years not expired at the time of her marriage she should have the Messuage then in his tenure being his Mansion-house which house now is in the tenure of the Plaintiff and an Annuity of 20 l. out of all his other Lands Tenements and Houses of the Devisor in the said Parish with a clause of distress and to detain the same until the said Annuity were payd to the said Ellinor and if Ellinor did marry he did devise all his said Lands except the said Mansion-house to the said Thomas Butler and his Children and made the said Ellinor his Executrix and dyed possessed And the said Ellinor entered claiming the Devise and the 16 of January 1606. marryed the Plaintiff and the 30 of April 1606. the Plaintiff and his Wife did agree to have the said Mansion-house and the said Annuity and Thomas Butler by their assent did enter into the residue And the 12 Jan. 1606. Elianor dyed And at our Lady-day 12 Jacob. 10 l. of the said Annuity was behinde wherefore the Plaintiff the 26 of May 12 Jacob. did enter and take certain goods for the said 10 l. and would have deteined them in the name of a Distress and the Defendants rescued them ad damnum 40 l. The Defendants pleaded Not guilty The Iury found the Lease made by the Bishop and the confirmation with the several Assignments and the Devise as in the Declaration is set forth saving the Devise to the said Thomas Butler from the day of the death of the said Ellinor which clause was not found and they found also that John Butler the 3 Novemb. 3 Jacob. dyed and that Ellinor did enter claiming by the Devise and that she married the Plaintiff and also their agreement to have the Mansion-house and Rent as a Legacy and the entry of Thomas Butler in the residue by the assent of the Executor and the death of Ellinor and that the 10 l. was behinde and that the Plaintiff took the goods and would have detained them as a Distress and that the Defendants rescued them And if the Defendants were guilty they found for the Plaintiff if not they found for the Defendant c. And I conceive Iudgment ought to be given for the Defendants For first I conceive that the Wife of John Butler had not any Rent at all out of the house in which the Distress was taken If she had any Rent yet it is determined by her death And I conceive the Case to be thus Lessee for years of two houses does devise them to his Wife for 28 years which is all the term if she live so long unmarryed and after her death to Thomas Butler and if the woman marries that she shall have one Messuage for the residue of the term and 20 l. Rent ex omnibus aliis terris suis with a clause of Distress and then Thomas Butler shall have the other Messuage The Devisor makes his Wife Executrix and dyes and the Wife enters claiming by the Devise and then marries the Plaintiff and then they agree to have the house that was devised to her after her marriage with the Rent and Thomas Butler by their assent does enter into the residue the Wife dyes and the Plaintiff distrains for Rent behinde after her death and the Defendants rescue the Distress whereupon the Plaintiff brings his Action And as to the first I conceive that the Wife can have no Rent by this Devise and that for three Reasons Because the Wife did take the entire term as Executrix and therefore she cannot have a Rent out of the same term and therefore I conceive it will not be denyed that if Lessee for years deviseth a Rent to I. S. and makes him his Executor and dyes I. S. shall have no Rent for in as much as he hath the term as Executor he shall have no Rent as Legated for it is extinct in the term and although he hath one in his own right and the other as Executor yet cannot he have both together 4 Ed. 6. B. Surrend 52. If one hath a term as Executor and purchase the Reversion the Lease is extinct And although the term in our case is devised to a stranger yet by the Law it does first vest in the Executor and the Devisee cannot have it without the delivery or consent of the Executor And if a Devisee does enter into a term or takes goods without the delivery of the Executor the Executor may have an Action of Trespass against him 20 Ed. 49. 2 H. 6. 16. 11 H. 4. 84. 37 H. 6. 30. although in the 27 of Henry the 6. 8. a. diversity is taken between a thing certain and uncertain for it is there said that if the thing devised be certain and a stranger takes it the Executor shall have an Action of Trespass but in old Nat. Bre. 87. there is no diversity So that it is clear that the term first vesteth in the Executor and so the Rent which the Executor had is extinguished by unity of possession Object And whereas it hath been objected That although the term does first vest in the Executor yet when he assents to the Devise he is then immediately in by the Devisor and therefore the Rent is not extinct Answer I answer That there the agreement does divest all the Estate that the Devisor had gained by his entry but in our case the woman hath as high and right an Estate in the Land as she hath in the Rent and although there be a possibility of severing the Land from the Rent yet that cannot revive the Rent being extinct as if one hath Land of the part of his Father and hath a Rent out of the said Land of the part of his Mother the Rent is extinct and cannot be divided although he dye without issue And that the Wife hath as high Estate in the Land as she hath in the Rent appears in Cook 6 Rep. Sanders Case where if an Executor commits waste before he assent to the Legacy an Action of waste lies against him which proves that the Executor hath the term And although the Devisee after his assent is in by relation by the Devisor yet this will not ayd the Rent no more then if a Son having Rent out of his Fathers Land and the Father dyes and the Son endows his Wife this shall not revive the Rent which was extinct before yet is the Wife in as of the Estate of her Husband and the Estate and possession of the Son is utterly defeated But admit that the Rent be not extinct yet here is no agreement to have the Rent for here are two Devises 1. Of the Land to the Wife if she continue unmarryed the remainder to Thomas Butler and the other of twenty pounds Rent to commence after her marriage wherefore the assent of the Executrix to the Devise of the Land is no execution of the Devise of the Rent Comment 5. 21. B. Welden and Elkingtons Case If a Termor deviseth a Rent or a
Sister and he to enter at the age of one and twenty years and if any of his Sons died before the age of one and twenty years his part should be divided amongst the Sâ—â—vivors and so every one should be heire to the other and all of them came of age and paid the money and it was holden that each of them had an Estate in Fee and not in Taile and Dyer 357. Chick did devise the Fee-simple of a Messuage to A. his wife and after her death to W. his Son which W. was his Heir apparent A. did enter and married again and dyed having Issue by him and adjudged that A. had an Estate for life the Reversion to W. for life the Remainder to A. in Fee and 14 Eliz. a. One seised of Lands in Fee devised them to B. and the heirs of his body and if he died that it should remain to A. in fee yet B. shall have an Estate in Taile by the first words and shall not be restrained by the last words And Trinit 37 Eliz Rot. 382. Bacon against Hill and having three Tenements did devise them to his wife for life and then one of them to each of his three Sons and if any did die his part should remain to the Survivors and if any had Issue and died before he entred his Issue should have it and R. one of the Sons had Issue the wife died and R. died and adjudged that his Issue should have nothing Object But it may be objected that Francis cannot die without heire so long and his Sisters are living and therefore it shall be construed that the Devisor did intend only the heires of his body Answer But it does not appear that the Daughters were of the whole blood to Francis so that they may be heires to him for although where a Brother or Sister is spoken of in pleading it shall be intended of the whole blood because a Brother of the half blood is but half a Brother yet here when the Father onely does call them his Sons and Daughters and is so found by the Iury that they were his Sons and Daughters yet this is no proof that they were of the whole blood for they are daughters to the Father by what ever wife they were had And so I conceive upon the whole matter that the wife does take an Estate for life by the devise and that the Son shall have a Fee-simple but yet subject to this future devise sc if he die without heire that the Wittingb shall have it and so all the Will shall be good except the limitation to the Daughters for their lives and it cannot be intended that the Devisor did intend to prefer the Wittingb being his collaterall Cosins before the Issue of his Daughters which Issues are of his owne body Judgment And before that I argued againe Hillar 14 Jacob. Iudgment was given for the Plaintiff for they all agreed that Francis had but an Estate-tail by these words of the Will viz. If M. A. and A. do out live their Mother and their brother Francis and his heires and Francis cannot die without heire so long as his Sisters are living and therefore the word Heirs shall not be intended Heires generall but heires of his body wherefore Iudgment was entred ut supra c. Mich. 14 Jac. Mason against Manning IN an Ejectment upon a Lease made by John Crooker and Christopher Crooker the two and twentieth of May 14 Jac. of two houses forty acres of Land forty of Meadow and forty of Pasture in S. Needs Habendum from the Annunciation last past for three years The Ejectment was the twenty third of May in the same yeare The Defendant as to the force and armes c. pleaded not guilty and as to the residue he said that Queen Elizabeth was seised in Fee of the Mannor of S. Needs whereof the said Tenements are and time out of mind were parcell and that the Queen the ninth of March in the one and thirtieth year of her Raign by her Letters Patents shewed here under the Exchequer Seal did devise the said Tenements to Robert Croker for life the Remainder to Edward Bett for life the Remainder to Edward Adams for life the Queen dies whereby the Reversion does descend to the King Robert Croker dies and the thirtieth of March 14 Jacob. Edward Bet doth devise the said Tenements to the Defendant from the Annunciation last past for three years whereby he entred and was possessed untill the said John and Christopher Croker did oust him and did disseise the said Edward Bet whereby they were seised in fee by disseisin and made the Lease to the Plaintiff upon which the Defendant claiming his term did enter and did out him and the Defendant was and yet is possessed of the said Tenements the Reversion to Edward Bet for life the remainder to Edward Adams for life the Reversion to the King unde non intendit quod curia domino Rege inconsulto ulterius procedere vellet aut debeat and prayed ayd of the King and did aver the life of Edward Bet. And I conceive that ayd is not grantable in this case 1. Because that it is but an Action of Trespass 4 H. 6. 10. Tenant for life of a Lease from the King shall not have ayd of the King for that no Freehold is to be recovered and he is able to plead to all matters in a Trespass 2. The Defendant shall not have ayd of the King because he is not his immediate Tenant but he may pray in ayd of Edward Bet his Lessor and he of the King 1 H. 4. 18. In a Scire facias to execute a Fine the Tenant said that the Land was given to him for life the remainder to N. in Tail the remainder to W. in fee who was attaint of Treason whereby his remainder came to the King and he prayed ayd c. And the Court said that he ought to pray ayd of N. and he of the King and after he said that W. was also attaint of Treason whereby he had ayd of the King 33 H. 6. 29. In a Trespass where the Defendant justified as Baily of a Hundred to distrain for amercements and prayed ayd of the King and by Prisot he could not have it for the Sheriff is the immediate Officer to the King and to this agrees 11 H. 6. 39. where such justification was for taking of Toll and 9 H. 6. 26. In a Replevin the Defendant made Conusance as Baily of I. who held of the King for life and prayed ayd of the King and adjudged he should not have it for there is no privity betwixt the King and him because he is not immediate and 28 H. 6. 13. A man shall not have ayd of the King and Queen or of the King and his Tenant for life but first of the Queen or Tenant for life and they of the King and a man shall not have ayd of the King but where he is Baily or Servant
REPORTS OF THAT GRAVE and LEARNED JUDGE Sir JOHN BRIDGMAN KNIGHT Serjeant at LAVV SOMETIME CHIEF JUSTICE OF CHESTER To which are added Two Exact Tables the one of the Cases and the other of the Principal Matters therein contained LONDON Printed by Tho. Roycroft for H. Twyford Tho. Dring and Jo. Place and are to be sold at their Shops in Vine Court Middle Temple the George in Fleetstreet and at Furnivals Inn Gate in Holborn 1659. TO THE STUDENTS OF THE COMMON LAWS OF ENGLAND Gentlemen THese Ensuing Reports being brought to me in Manuscript in the peculiar Dialect of our Common Law I discovered the same to be the Hand-writing of that late Judicious and Honorable Person Sir John Bridgman Knight deceased Serjeant at Law heretofore Chief Justice of Chester the memory of whose great Learning and profoundnesse in the Knowledge of the Laws of England still liveth although himself be dead and thereupon bestowed some pains in the perusall thereof wherein I found many things in my weak apprehension worthy of observation which induced me to encourage the Translation thereof into our Native Idiome the Language enjoyned by the present Authority onely to be Used in things of this Nature whereby the same might become of publike Use if any well acquainted with the Authors Character shall doubt the Credit of this Copy they may have the sight of the Originall the better to satisfie themselves by the help of the Stationer The Cases are not placed in time as the same were adjudged but Printed in that order as they were found under the Authors own Hand For this Defect it is hoped that the Table may make amends which you will finde to be a perfect Repertory as to each materiall thing contained in this Book What faults have escaped the Presse will lye in the power of the judicious Reader to correct Mr. Bracton in his first Book Cap. 2. saith Si aliqua nova inconsueta emerserint quae prius usitata non fuerint in Regno Si tamen similia evenerint per simile judicentur cum bona sit occasio a similibus procedere ad similia Let this serve to Apologize for such encouragement as hath been given by me for the publishing of these Reports I having no other aim herein then the Publike good Farewell J. H. Middle Temple 5 Nov. 1658. THE NAMES of the CASES A ALlens case 13 Iac. 39 Ashfields case 14 Iac. 99 Adams case 15 Jac. 107 Agards case 15 Jac. 130 B Bassets case 8 Bishop of Chichesters case 1 Car. 29 C Crockers case 27 Coopers case 60 Crawleys case 13 Jac. 64 D Dawtrees case 18 Jac. 4 Davisons case 5 E Evans case 16 Jac. 118 F Frossets case 14 Jac. 49 G Garths case 22 Gouges case 12 Jac. 52 H Harris and Lewess case 56 Hollands case 69 K The King against Sir John Byron 23 The King Allen against Newton 15 Jac. 113 The King Parker against Webb 14 Jac. 120 L Loyds case 56 Lightfoots case 14 Iac. 88 Lees case 15 Jac. 116 Lingens case 15 Jac. 128 M Moores case 6 Meskins case 16 Mills case 63 Masons case 14 Jac. 87 Mandes case 13 Jac. 92 Mittons case 123 Muschamp and Lock against Blewit Sampson and Jenny c. 132 N Norris case 13 Iac. 47 Newshams case 14 Iac. 100 P Pets case 17 Iac. fo 1 Ponesleys case 18 Iac. 12 Perimans case 14 Sir Thomas Palmers case 11 Iac. 46 Pensons case 66 Parkers case 14 Iac. 89 Perryns case 12 Iac. 90 R Robinsons case 13 Iac. 79 Robinson against Greves 12 Iac. 81 S Samborns case 19 Iac. 9 Smalmans case 13 Iac. 42 Smith for the King against Boynton 13 Iac. 48 Smiths case 13 Iac. 59 Standishes case 14 Iac. 103 Southerns case 13 Iac. 125 T Townleys case 35 U Vanlores case 14 Iac. 58 W Whittons case 32 Weals case 14 Iac. 60 Webbs case 13 Iac. 84 Webb and lucks case 14 Iac. 110 Woods case 16 Iac. 139 THE REPORTS OF Serjeant BRIDGMAN Hill 17 Jac. Rotulo 170. Petts against Browne A Man is seised of Land in Fee and having two Sons doth devise his Land to his younger Son and his Heirs and if he dye without Issue living the eldest Son then the elder shall have the Land to him and his Heirs the Devisor dies the younger Son had issue a Daughter that dyed without issue then the younger Son suffers a common recovery with Voucher to the use of him and his Heirs and after deviseth to another and his heirs and then dies without issue living the elder Son Whether the Devisee or the elder Son should have the Land was the question And the Counsell for the Devisee raised three points 1. Admitting that these words in the Devise were omitted viz. living the eldest Son whether the younger Son had an Estate-taile or not 2. Whether these words do make such alteration of the Estate as to make the Estate a Fee-simple determinable upon this contingency viz. if he die without issue living the elder Son 3. Admitting that there were such a Fee in the younger Son yet whether this Estate devised to the eldest Son be not destroied by the recovery And as to the first point it was argued that if these words of limitation living the elder Son had been omitted the younger son had had an Estate-tail by this Devise the remainder in fee to the eldest Son For although the Devise to the younger Son was to him and his heirs which in case the Devise had stayed there had made a very good Fee-simple to the younger Son yet when the Devisor goes and declares further and deviseth that if he dye without issue that the elder son shall have the Land this last limitation if he dye without issue doth restrain the generality of these words his heirs to the heirs of the body of the younger Son only so that the last Devise to the eldest Son doth declare and exemplifie whâ—t kind of heirs the Devisor intended in the first Devise to the youngest Son and in the 5 H. 6. and the 5. where Land was given to R. and K. his Wife and their heirs and to the heirs of the said R. if the heirs of the said R. and K. his wife issuing should dye and this was adjudged a good Estate in tail And there it was said by Hall that if Land be given to a man and his Heirs for ever Et si contingit ipsum Obire sine haeredibus de corpore suo this is a good estate in tail and in the 19 H. 6. 74. by Vampage If I give land to another and his heirs for ever in the beginning of the Deed and then after I say Quod si contingat that if he die without heirs of his body that it shall remain to another in this case the Law intends by the Si contingat that it is but an Estate-tail And in the Book of Assises 14. Land was given to B. and his heirs to have and to hold to
him and his heirs for ever if B. shall have issue of his body and if he die without heirs of his body that the Land shall revert to the Donor and his heirs B. had issue which died without issue and it was adjudged that B. had but an Estate in tail and because he died without heirs of his body it was adjudged that the Donor should recover against the collaterall heire of B. And if the Law be so in Deeds or Grants executed in the life of the Donor a fortiori in a Devise which is to be taken more favourably then an estate made by Deed and therefore it is sufficient in a Devise to have the intention of the Devisor understood either to make an estate in fee or in tail although proper words to make such an estate be not used and the intent of the Devisor cannot be more manifest to have an estate in tail then in this case As to the second Point the question will be whether the younger Son hath an estate in Tail or in Fee determinable by this limitation and it seemed to them that he shall have but an Estate in tail In which the question is to which estate these words of limitation to wit living the elder Son shall be referred viz. Whether to the Estate made to the younger Son or to the Estate given to the elder for if they be referred to the Estate made to the younger there is no question but these words do abridge restrain the estate but if to the elder then they make no restraint or restriction as to the estate of the younger Son but onely limit the remainder to the elder Son on this contingency only viz. If he be alive at the time of the death of the youngest Son without issue And to prove that these words shall be referred to the estate devised to the elder brother They said That if the land had been devised to the younger Son and the heirs of his body and if he dyed without issue living the elder that the elder should have the estate to him and his heirs it is clear that the younger hath an absolute estate tail and that then the remainder to the elder shall be on this contingency viz. If he be living when the younger dies without issue And so is Frenchmans Case 1 2. Eliz. who demised land to his wife for life the remainder to Charles Frenchman and the heirs males of his body and if he died without heirs males of his body the remainder to Arthur Frenchman and the heires males of his body Charles had issue a Daughter and died without issue male and it was adjudged that the Daughter should not have the land for this contingency does not alter the Estatetail that was first limited to Charles and although the Devise in the case at Bar be to the youngest Son and his Heirs without any limitation of his body yet the limitation afterwards to wit if he die without issue does explain well enough that the heires of his body are intended and then the subsequent words living the Eldest Son cannot alter the estate first given to the younger Son And Hil. 40. Eliz. in the Kings Bench by Walmesly If one deviseth land to his Son and his heirs and further deviseth that if he die without issue that the land shall be sold yet the Son shall have an estate in fee and not in tail but otherwise if he devised that if he died without issue that the lands should remain over for in the first case he disposeth of no more of the estate by the last words then he did at the first but in the last case he disposeth of the estate it self in remainder And this was agreed by Owen 18 19. Eliz. Rot. 354. and 15. 16. Eliz. Rot. 330. where the case was That one Edward Clark being seised in fee of two houses had issue Henry and two Daughters Alice and Thomasin Henry dyed before the two daughters living the Father the Father devised one house to his daughter Alice and her heirs for ever and the other to Thomasin who was at that time but eight years of age and her heirs for ever and if she died before the age of sixteen years Alice then living Alice should have it to her and heirs and if Alice should die having no issue living Thomasin Thomasin should have the house of Alice to her and her heirs and if both of them died without issue he devised the two houses to the two Daughters of his Son Henry and their heirs and if they died without issue he devised the remainder to a stranger Proviso That if Alice should marry I. S. that Thomasin should have her part to her and her heirs and if Thomasin should dye having no Child that the daughters of Henry should have all and if they died having no Child the remainder to a stranger as aforesaid The Devisor dies then Alice marries N. but not I. S. and enters into her house Thomasin after sixteen years of age dies without issue And if Alice or the daughters of Henry should have the estate of Thomasin was the question And it was holden by three Iustices that the daughters of Henry should have it because that Thomasin did not die within the age of sixteen years and that it being objected that there was no estate tail to any of the daughters but a fee simple conditionall upon a contingent it was at last adjudged 14. Eliz. Rot. 340. that they were Tenants in tail by this Devise in Mich. 37 38. Eliz. 42. Mich. 14 15. Eliz. And Michaelmas 18. Jacobi Judgment This Case was argued by Montague cheif Iustice Doderidge Haughton and Chamberlain who all agreed that by this Devise the youngest Son had not an Estate-tail but a limited see so that by his dying without issue living the elder Son his estate was quite determined and all except Doderidge agreed that the Recovery could not hurt the future Devise But Doderidge was much against this opinion by reason of great mischeif that might ensue by making of Perpetuities in Devises and cited Archers Case and Capels Case but notwithstanding Iudgment was affirmed as aforesaid De Termin Trinitat 18 Jacob. Rot. 1198. Dawtree against Dee and others IN an Action on the Case wherein the Plaintiff Declared That he the fifth of July 16 Jacobi was and is seised in Fee of a Capital Messuage called Moor-place with the appurtenances and of 600 Acres of Land meadow and pasture in Petworth with the said Messuage used of the annual value of 100 l. which Messuage he and those whose Estate he hath in the said Messuage and Tenements therein Farmors and Tenants have time out of minde used to keep good hospitality for the relieving of the Poor in Petworth aforesaid and that in the Church of Petworth aforesaid on the said fifth of July and also time out of minde there hath been and is a little Chancel on the North part of
173. Judicium And after many arguments in this Case Hillar 20 Jacob. the Court agreed that the Demise was good and Iudgment was given for the Plaintiff Periman against Pierce and Margaret his Wife TEnant in Socage had issue by his first Wife Joan Elizabeth and Agnes and Alice and Elizabeth by his second Wife Katherine Mary William and Joan by his third Wife and by his Will did Devise his Land to Joan the younger for her life rendering 13 s. 4 d. Rent to William the remainder to William in Tayl the remainder to Elizabeth and Mary for life the remainder propinquo sanguinitatis of the Devisor for ever William dyes without issue Joan the younger dyes without issue Elizabeth had issue William Stokes and dyes Mary had issue William Pierce and dyes Joan the elder dyes having issue John Periman and William Periman Agnes and Alice dye without issue John Periman had issue John Periman the Lessor and dyes Elizabeth and Mary dye Katherine dyes without issue Elizabeth had issue George Dean and John Dean Elizabeth deviseth her Land to John Dean and his Heirs and dyes John Dean hath issue John Dean and dyes the Lessor enters and makes a Lease to the Plaintiff who enters and is ejected by the Defendants by commandment of the said John Dean the son upon which the Plaintiff brought an Ejectment And it seemeth to me that judgment ought to be given for the Plaintiff for all the Land or at least for part thereof And therefore in the first place I conceive that when William the son dyed without issue the remainder in fee did vest in John Perriman who was the eldest son of Joan the elder who was the eldest daughter of the Devisor for although the Devisor had many daughters yet his intent appeared in the Will to a single person and not to divers also it appears that he doth not intend that this remainder should vest in William his son for he deviseth to him a Rent during the life of Joan the younger and afterwards an Estate Tail cannot be in Joan the younger or any of her issues because that an express Estate for life is limited to her nor in Elizabeth or Mary for he deviseth a remainder to them for life nor in any other of his daughters for then he would have named them either by their proper names or as his daughters and not by such circumlocution as is pretended in this Case Also the words of Remainder in fee cannot extend to those daughters for they are proximae consanguinitatis which does clearly exclude his own sons and daughters for they cannot properly be termed to be of consanguinity of the blood of the father as it is said in Sir William Herberts Case Cooks Rep. 3. that filius est pars patris and this is proved by the usual pleading of a Descent for if the Plea be by any except son or daughter the form is to say That the Land descends to him as Cosin and Heir and shall shew how but if by the son or daughter then to plead as before And 30 Assis 47. Land was devised to one for life the remainder to another for life the remainder propinquioribus haeredibus de sanguine puerorum of the Devisor there it is agreed that the sons and daughters are excluded by that Devise And so here in this Case neither William the son nor any of the daughters of the Devisor can take any thing by this Devise for they cannot be said de Consanguinitate de sanguine of the Devisor but the Issues of the Children of the Devisor are comprized within these words And then I conceive that the limitation being in the singular number viz. proximo consanguinitat all the issues of those Children shall not take but one onely and that as I conceive shall be the eldest son of the eldest daughter of the Devisor which was John Periman father of the Lessor of the Plaintiff as in the 20 H. 6. 23. In an Account supposing the Defendant to be his Receivor from the Feast of St. Michael it shall be taken to be the principal Feast of St. Michael the Archangel and not the Feast of St. Michael in Monte Teneb And 13 H 4. 4. 21 H. 68. 37 H. 6. 29. If father and son be of one name scil of J. S. If J. S. be named generally in a Writ Recovery or Deed it shall be intended the father for that he is most worthy And so Pladwels Case in this Court Mich. 38 and 39 Eliz. If a woman hath a Bastard and two legal issues and Land be given to one for life the remainder to the eldest issue of the woman the eldest legal issue shall take and not the bastard although he be the eldest issue for general words shall always be taken in the most worthy sence And so here the Devisor did dispose of his Estate to Joan the younger rendering Rent to William his son the remainder to William in Tail the remainder to two of his daughters scil to Elizabeth and Mary for life the remainder proxim consanguin c. in fee By which words it is apparent that the Devisor intended that for the default of the issues of William and after the death of Elizabeth and Mary the Estate should remain to one who was next of blood to him and that is John Periman the eldest son of his eldest daughter But admitting that all the issues of the daughters shall be in equal degree to take by this remainder as well as the eldest son of Joan the eldest daughter yet I conceive that those daughters who had an Estate devised to them by Will are excluded Cooks 8 Rep. 95. B. Always the intention of the Devisor expressed in his Will is the best Expositor and Director of his words and therefore if Land be devised to one in perpetuum this shall pass a fee although it be otherwise in a Grant So if one deviseth Land to another to dispose of or sell at his pleasure this is a fee to the Devisee Litt. 133. 19 H. 8 9. B. And so in our Case the intent of the Devisor appears to dispose of his Land among his Children and their issues as in Trin. 38 Eliz. Ewre and Heydons Case Heydon was seised of a Messuage in D and of three houses and certain Land in Watford did devise his Messuage in D and all his Land in Watford it was judged the houses in Watford did not pass in regard of the express mentioning the houses in D. and this was affirmed in a Writ of Error Edmund Meskin against John Hickford Administrator of Henry Machin IN an Audita Querela because that the 11 Ed. 1. it was Enacted That in regard that Merchants which heretofore had lent their goods to divers persons were fallen into poverty because they had not such speedy remedy provided for them for the Recovery of their Debts Ac ratione inde multi Mercatores desistebant venire in hanc terram cum Merchandizis
against Humphrey Bigges And Manwood fol. 1. A Forest is a certain Territory of Ground priviledged for wild Beasts and Fowles of the Forest to rest and abide in the safe protection of the King for his Princely delight and pleasure and doth consist of four things 1. Vert. 2. Venison 3. Particular Laws and Priviledges 4. Certain Officers But by this pretence of the Defendant the Forest of the King is priviledged for wild Beasts to rest in protection of the King but they are subject to being destroyed by the Defendant for by such pretence none can enter there but he or his Keepers And I conceive that no body can pretend to have any profit or pleasure in the Forest which tends to the destruction of the Forest and that is the reason that one cannot prescribe to have Common in a Forest for Sheep Geese Goats or Hoggs for to suffer them to Common there is Ad magnum nocumentum ferarum forestae and such a prescription the Defendant maketh which is not only Ad magnum nocumentum but to the utter destruction of the Forest And if it be objected that this Park claimed by the Defendant is but a little part of the Forest this is no answer for as in the Case of a Common no man may prescribe to have Sheep c. in the Forest so cannot he in any part of the Forest and if the Defendant may prescribe to have such an irregular Park in part of the Forest so may others claim such like prescriptions in other parts of the Forest and so the King shall lose all the Franchise of his Forest and the Defendant may make his Fence or Ditch so low without-side and so high within that the Kings Deer cannot get out again when they are come in and so this Park shall be in the nature of a Trap to catch the Kings Deer And further he that will prescribe to have any common profit or pleasure in the Freehold or Inheritance of another ought to make his prescription in such manner so that he must leave the residue of the profits to the Owner and cannot utterly exclude the Owner and therefore if one doth prescribe to have all the Herbage Pannage and Profits of the Land of I. S. no man can conceive that this prescription is good Neither can a Commoner prescribe that the Lord of the Soile cannot put in any Cattell into the Land But in our case the very Franchise of the Kings Forest doth consist of Vert Venison Lands and Officers of the Forest for the King may have a Forest although he hath no Land there And in the Commentaries 332. If a Mannor within the Forest of Waltham do escheat to the King and the King grants the Mannor to one in fee yet shall not he have the liberty of the Forest And the same Law is where the King grants all the Land which he hath in the Forest But notwithstanding I agree that one may have a Park within a Forest by prescription or by grant but then the same ought to be kept so inclosed that the Beasts of the Forest cannot enter into the Park which if not done it is a forfeiture of the liberty of the Park and so it is if he have a Salterie or Deer-leap for the nature of a Park is to be inclosed and in the 10. H. 7. 6. it is said that a Park consists of Soile Inclosure and Game and in the 15. Ed. 3. closure and game And in the 15 Edw. the 3. Thomas Earl of Lancaster Lord of a Forest did grant leave to one John Harrington to make a Park within the said Forest and there it is adjudged that if the Grantee does so sleightly inclose the Park so that the Forest-beasts may get in there that it is a forfeiture and the Lord of the Forest may enter and take the Deer But by the pretence of the Defendant the King shall not have so much power in this Land being in the midst of the Forest as he hath in the Lands of any of his Subjects which do lie without the Forest for if Forest Beasts stray or wander into the Land of a Subject out of the Forest the Foresters may enter into this Land and rechase them into the Forest again Crocker against Kelsey HVsband and Wife Tenants in Tail of the Gift of the Husband the remainder to the Husband in fee The Husband dyes the Son and Heir of the Husband and Wife does levy a Fine with proclamations to the use of him and his Heirs the Wife does let a Lease of the Land for 21 years and dyes the Son deviseth his Land to E and his Heirs and dyes And Whether this Lease made by the Wife were good to binde the Devisee was the Question And I conceive that the Lease is good For although that by the Fine the Estate-tail is barred as to the Conusor and all his issues yet does the Wife remain Tenant in Tail as before and therefore this Lease made by her is a good Estate derived out of her Estate-tail and shall binde all except the issues in Tail who may claim per formam Doni And so is it in the 33 H. 8. Dyer 51. B. Tenant in Tail before the Statute of the 27 H. 8. does make a Feoffment to the use of himself in fee and then he and his Feoffees make a Lease for years rendering Rent and then is the Statute made the Tenant in Tail dyes and then the issue aliens by Fine before any entry or receit of the Rent and holden by all the Iustices except Sanders that the Alienee shall not avoyd this but otherwise of a Rent granted And suppose the Fine had not been levyed by the issue he shall not avoyd the Lease without entry and if he had aliened after the death of his Mother and before entry the Alienee should never avoyd the Lease And in the 29 Assis 51. and the Comment 557. Tenant in Tail acknowledgeth a Statute-Merchant the issue is attaint of Felony and pardoned the Tenant in Tail dyes the issue enters and the Conusee sues out Execution And because the issue was disabled to inherit the Estate-tail therefore he had it as an Occupant and so it was subject to the Execution And although the remainder in Fee does pass by way of interest by the Fine yet that cannot come in possession so long as any issue in Tail is living and therefore if a stranger had entered after the death of the Wife the Son could not have had a Formedon in the remainder for that must suppose the death of the Donees in Tail without issue the which cannot be in our Case Comment 560. Austens Case Sir Thomas Wyat Tenant in Tail of the Gift of the King made a Lease for years rendering Rent and dyed Sir Thomas his son accepts the Rent and after was attaint of Treason and executed having issue and adjudged that the King should have the Land in point of Reverter discharged of the Lease
pursue their claim by entry or action within five years next after the Proclamations and saving such Action Right Title Claim and Interest as first Shall grow remain descend or come after the Fine and proclamations by force of any Gift in Tail or by any other course and matter had and made before the said Fine levied so as they pursue within five years c. By which it appears that nothing is saved to the strangers but rights actions and interests arising by force of any cause or matter before the Fine and therefore nothing is barred by the Statute but former rights for what ever right is barred as to the Privies is saved to the strangers so as they pursue their claim within c. Sir Richard Shuttleworths Case between Barton and Lever 37 Eliz. Tenant in Tail levied an erronious Fine with Proclamations and then as Vouchee did suffer an erronious Recovery and died the Issue brought a writ of Error to reverse the Fine the Defendant pleaded the recovery afterwards and the Plaintiff to maintain the writ did alledge a default in the Recovery whereby he conceived the same to be void but resolved that it was but voidable by a writ of Error and therefore so long as it was in force the Issue was barred to reverse the Fine And therefore it was agreed there that the Issue ought first to reverse the Recovery by writ of Error and then he may reverse the Fine And so in our Case if the Plaintiffs should be barred in the writ of Error by the Fine they shall be without remedy although that the Fine be erroneous as I conceive it to be for if they bring a writ of Error to reverse the Fine first the Recovery although it be erroneous will be a clear Bar to them as it is adjudged in the said Case of Burton and Lever 7 H. 4. 40. a. One brought a writ of Error to reverse an Outlawry the Attorney said he was outlawed at the Suit of another Hulls said there that he could not be received for when one is to adnull an Outlawry he shall not be disabled by another Outlawry although he be twenty â—imes outlawed for then it will follow that there shall be delay infinite 26 Ed. 3. 66. Tenant in ancient Demesne levies a Fine at the Common Law and after does levy another and the Queen being seignioresse of the Mannor did bring a Writ of deceit to reverse one of them she shal not be barred by the other especially by the first to reverse the second And as to the Warranty 2. Matter of the Bar. I conceive that it is no Bar for many reasons 1. Because Warranties do bind only Rights and Actions which are in esse at the time of the warranty made and not Rights and Actions which do accrue after the Warranty created but this Writ of Error is given to the Plaintiffs in respect of the erroneous Recovery which wâ—s suffered after the creation of the warranty and therefore the warranty is no Bar to the Plaintiffs to have this writ of Error 30 H. 8. Dyer 42. B. All the Iustices did agree that when a man does bind him and his Heirs to warranty they are not bound to warrant new Titles of any Actions accrued since the warranty but only such Actions as are in esse at the time of the warranty made 12 Assise 41. The Tenant in a Praecipe quod reddat made a Feoffment hanging the writ and after the Demandant had recovered by erroneous Iudgment notwithstanding that the Feoffment had excluded the Tenant from his Right to the Land yet this shall not exclude him from his writ of Error which is accrued to him since the Iudgment given after the Feoffment Vide 18 19 Eliz Dyer 353. But it may be objected that this warranty shall bind the Right of the Plaintiffs to the Land for although the Recovery be reversed Object yet the Plaintiffs shall be put to their Formedon to recover this Land in which they shall be bâ—rred by this warranty and so it shall be in vaine for them to reverse the recovery for by the warranty they shall be barred to have the Land I answer That notwithstanding the Collaterall warranty Answer yet a Right doth remain in the Plaintiffs which is bound by the warranty which Right is taken away from the Plaintiffs by this Recovery by which the Law would have given to them a Remedy which is by writ of Error to be restored to their Right for a collaterall warranty doth not extinguish the right of him who is bound by the warranty but only does bind the Right for the time that the warranty remains undefeated and this is proved by many Authorities 34 Ed. 3. Droit 29. If the Tenant in a writ of Right hath collaterall warranty of the Ancestor of the Demandant he ought to plead it and not to conclude upon the Right for if he conclude upon the Right it shall be found against him because the warranty doth not give or extinguish the Right but only binds it 43 Assise 44. A collaterall warranty may be defeated by a Deed of Defeasance made after the creation of the warranty by which it appears that the Right is not extinguished for if so it could not be revived by the Defeasance and with this agrees 43 Ed. 3. 20. Earle of Staffords Case 19 H. 6 59. B. Fortescue A collaterall warranty does not give Right for if Land be given to one and the Heirs Males of his body and he hath two Sons and doth alien and the collaterall Ancestor to the Son doth release with warranty to the Alinee and dies and the Donee dies now is the eldest Son barred but if he die without Issue Male leaving Issue a Daughter the younger Son shall not be barred by the warranty 24 H. 8. B. Formedon 18. If Tenant in Tail hath two Sons by severall venters and dies and the Ancestor collaterall of the elder Son doth release with warranty and dies without Issue and the elder Son dies without Issue the younger Son shall recover by a Formedon because he is not Heir to the warranty And Littleton 160. B. Tenant in Taile hath three Sons and discontinues the second Son Releases to the Discontinuee with warranty the Tenant in Taile and the second Son dies now is the eldest Son barred because the warranty is collaterall to him but if he die without Issue the younger may have a Formedon and shall not be barred by the warranty because that the warranty as to him is lineall and to this purpose is the 8. of Rich. 2. Warranties 101. By which Book it does appear that the Estate-tail is not extinct by the warranty for if it could be so it can never be revived again This Warranty is executed and determined for it was made to the Conusees against whom the Writ of Entry whereupon this Recovery was had was brought and they did vouch to Warranty Thomas Lea and Katherine his wife who made
James of a house in the Parish of St. Mary Abchurch in the Ward of Candlewick-street Habendum from Michaelm last past for three years and layd the Ejectment to be the 28 Octob. in the same year The Defendant pleaded Not guilty And the Iury found that William Say was seised in Fee of the said Messuage and of two other Messuages in the Parish of St. Johns in Walbrook London and held them in Socage And that the 8 Octob. 1562. the said William having issue Francis his Son and Margaret Agnes and Alice by his Will in writing did devise the said Messuage in these words I bequeath to Francis my Son all my three Houses after the death of my Wife Barbara and his Mother and if Margaret Agnes and Alice and either of them do out-live their Mother and their Brother Francis and his Heirs then they to enjoy the three Houses for their lives and the three Houses then I give freely to my Sisters Sons Iohn Wittinbury and Roger Wittinbury and they to pay unto the Wardens of the Batchelors Company of the Merchant-Taylors 6 l. 10 s. yearly to be given to the poor and needy Brethren of the same Company for ever and if the said Iohn and Roger and their Successors do deny the said payment of 6 l. 10 s. it shall be lawful that the said Wardens to enter into the three Houses and to discharge them for ever William Say the Devisor dyes Barbara enters Francis Agnes and Alice dye without issue Barbara dyes Margaret enters John Wittinbury dyes without issue Roger Wittinbury dyes without issue and the Lessor is Cosin and Heir to him viz. Son of Margaret Pierson Sister of the said Roger. The 18 of August 13 Jacob. Margaret dyed seised having issue John Savage her Son and Heir who entered which Son the 17 February 13 Jacob. did infeoff Edward Jackson in Fee who the second of September 13 Jacob did infeoff Richard Slydhurst in Fee who the third of September 13 Jacob. did make the Lease to the Defendant for four years who entered upon whom the Lessor did enter and made the Lease to the Plaintiff upon whom the Defendant did enter And prayed the Opinion of the Court c. And I conceive Iudgment ought to be given for the Defendant But first as to the Question that hath been made scil What Estate John and Roger Wittingbury shall take if they shall take any Estate at all by this Will I shall not argue for I agree that if they have any Estate it is a Fee-simple in respect of the continual and perpetual charge imposed upon them for the payment of 6 l. 10 s. to the Wardens c. for that is to have a perpetual continuance in respect of the persons to whom it is to be payd scil the Poor And also the persons to pay are the two Wittingburies and their successors who in the Exposition of the Will shall be taken for their Heirs and Assigns and also in respect of the limitation of the payment scil for ever which in a Will makes a Fee-simple and â—â—â—â—s much as the charge is to continue for ever it follows also that the Estate ought to continue for without the Estate the charge cannot be But I conceive that John and Roger shall take nothing by this will or at least that they shall take but a future Estate to begin after the death of Francis without Heir and then their time will never come for John Savage under whom the Defendant doth derive his Estate is Heire to Francis and therefore the Plaintiff nor his Lessor being Heire to Robert Wittingb the Survivor cannot have this house And to prove this here is an Estate limited by expresse words to Francis and his Heirs and no apparent intent by the Devisor that the word Heirs shall be restrained to the Heirs of his body unlesse by reason of the limitation of the Remainders afterwards which cannot be as hath been said if Francis had a Fee-simple But as to this I say that the same reason may be given when a man deviseth Land to A. and his Heires and if he die without Heire that it shall remain to B. and his Heires in which case if the Devise to A. shall be restrained to an Estate in Taile the Remainder to be is good but no such intent can be collected against expresse words and therefore the Remainder is utterly void as in 19 H. 8. 8. B. where the Rule is given that when the intent of the Testator does not agree with the Law his intent shall be void and this is a certain Rule And West 2. cap. 1. where it is provided Quod voluntas donatoris observetur yet it ought alwaies to agree with the Rules of Law as is proved by the 8. Assise 33. where was a Gift in Taile to two and if one dies that the Survivor shall have all to him and the heirs of his body now doth the Law say that they have severall Inheritances but the will of the Donor was that the Survivor should have all which being repugnant to the Rule of Law was adjudged to be a void Clause 35 H. 8. 6. Estates 75. Estates given to the husband and wife for their lives the Remainder to the heires of their bodies is an Estate-taile executed notwithstanding the expresse will of the Donor because an Estate for life and of Inheritance cannot be distinct in one and the same person without a mean Estate in another So that in Wills if the intent be against Law they are void And so is it if the intent be ambiguous and not manifestly to be collected out of the words of the Will And in our Case no manifest intent does appear to make the Estate of Francis an Estate in Tail Câ—ke 6. Rep. Wildes Case One devised land to A. for life the Remainder to B. in Taile the Remainder to R. and his wife and after their deaths to their Children who then had two Children the Devisor dies and A. dies and B. dies without Issue and and it was adjudged that the Children of R. and his wife should have only an Estate for life because that by Iudgment of Law they have but an Estate for life and if R. and his wife should have an Estate in Taile it ought to be by the intent of the Devisor which intent ought to be manifest and certain and so expressed in the Will and in this case no such intent does appear for perhaps his intent was to accord with the Rule of Law 15 16 Eliz. 9. a. A. having three Houses having three Sons and a Daughter did devise to B. his first Son a House paying ten pounds to his Sister and he to enter after the death of the wife of the Devisor and did devise to his second Son another Houses paying to the Daughter ten pounds and he to enter at the age of one and twenty years and did devise the third House to the third Son paying ten pounds to his
favourably then a Plea yet is it all one for I agree that a Verdict need not be so formall as a Plea but if it wants substance either on the one party or the other this shall prejudice the party as much as if there had been a pleading for the Court cannot give Iudgment without some matter found and therefore for as much as in our Case the life of Sir Richard makes for the Defendant and all the validity of his Lease depends thereon he ought to prove by evidence that Sir Richard was alive so that the Iury might have found it and because it was not so found the Court will not intend that he is alive and therefore he shall be taken to be dead and so his confirmation is finished But admitting it shall be intended that he is alive yet I conceive that immediatly upon the death of Valentine his Estate which he had by the limitation of the use is determined and vanisht and he is remitted to his Estate-taile and then his confirmation as I have already proved which doth charge the Estate which he hath by limitation of the use cannot endure Yet I will agree that if Tenant in Taile makes a Feoffment to the use of himself for life and after to the use of his Issue being within age and dies that his Issue shall not be remitted as it is resolved in the Comment 111. Townsends Case and 207. Standbridge and Morgans Case But the diversity is when the Estate-taile is discontinued wherby the Entry of the Issue is taken away and he is put to his Formedon there he shall not be admitted for the limitation of a use to him for if he will take the Estate according to the use he ought to take it in the same manner as he had the use but when no discontinuance is made of the Estate-taile it is otherwise as in Townsends Case Comment 111. Where Amy the wife of Roger Townsend was Tenant in Taile and the Husband the 29. of H. 8. made a Feoffment to the use of himself and his wife for life the Remainder to the use of their eldest Son for life with divers Remainders over the husband and wife died and resolved that neither the wife nor the Son are remitted and the reason there was because that the Feoffment being made before the Statute of 32. of H. 8. was a Discontinuance to the purging of which the wife was driven to her Cui in vita and cannot avoid this by Entry as she might after the Statute of 32 H. 8. and therefore it is there agreed that if a Disseisor make a Feoffment to the use of the Disseisee and he enters he is remitted because his Entry was congeable And so Dyer 191. 2 3 Eliz. Land is given to the husband and wife and to the Heirs of the body of the husband the husband after the Statute of 32 H. 8. makes a Feoffment to the use of himself and his wife for life the Remainder to the first Son for life the Remainder to the right heirs of the husband the husband dies and it was resolved in the Court of Wards that the wife should be remitted notwithstanding the Statute of Vses because that her Entry was congeable and so 11 H. 7. 12. a. If the son disseiseth the Disseisor of his Father and the Father dies now forasmuch as that a right of Entry was in the Father which by his death doth descend to the Son he shall be remitted notwithstanding that he came to the possession by his own proper and wrongfull Act which is as strong against a Remitter as an Agreement is to a Vse And so if the Son and another doth disseise the Father and the Father dies the Son is remitted and shall put out his companion And then Sir Richard being remitted the Confirmation as I have shewed before being but a charge upon the Advowson is meerly determined and so Littleton 148. B. If Tenant in Taile enfeoffs his Issue within age who at full age doth grant a Rent-charge or a Common and the Father dies the Issue shall hold discharged and 40 Ed. 3. 448. If Tenant enfeoff a stranger who grants a Rent and enfeoffs his Son within age and the Tenant in Taile dies the Issue shall hold the Land discharged and the same Law by Catesby in 12 Ed. 4. 13. b. If Tenant in Taile after Discontinuance does repurchase the Land and dies and the reason is because the Statute that was charged is vanisht And although that the opinion of Bromley 33 H. 8. Dyer 51. b. be that the Issue in such case shall not avoid a Lease for years made by him before his Remitter yet the case of a Rent is there also agreed that it is determined by the Remitter and the same Law is in Ioynt-tenancy if one doth make a Lease for years so that he doth dispose of the possession this shall bind the Survivor but otherwise if he charges the Land with a Rent or other thing and so is it where a husband hath a term in right of his wife as in 7 H. 9. 2. 3. And as to the last part of the Case so If the Fine levied by Valentine the Son and Heir of Sir Richard Knightley doth give any force or strength to the confirmation or not and I conceive that it doth not for three causes First the Fine is not with any Proclamations so that it is no bar to the Intail and therefore it is no more then a bare Grant of a Tenant in Tail Secondly As this Fine is found it cannot be intended to be levied by Valentine Knightley the Son of Sir Richard but by a stranger of that name for it is first found that the 27 Eliz. Sir Richard did grant the Advowson to Valentine Knightley then his Son and Heir apparent and that the 36 Eliz. a Fine was levied between B. T. and H. Y. Plaintiffs and Valentine Knightley Esquire Deforceator wihout saying the aforesaid and therefore I conceive that Valentine Knightley Esquire who levied the Fine cannot be intended to be Valentine Knightley Son and Heir of Sir Richard and yet I agree the Case of 21 H. 7. 30. That when Westminster is put into a Plea and then a matter is alledged apud Westmonasterium without praedict it shall be intended the same place but when another addition is given to the person or place it is otherwise and therefore in the second place if it be sayd apud Westmonasterium super Thamesin it shall not be taken for one place 5 Ed. 6. Dyer New Book of Entries 650. 35 36 Eliz In the Kings Bench Vpon a Trespasse for breaking his Close and breaking and spoyling two Gates and three perches of Hedge the Defendants prescribed to go there in perambulation upon which there was a demur c. and adjudged for the Plaintiff 1. Because that he ought to alledge this by custome and not by prescription 2. Because the Bar was that the Plaintiff had obstructed the
disproof of the second And as to this I conceive that it is a Rule infallible in the exposition of Deeds that when two clauses are contained in a Deed the one contradicting the other the first shall be good and the last voyd 2 Ed. 2. Feoffments and Deeds 94. One gave Land to R. with A. his daughter in Frank-marriage habendum to R. and his Heirs with warranty to him and his Heirs they dyed and their Son brought a Mortdancestor and because the first clause was in Frank-marriage and the other in Fee the Iustices doubted to which of them they should have regard and at last adjudged that when there were several or two clauses in a Deed repugnant or of divers natures that more regard ought to be taken to the first then to the last But otherwise in Wills for there the last part of a Will shall controul the first as if one first doth devise Land to A. and after devise this to another and it is to both in fee yet the last devise shall stand 19 Ed. 3. Tayl 1. In a Writ of Ad Terminum qui praeteriit the Tenant pleaded a Gift in Frank-marriage to his Father and Mother by Deed which was thus that is to say habendum to them for their lives and resolved that the Gift in Frank-marriage being first that it is good and the Habendum being contrary is voyd and there the same rule is given where two clauses are contained in a Deed and the one is contrary to the other And in Tracy and Throgmortons Case Comment 153. It is a ground in Law that if the Habendum in a Deed be contrary to the Estate given by the premisses the Habendum shall be voyd as if a Grant be made to one and to his Heirs Habendum for life the Habendum is voyd 13 H. 7. 23. and 24. and Dyer 272. A Termor does grant his term to another Habendum after the death of the Grantor adjudged that the Habendum is voyd And 2 Ed. 4. If one release all his right in B. acre which he purchased of I. S. and in truth he did not purchase it of I. S. but of another or else had it by descent yet is the release good for the first clause shall stand and the other shall be voyd And Dyer 292. b. One having a Close called Callis lying in Hurst in the County of Wilts does make a Lease of his Close called Callis in the County of Berks and adjudged that it shall pass for the first words shall be and the other shall be voyd And Dyer 32 H. 847. 6. a Lease was made for life without impeachment of waste and if it happen him to make waste that then it shall be lawful for the Lessor to enter Shelley conceived there that the condition was voyd because it was repugnant to the former Grant but some conceived that the Grant shall be intended that he shall not be punished by action Whereupon I collect that if the condition in the last clause cannot agree with the first the last is voyd and so Dyer 56. 6. If I release to A. all actions which I. S. hath against him the Release is good and the words viz. which I. S. hath against him are voyd for by words subsequent a Deed may be qualified and abridged but not destroyed And as to the third manner of exposition viz. to construe all the words of the limitation as well the first as the last to be voyd There is a Rule in Law that when words in a Deed Plea or Record are so repugnant that the true sence thereof cannot be known to the Court what is to be judged or construed upon them that all shall be taken to be voyd as appears by divers Books 33 H. 6. 26. In an action on the Case wherein the Writ was that whereas the Plaintiff had a way by reason of his tenure the Defendant had levyed a Wall whereby his way was stopped and there Prisot said that the Writ was not good for the repugnancy and 9 H. 7. 3. a. One pleaded Null tiel Record hoc paratus est verificare per idem Recordum this was adjudged insufficient because the Plea is repugnant viz. the first part which is not a Record and the last that there is such a Record and Dyer 70. 5 Edw. 6. And so here if these two limitations in the begining of this Lease are so repugnant one to the other that they cannot consist together then both shall be adjudged voyd and then there being no certain time put for the beginning of the Lease the Lease shall begin presently as in 3 Ed. 6. 6. A man made a Lease for years to commence after the end of a Lease made to I. S. and in truth I. S. had no Lease the Lease shall begin presently And as to the fourth manner of exposition I conceive that these ambiguous words shall be construed if it may be that all may be good as to a reasonable exposition and that is that the 56 years shall begin from the 20 Decemb. 1 Eliz. but the Lease does not take effect in possession until the end of the other Lease for terminus annorum hath two significations scil one the time or number of the years and the other the Estate or interest of the term and therefore if one does grant his term the Estate does pass thereby and this diversity is taken and explained the 35 H. 8. 6. and in Cooks 1 Rep. Cheddingtons Case So that I conceive that the first words in the Habendum here ought to be applyed and referred to the time or number of years according to the first definition of the term and the last shall be applyed to the last definition and shall be taken onely as words explanatory put in for better caution by the Bishop to avoyd contention between the Lessees viz. That the last Lessee shall not meddle with the possession until the end of the first term and by this construction and no other may all the words agree together Dyer 9 Eliz. 261. 6. Abbot and Covent did make two Leases of two parcels of Land to two persons 1531. for 31 years and after the successor 1535. reciting both the Leases did make a new Lease to the other in these words Noveritis nos praedict Abb. c. dictis 31 annis finitis complet concessise to the Lessee the said Land holden from the day of the making of these presents termin praedict finitis until the end and term of 31 years from thence next following And the Iustices of the Common Bench held that it shall commence to take effect in possession at the end of the former term and not before and from the day of the making of these presents is but a declaring of the first sentence which is obscure to some intents and if it were not so exprest the Lessee shall have but a Lease for four years which was not the intent of the parties as it should seem but the
profits thereof as in Colliers Case 6 Rep. where one devised Land to his Wife and with the profits that she should bring up his Daughter and that after her death the Estate should remain to his Brother paying to other persons 40 s. and the value of the Land was 3 l. per annum and agreed there that the Brother had a Fee-simple and this diversity was resolved in that case That if the Devise had been to the Brother to the intent that he should maintain his Daughter with the profits or pay out of the profits thereof so much to one and so much to another that this is but an Estate for life for he is sure to have no loss so is it if it be to pay certain sums yearly under the value of the Land for he may pay it out of the profits and is sure to be no loser And this is in effect our very case For first the Charge is imposed for Dower which cannot be intended to exceed the annual value of the Land Secondly it is to be payd out of the Land and therefore there is no charge imposed upon the person of the Devisee but onely upon the Land devised to him so that he takes the Land with this charge and when his Estate determines in the Land yet the charge does always remain upon the Land and the Devisee is discharged thereof and therefore this charge may as well be if he have an Estate for life as if he have a Fee-simple And as to that in Borastons Case 3 Rep. fo 20. b. between W. Allock and Hammond where a Copyholder devised his Land paying to his Daughter and to each of his younger Sons 40 s. within two years after his death and surrendered accordingly and dyed and agreed that the Devisee had an Estate in Fee although the annual profits exceeded the mony that was to be payd and the Reason is plain for it is not limited to be payd out of â—â—e Land or profits but is a payment in gross and it may happen that the Devisee may dye before he can receive so much of the profits And afterwards viz. Trinit 17 Jacob. All the Barons scil Tanfield Bromley and Denham delivered their Opinions severally That Henry and Michael Lock had an Estate onely for their lives because there is no express words in the Devise to make any greater Estate to pass and the condition or clause of the charge imposed by the Wtill does not necessarily imply that they should have a greater Estae then for life for such Estate may satisfie both these clauses as well as an Estate in Fee and the condition is more proper to be annext to an Estate for life then in Fee Judgment Wherefore they resolved That Iudgment should be given for the Plaintiffs but because Sir Thomas Muschamp one of the Plaintiffs dyed hanging the Action no Iudgment could be enter'd Trinit 16 Jacob. Wood against Searl and Jeo IN an Action of Trespass for that the Defendants the 16 of December 15 Jacob. ten Hides of Leather of the Plaintiffs amounting to the value of 10 l. at Tiverton did take and carry away ad damnum 20 l. c. The Defendants as to the force and arms pleaded Not guilty and as to the residue they said that the City of Exeter is and time out of minde was an ancient City and that within the said City there is and for all the said time was a Society of the Art of Cordwainers incorporate by the name of The Master Assistants Wardens and Commonalty of Cordwainers of the City of Exeter and that the said Master Assistants and Wardens have used for all the said time to make By-laws for the government and profit of the said Society and to impose reasonable Fines and punishments upon the breakers thereof And that the 24 of July 44 Elizab. the Master Assistants and Wardens did ordain That no person Burgess or Foreigner not being a Brother of the said Society should make sell or offer to sell or procure to be sold within the aforesaid City of Exon the County or liberty thereof any Boots Shooes Pantofles Pumps or Startops or any other wares belonging to the said Art under pain of forfeiting to the said Master and Wardens for the time being for every offence such sum not exceeding 40 s. as shall be assessed by the Master Wardens and Assistants or the greater part of them and that if any person of the said Society or any other exercising the said Art or any thing concerning the same inhabiting within the said City or the County or liberty of the same who shall break the said Order shall refuse to pay such sum as shall be assessed upon true proof first thereof had of the breach of the said Order that it shall be lawful for the said Master Assistants and Wardens or any three of them taking with them a Constable Bayliff or Serjeant of the Mace or other fit Officer of the Kings to enter into the House Booth Shop Warehouse or Cellar of such person so refusing and there by the discretion of the said Master Assistants and Wardens or the greater part of them to distrain any of their goods then being within the said Houses c. for the said sums forfeited so that it doth not exceed the treble value of the sums forfeited and to detain the same Yet nevertheless if the owner within thirty days shall satisfie the penalty then they shall redeliver the goods And if he doth not satisfie that then the said Master Wardens and Assistants or the greater part of them have power to appraise the goods taken by the oath of six persons and thereupon to sell them and to restore the surplussage to the owner And the Defendants said That at the said time in which c. and time out of minde there was and ought to be a Master two Wardens and twelve Assistants of the said Society within the said City and no more and that the said Edward the sixth of December and before and ever since was Master and the said William and Thomas Payn were Wardens That the 29 of July 15 Jacob. the Plaintiff at the said City then being an Inhabitant within the said City and no Brother of the said Society did make divers Shooes and them there to sale did expose and that the said Master and Wardens and one J. G. T. K. R. J. W. T. K. T. C.G. and J. G. being seven and the major part of the said Assistants the thirtieth of July the 15 Jacob. did impose upon the Plaintiff 33 s. 4. d. for the said offence And they said further that the Plaintiff committed the like offence the seventh of October 15 Jacob. and 33 s. 4 d. imposed by the Master Wardens and Assistants and the like offence the 20 of Novemb. 15 Jacob. and 33 s. 4 d. imposed by the Master Wardens and eight of the Assistants and the like offence the second of December 15 Jacob. and 33 s. 4