the Portion Debts he shall not have because of his Latches in not bringing an Action whereby to reduce them to Property but this cannot be had until the Wives full Age. Vpon the Marriage of Orphans the Custom is to appoint the Common Serjeant to Treat and take Security for the Orphan Serjeant Maynard contra This was a Chose en Action Debt lies for it and it cannot be recovered without an Action Interest is allowed for it according to the Custom tho' not Statute Interest and proportionable to the Sum. And the Case of Dr. Ent versus Adrian was by the Custom of London If a man dye leaving three Sons his Estate shall be equally divided amongst them and if either of them dye within Age his part shall survive to the other The Father taking notice of this Custom Devised That if any of his Sons dye within Age his part should not survive but that it should go to J.S. It was Resolved that the Father could not thus give the Childs Portion because but a possibility and a thing not vested in himself Wyld said That when he was Recorder he certified the Custom in that Case to be That the Father might Devise Curia viz Bridgman Lord Keeper Twisden and Wyld assisting We are clear of Opinion that this was a Chose en Action and not Devisable A Trover and Conversion lies not for it if it be refused to be paid It was the Latches of the Husband that he did not recover it for by the Custom it is to be paid at the full Age or Marriage of the Female Orphan The Chamberlain is not a Servant to the Orphan but to the Mayor If it were purely a Depositum it must be paid in specie without Interest but they pay Customary Interest And tho' whilst the Orphans are under Age and Vnmarried if Women they give them Finding Money only yet at the end of all when the Orphan comes at full Age or if a Female marries all is Cast up and the Interest is paid The word Custodia in Pleading imports an Interest as in the Case of Guardian in Soccage c. the Lord Mayor c. have a Special Interest in it and if it be lost or miscarry they are to Answer it Let the Injuction be Dissolved Nota This Case was referred by my Lord Keeper to Justice Wyld A man opens a Mine in his Land and digs until he comes under the Soil of another whether he can follow his Mine there And he certified
his Opinion that he might But if the Owner dig there also he conceived that he might then stop his farther progress And in Cornwall it is their Vse that if a man begins a Mine in his own Land he may proceed in the Vein through another mans Ground Note If a Bill in Chancery be Exhibited against a Peer the Course is first for my Lord Keeper to write a Letter to him and if he doth not answer then a Subpoena and then an Order to shew Cause why a Sequestration should not go and if he still stands out then a Sequestration For there can be no Process of Contempt against his Person Termino Sanctae Trinitatis Anno 29 Car. II. Clobberie's Case IN one Clobberie's Case it was held That where one Bequeathed a Sum of Money to a Woman at her Age of 21 years or Day of Marriage to be paid unto her with Interest and she died before either that the Money should go to her Executor and was so Decreed by my Lord Chancellor Fynch But he said If Money were bequeathed to one of his Age of 21 years if he dies before that Age the Money is lost On the other side If Money be given to one to be paid at the Age of 21 years tho' if the party dies before it shall go to the Executors Termino Sancti Michaelis Anno 30 Car. II. In Cancellaria Haymer Vid. versus Haymer THe Case was thus The late Husband of the Plaintiff before their Marriage had entred into Articles with the Plaintiff whereby it was Agreed That certain of the said Haymer's Lands should be setled before the Marriage which was then intended between them should be solemnized upon him and the Plaintiff and the Heirs of his Body by the Plaintiff but died before the Settlement was made In pursuance of the said Articles the Plaintiff married him and after his Decease the Plaintiff Exhibits her Bill to have those Articles executed Which was Decreed accordingly against the Heir at Law of the Husband Altho' it was Objected That the Articles being to make the Settlement before Marriage it was a Waver of the benefit of them the Plaintiff marrying before it was done and the Plaintiff being the sole party with whom they were made her marriage with the other party before they were performed was a Release in Law Note The Lands were mortgaged to one that had no Notice of the Articles It was Decreed That the Plaintiff should Redeem and hold for her Life and that her Executors should detain the Land till the Money was raised that she had been out upon the Redemption Termino Sancti Hillarij Anno 31 32 Car. II. In Cancellaria Sir Oliver Butler's Case UPon a Scire facias to Repeal a Patent granted by this King to Sir Oliver Butler for a Market to be kept at Chatham reciting That there was an Ancient Market long before kept at Rochester within Half a Mile of Chatham and that there was an Ad quod damnum taken out before the New Patent and the Inquest thereupon taken found it not to be to the Damage of any and that it was Executed by Surprize and without Notice and that notwithstanding it was to the great Damage of the former Market c. To this Scire facias Sir Oliver Butler Demurred And it was Argued by his Counsel That this Patent could not be Repealed because it was preceded by a Writ of Ad quod damnum whereupon it was found to be to no Bodies damage and that should conclude all or at least the King could not bring a Scire facias to Repeal his own Patent But the Lord Chancellor Fynch assisted by North Chief Justice of the Common-Pleas and Justice Jones gave Judgment for Repealing of the Patent For the Return of the Writ of Ad quod damnum was not Conclusive and here by the Demurrer it is Confessed to be to the Damage of the former Market And where a Patent is granted to the prejudice of the Subject the King of Right is to permit him upon his Petition to use His Name for the Repeal of it in a Scire facias at the King's Suit and to hinder multiplicity of Actions upon the Case for such Actions will lye notwithstanding such void Patent Termino Sanctae Trinitatis Anno 32 Car. II. In Cancellario Sir Jerom Smithson's Case A Motion was made for a Ne exeat Regnum against Sir Jerom Smithson for that his Wife had Sued him in the Ecclesiastical Court for Alimony and it was suspected that he would go beyond Sea to avoid the Sentence And the Writ was granted And the Lord Chancellor said That it had been so done before for this Court was to aid the Ecclesiastical Court in such Cases And likewise the Court being Informed of his Ill usage of his Wife a Supplicavit de bono gestu was granted My Lord Hollis's Case Pasch 26 Car. II. MY Lord Hollis's Case was thus An Hundred Pounds was Lent by his Lady and in the Note which was first given for it it was written that the Money was to be disposed as the Lady Hollis should direct An Action at Law for this Mony being barred by the Statute of Limitations a Bill was exhibited for Relief and the Statute of Limitations insisted upon But in regard the Money was looked upon as a Depositum and a Trust thereupon to the Lady a Decree was obtained for the Money Sir William Beversham's Case HE had purchased a Mannor and a Copyhold being a little before Escheated which was not intended to pass in Demesn was left out of the particular yet the Conveyance was sufficient to pass it in Law And the Vendor Exhibited a Bill to be relieved and obtained a Decree to hold by Copy of Sir William Beversham Vide 1 Roll. 397. Averments not to be admitted in Chancery contrary to the purport of a Deed. Anonymus Trin. Anno 31 Car. II. THe Case was thus J.S. made his Will his Wife being at that time with Child where he ordered that all his Personal Estate after his Debts and Legacies paid should be laid out in Land in case he had a Son and be setled upon his Brother for preservation of his Name and Devised That if his Wife were delivered of a Daughter that she should have 3000 l paid her at her Day of Marriage provided that she married with her Mothers Consent and otherwise but 1000 l and also Devised That the Mother should have 80 l part of the Interest of the 3000 l for the Education of the Daughter The Testator dies and the Wife has a Daughter The Question was Whether the Daughter should have the remaining part of the Interest of the 3000 l or the Executors should have it in Trust for the Brother and so to be laid out c. It was said for the Brother that the Father intended the Daughter but 3000 l at the most and that appointing 80 l part of the Interest of her Education excluded her from the rest