shall not alien or sell the Lands given to her from the Heirs Male of her Body lawfully to be begotten but to remain upon default of such Issue to W. and the Heirs Males of his Body to be begotten according to the true intent and meaning of this my Will Dorothy Hopkins had Issue Richard who had Issue Henry who had Issue a Daughter now the Defendant The Question was Whether the Son of Dorothy did take an Estate Tail by this Will to him and to the Heirs of his Body in general or an Estate in Tail Male This Case was argued in Michaelmas Term 36 Car. II. And in the same Term a year afterwards by Council on both sides Those who argued for the Plaintiff held that the Son had an Estate in Tail Male and this seems plain by the intention of the Testator that if Dorothy had Issue Daughters they should have no benefit for no provision is made for any such by the Will and therefore the Daughter of her Son can have no Estate who is more remote to the Testator This is like the Case of Conveyances Turnam vers Cooper 2 Cro. 476. Poph. 138. id 25 Ass pl. 14. wherein the Habendum explains the generality of the precedent words as if Lands be given to Husband and Wife and to their Heirs habendum to them and the Heirs of their Bodies Remainder to them and the Survivor to hold of the chief Lord with Waranty to them and their Heirs this is an Estate Tail with a Feé expectant So it is here tho' the first words in the Will extend to Heirs which is general yet in the Memorandum 't is particular to Heirs Males and the words Heirs and Issues are of the same signification in a Will The Memorandum is a confirmation of the Will Ex parte Def. and the construction which hath been made of it is not only inconsistent with the Rules of Law but contrary to the intent of the Testator and against the express words of his Will Cases upon Wills are different from those which arise upon Deeds because in Conveyances subsequent words may be explanatory of the former but in Wills the first words of the Testator do usually guide those which follow As if Land be devised for Life Dyer 171 a. 1 And. 8. id Golds 16. Moor 593. Remainder to F. and the Heirs Males of his Body and if it happen that he dye without Heirs not saying Males the Remainder over in Tail this was held not to be a general Tail but an Estate in Tail Male therefore the Daughter of F. could not inherit Now to construe this to be an Estate Tail Male doth not only alter the Estate of the Sons of Dorothy but of the Issue of W. and nothing is mentioned in this Memorandum of the Limitation over to Jones so that the whole Will is altered by it But this Memorandum cannot enlarge the Estate of Dorothy because 't is inconsistent with the intention of the Testator who gave her only an Estate for Life by the Will but if she should have an Estate Tail she might by Fine and Recovery bar it and so alien it contrary to his express words Besides there is no Estate limited to Dorothy by this Memorandum and she having an express Estate for Life devised to her by the Will it shall never be enlarged by such doubtful words which follow As where a Man had 100 Acres of Land 2 Leon. 226. Moor 593. called by a particular Name and usually occupied with a House which House he lett to S. with 40 Acres parcel of that Land and then devised the House and all the Lands called by that particular Name c. to his Wife Adjudged she should only have the House and the 40 Acres and that the Devise shall not be extended by implication to the other sixty Acres So that to make the design of this Will and Memorandum to be consistent the latter words must be construed only to illustrate the meaning of the Testator in the former Paragraph of the Will and must be taken as a farther declaration of his intention Viz. that the Heirs Males mentioned in the Memorandum is only a description of the Persons named in the Will The Law doth usually regard the intention of the Testator and will not imply any contradictions in his Bequests The Court was of Opinion that it was a plain Case Judicium for in the Limitation 't is clear that 't is a general Tail and it doth not follow that the Testator did not design any thing for his Grandaughters because no provision was made for Daughters For where an Estate is entailed upon the Heirs of a Man's Body if he hath a Son and a Daughter and the Son hath Issue a Daughter the Estate will go to her and not to the Aunt Now this Memorandum doth not come to make any alteration in the Limitation because it directs that the Estate shall go according to the true intent and meaning of the Will and is rather like a Proviso than an Habendum in a Deed. And therefore Iudgment was given accordingly for the Defendant DE Term. Sancti Mich. Anno 1 Jac. II. in Banco Regis 1685. Hicks versus Gore ON Tuesday the 17th day of November there was a Trial at the Barr by a Somerset-Shire Iury in Ejectment The Case was thus The Plaintiff claimed the Lands by virtue of the Statute of 4 5 Ph. Mar. cap. 8. by which 't is enacted That it shall not be lawful for any person to take away any Maid or Woman Child unmarried and within the Age of sixteen years from the Parents or Guardian in Soccage and that if any Woman Child or Maiden being above the Age of twelve years and under the Age of sixteen do at any time assent or agree to such person that shall make any Contract of Matrimony contrary to the Form of the Act that then the next of Kin of such Woman Child or Maid to whom the Inheritance should descend return or come after the decease of the same Woman Child or Maid shall from the time of such Assent and Agreement have hold and enjoy all such Lands Tenements and Hereditaments as the said Woman Child or Maid had in Possession Reversion or Remainder at the time of such Assent and Agreement during the Life of such person that shall so contract Matrimony and after the decease of such person so contracting Matrimony that then the said Land c. shall descend revert remain and come to such person or persons as they should have done in case this Act had never been made other than him only that so shall contract Matrimony Benjamin Tibboth being seised in Fee of the Lands in question to the value of 700 l. per annum had Issue a Son and four Daughters the Son had Issue Ruth his only Daughter who was married to the Defendant Gore her Father died in the time of her Grandfather and her Mother
Daughters for the Testator having two Sons and four Daughters it cannot be collected by these words how they shall take and by consequence it cannot be an Estate Tail by implication Now suppose one of the Daughters should dye without Issue 't is uncertain who shall have her part and therefore there being no appointment in what order this Estate shall go it cannot be an Estate Tail and to maintain this Opinion this Case was cited One Collier was seised in Fee of three Houses 2 Cro. 655. Gilbert versus Witty and had Issue three Sons John Robert and Richard he devised to each of them a House in Fee Proviso if all my Children dye without Issue of their Bodies then the Houses to be to his Wife The two eldest Sons died without Issue the younger had Issue a Daughter who married the Lessor of the Plaintiff The Question was Whether by the death of the eldest Son without Issue there was a cross Remainder to Richard and the Heirs of his Body or whether the Wife shall take immediately or expect till after the Death of all the Sons without Issue And it was adjudged that the Wife shall take immediately and that there were no cross Remainders nor any Estate by implication because it was a devise to them severally by express limitation So that if no Estate tail ariseth to the Daughters in this Case by implication Cro. Eliz. Taylor versus Sawyer then 't is no more than a devise to his Issue which extends to them all and gives only an Estate for Life For the Defendant it was argued Ex parte Def. that the Sons and Daughters have no Estate Tail by implication It was agreed that Nicholas had only an Estate for Life and that the word Estate in this case means the Houses and not the Interest in them 'T is true there is no express Limitation of any Estate to them but there is an express determination of it Now if this be not an Estate Tail by implication then the words dying without Issue are void A devise to his Son More 127. and if he dye not having a Son then 't is devised over This is an Estate tail in Remainder It cannot be a doubt who shall take first for the Daughters shall take it Dyer 333. and after them as 't is most natural the eldest Son for where there is the same proximity of Blood the Estate shall go to the eldest As for instance Hob. 33. one Chapman being seised in Fee of two Houses and having three Brothers devised the House which A. dwelt in to his said three Brothers and the House in which his Brother Thomas Chapman did dwell he devised to the said Thomas paying so much c. or else to remain to the Family of the Testator provided that the Houses be not sold but go to the next of the Males and the blood of the Males Thomas died without Issue the eldest of the two surviving Brothers had Issue a Daughter and died the Question was whether that Daughter or the youngest Brother of the Testator should have the House It was adjudged that the Daughter should have it in tail For the Proviso that the Houses be not sold c. made it a tail and the words viz. to remain to the Family must be intended to the eldest If this be not an Estate tail then the Devise over to Anne Warner is void As to the Case of Gilbert and Witty that moves upon another reason for there every one took by a distinct and separate Limitation Curia In that Case all the Estate was limited distinctly to the three Sons but in this 't is otherwise for the Testator had two Sons and no Estate was limited to one of them before then he saith If all my Sons and Daughters dye without Issue then c. And thus the Cases differ which creates the difficulty But no reason can be given why this Court should not construe Wills according to the Rules of Common Law where an Estate by implication is so incertain for when Men are sick and yet have a disposing power left they usually write Nonsense and the Iudges must rack their Brains to find out what is intended This cannot be an Estate tail in the Daughters and therefore the Heir must come in for his fourth part Iudgment for the Plaintiff Dixon versus Robinson THIS was a special Issue directed out of Chancery Wayhil Fair. and tried this day at the Bar by a Middlesex Iury. The Question was Whether Ballivus probi homines Burgenses Burgi de Andover in Hampshire had power to keep a Fair at Wayehil in any one place where they please the Bill being Exhibited to confine the Fair to a particular place which Fair was granted to them by Charter from Queen Elizabeth They who would have it confin'd to a certain place gave in Evidence that the Hospitaller of Ewelme in Oxfordshire was seised in Fee of the Manor of Rambridge within which Manor the place was where the Fair was always kept and that the Parson of Andover had Glebe there That this place was called Wayehil and that the profits did arise by Piccage and Stallage to the yearly value of 200 l. That it was an ancient Fair held there by Prescription before the Town of Andover had a Charter That upon the late Surrender of Charters the Town of Andover did likewise surrender and took a new Charter in which liberty was given to them to keep this Fair in what place they would That both the Hospitaller and Parson petitioned the King in Council and obtained an Order to Try where the Fair ought to be kept which was tried accordingly at the Exchequer Bar and a Verdict for the Parson Chief Justice If the Fair belongs to Andover they may chuse whether they will keep it at any place and that may create another Question Whether they may not forfeit this Franchise by disuser But certainly if the place be not limited by the King's Grant they may keep it where they please or rather where they can most conveniently and if it be so limited they may keep it in what part of such place they will Dawling versus Venman AN Action on the Case was brought against the Defendant Action for a Scandalous Affidavit in Chancery for making a Scandalous Affidavit in Chancery in which were these words Viz. Mr. Dawling is a Rogue and a Knave and I will make it out before my Lord Chancellor and I will have him in the Pillory Vpon not Guilty pleaded there was a Verdict for the Plaintiff and damages entire It was moved in arrest of Iudgment for that the truth of on Oath shall not be liable to a Trial in an Action on the Case for the Law intendeth every Oath to be true Before the Statute of 3 11 H. Cro. Eliz. 521 2 Cro. 607. Sid. 50. Hutt 11. 7. which gives power to examine Perjury there was not any Punishment at
Dorothy Margery survived and is since dead The Question was whether upon this Reservation the Beast of any person being upon the Land may be distreined for an Heriot Mr. Pollexfen argued that it could not because the words in the Reservation ought to be taken very strictly and not to be carryed farther than the plain expression Where words are doubtful they have been always expounded against the Lessor Cro. Eliz. 217. 2 Roll. Abr. 448. Latch 99. as if a Lease be made for years reserving a Rent durante termino to the Lessor his Executors or Assigns the Lessor dies his Heir shall not have the Rent because 't is reserved to the Executors But here is no room for any doubt upon these words for if a Lease for years be made in which there is a Covenant that the Lessee shall pay the Rent without any other words this determines upon the death of the Lessee So where a Lease was made for 99 years if A. B. C. 2 Rol. Abr. 451. Hetley 58. Cro. Car. 314. or any of them should so long live reserving Rent to him and his Executors and also at or upon the death of either his or their best Beast in the name of an Heriot provided that if B. or C. die living A. no Heriot shall be paid after their deaths A. assigns his Term and the Beast of the Assignee was taken for an Heriot but adjudged that it could not for the words his or their shall not be carried farther than to the persons named in the Limitation The Books that affirm that a Man may seize for an Heriot Service cannot be brought as Authorities in this Case because they are all upon Tenures between Lord and Tenant and not upon particular Reservations as this is The old Books say that if a Tenant by Fealty and Heriot-Service Broke tit Heriot 2. made his Executor and died that the Lord might seize the best Beast of his Tenant in the Hands of the Executor and if he could not find any Beast then he might distrain the Executor Plo. Com. 95. and the reason of this seizure was because immediately upon the death of the Tenant a Property was vested in the Lord but it was held always unreasonable to put him to distrain when he might seise And it is now held that for Heriot-Service the Lord may either distrain or seise but then if he makes a seisure Cro. Car. 260. Jones 300. it must be the very Beast of the Tenant but if he distrain he may take any persons Cattle upon the Land So that admitting this to be Law yet it proves nothing to this matter because such Services being by Tenure shall not be extended to those which are created within time of memory upon particular reservations for by those ancient Tenures the Lords had many Priviledges which cannot be upon Reservations Besides the seisures in those Cases were by the Lords who continued so to be at the very time of the seisure but in our Case the Lease is determined by the death of the last Life so the Priviledge is lost and then it must stand upon the particular words in the Deed. Sed adjornatur into the Exchequer Chamber the Iudges being divided in Opinion Vid. 2 Sand. 165. Shipley versus Chappel Pasch 3 Jac. Rot. 404. THE Plaintiff Shipley as Administrator of Hannah his Wife Condition of two parts in the disjunctive and one part becomes impossible to be done yet the other must be performed according to the subsequent matter brought an Action of Debt upon a Bond against Chappel an Attorny for 140 l. The Defendant craved Dyer of the Condition which was Viz. Whereas Hannah Goddard who was Wife to the Plaintiff and Thomas Chappel of Greys-Inn in the County of Middlesex are Coparceners according to the Common-Law of one House with the Appurtenances in Sheffeild in the possession of William White and whereas the said Hannah Goddard hath paid unto Thomas Chappel the Father for the use of his Son the Sum of 72 l. in consideration that the said Thomas Chappel the Son when he attains the Age of 21 years which will be about Midsomer next do by good Conveyance in the Law at the costs and charges of the said Hannah Goddard convey his said moiety of the said House with the Appurtenances unto her and her Heirs Now the Condition of this Obligation is such That if the said Thomas Chappel the Son shall at the Age of 21 years convey his said moiety of the said House or otherwise if the said Thomas Chappel the Father his Heirs Executors or Administrators shall pay or cause to be paid the sum of 72 l. with lawful Interest for the same unto the said Hannah Goddard her Executors Administrators or Assigns that then this Obligation to be void Then he pleaded that his Son Thomas Chappel was Coparcener with Hannah Goddard as Co-heires of Elizabeth Goddard that Thomas came of Age and that before that time Hannah died without Issue The Plaintiff replied that true it is that before Thomas Chappel the Son came of Age the said Hannah died without Issue of her Body that Elizabeth Goddard before the making of the said Bond died seised in Fee of the said Messuage but that she first married with one Malm Stacy by whom she had Issue Lydia that Malm her Husband died and Elizabeth married John Goddard by whom he had Issue Hannah their only Daughter and Heir that John Goddard died and that Lydia Stacy married the Defendant Thomas Chappel by whom he had Issue Thomas Chappel his Son that Lydia died in the life-time of Elizabeth that Thomas Chappel hath not paid the 72 l. to Hannah in her life time or to John Shipley after her death The Defendant demurred and the Plaintiff joyned in Demurrer The Question was since the word Heirs in the Condition being a word of Limitation and not of any designation of the person whether the death of Hannah Goddard before Chappel the Son came of Age and who was to make the Conveyance shall excuse the Defendant from the payment of the Mony Those who argued for the Defendant 5 Co. 21. b. chiefly relied upon Laughter's Case which was viz. Laughter and Rainsford were bound that if R. after marriage with G. together with the said G. shall sell a Messuage c. if then R. do or shall in his life-time purchase for the said G. and her Heirs and Assigns Lands of as good value as the Mony by him received by the said Sale or leave her as much Mony at his decease then c. G. died R. did not purchase Lands of an equal value with that he sold and upon Demurrer it was held that where a Condition consisteth of two parts in the disjunctive and both possible at the time of the Bond made and afterwards one is become impossible by the act of God there the Obligor is not bound to perform the other part because the Condition is made for
fearing that this Daughter might be stoln from her applies her self to my Lady Gore and entreats her to take this Daughter into her House which she did accordingly My Lady had a Son then in France she sent for him and married him to this Ruth she being then under the Age of sixteen years without the Consent of her Mother who was her Guardian The Question was whether this was a Forfeiture of her Estate during Life It was proved at the Trial that the Mother had made a Bargain with the Lessor of the Plaintiff that in case he recovered she should have 1000 l. and the Chirds of the Estate and therefore she was not admitted to be a Witness The Plaintiff could not prove any thing to make a Forfeiture and therefore was nonsuited The Chief Iustice said that the Statute was made to prevent Children from being seduced from their Parents or Guardians by flattering or enticing Words Promises or Gifts and married in a secret way to their disparagement but that no such thing appeared in this Case for Dr. Hascard proved the Marriage to be at St. Clements Church in a Canonical Hour and that many People were present and that the Church Doors were open whilst he married them Anonymus BY the Statute of 21 Jacobi 't is Enacted 21 Jac. c. 23. That no Writ to remove a Suit out of an Inferior Court shall be obeyed unless it be delivered to the Steward of the same Court before Issue or Demurrer joined so as the Issue or Demurrer be not joined within six Weeks next after the Arrest or Appearance of the Defendant In this Case Issue was joined and the Steward refused to allow the Habeas Corpus and the Cause was tried but not before an Utter Barrister as is directed by the Statute Curia The Steward ought to return the Habeas Corpus and they having proceeded to try the Cause no Utter Barister being Steward let an Attachment go Claxton versus Swift Hill 1 Jac. 2. Rot. 1163. THE Plaintiff being a Merchant brought an Action upon a Bill of Exchange If the Plaintiff recover against the Drawer of a Bill he shall not afterwards recover against any of Endorsers setting forth the Custom of Merchants c. and that London and Worcester were ancient Cities and that there was a Custom amongst Merchants that if any person living in Worcester draw a Bill upon another in London and if this Bill be accepted and endorsed the first Endorser is liable to the payment That one Hughes drew a Bill of 100 l. upon Mr. Pardoe paiable to the Defendant or Order Mr. Swift endorsed this Bill to Allen or Order and Allen endorsed it to Claxton The Mony not being paid Claxton brings his Action against Hughes and recovers but did not take out Execution Afterwards he sued Mr. Swift who was the first Endorser and he pleads the first Recovery against Hughes in barr to this Action and avers that it was for the same Bill and that they were the same Parties To this Plea the Plaintiff demurred and the Defendant joyned in the Demurrer Mr. Pollexfen argued that it was a good Barr because the Plaintiff had his Election to bring his Action against either of the Endorsers or against the Drawer but not against all and that he had now determined his Election by suing the Drawer and shall not go back again though he never have Execution for this is not in the nature of a joint Action which may be brought against all 'T is true that it may he made joint or several by the Plaintiff but when he has made his choice by suing of one he shall never sue the rest because the Action sounds in Damages which are uncertain before the Iudgment but afterwards are made certain transeunt in rem judicatam and is as effectual in Law as a Release As in Trover the Defendant pleaded that at another time the Plaintiff had recovered against another person for the same Goods so much Damages 2 Cro. 73. Yelv. 65. Brown versus Wootton and had the Defendant in Execution and upon a Demurrer this was held a good Plea for though in that Case it was objected that a Iudgment and Execution was no satisfaction unless the Mony was paid yet it was adjudged that the cause of Action being against several for which Damages were to be recovered and because a Sum certain was recovered against one that is a good discharge against all the other but 't is otherwise in Debt because each is liable to the entire Sum. Chief Iustice If the Plaintiff had accepted of a Bond from the first Drawer in satisfaction of this Mony it had been a good Barr to any Action which might have been brought against the other Indorsers for the same and as this Case is the Drawer is still liable and if he fail in payment the first Endorser is chargeable because if he make Endorsement upon a bad Bill 't is Equity and good Conscience that the Endorsee may resort to him to make it good But the other Iustices being against the Opinion of the Chief Iustice Iudgment was given for the Defendant Pawley versus Ludlow DEBT upon a Bond. The Condition was That if John Fletcher shall appear such a day coram Justitiariis apud Westm c. that then c. The Defendant pleaded that after the 25th day of November and before the day of the appearance he did render himself to the Officer in discharge of this Bond and to this the Plaintiff demurred Darnel for the Defendant admitted that if a Scire Facias be brought against the Bail upon a Writ of Error 3 Bulstr 191. 2 Cro. 402. who plead that after the Recognizance and before the Iudgment against the Principal affirmed he rendred himself to the Marshal in discharge of his Bail that this is not a good Plea but that the Sureties are still liable 3 Jac. cap. 8. because by the Statute they are not only liable to render his Body but to pay the Debt recovered But if a Iudgment be had in this Court 1 Rol. Abr. 334. pl. 11. and a Writ of Error brought in the Exchequer-Chamber and pending that Writ of Error the Principal is rendred the Bail in the Action are thereby discharged It was argued on the other side E contra that this is not the like Case of Bail upon a Writ of Error for the Condition of a Recognizance and that of a Bond for Appearance are different in their nature the one is barely that the Party shall appear on such a day the other is that he shall not only appear and render his Body to Prison but the Bail likewise do undertake to pay the Debt if Iudgment should be against the Principal Now where the Condition is only for an Appearance at a day if the Party render himself either before or after the day 't is not good Chief Iustice If the Party render himself to the Officer before the
the one took 70 l. and the other 30 l. damages shall be assessed severally It was admitted that regularly the damages ought to be entire especially where the Action is joint but where the Facts are several damages may likewise be so assessed but in this Case the Iury hath done what the Court would do had it béen in a Criminal Cause Curia This is all but one Fact which the Iury is to try 'T is true when several Persons are found Guilty criminally then the damages may be severed in proportion to their Guilt but here all are equally guilty of the same offence and it seems to be a contradiction to say that the Plaintiff is injured by one to the value of 50 l. and by the other to the value of 1000 l. when both are equally Guilty Every Defendant ought to answer full as much as the Plaintiff is damnified now how is it possible he should be damnified so much by one and so little by the other But notwithstanding this Opinion Iudgment was afterwards given for the Plaintiff Peak versus Meker IN an Action on the Case for Words the Plaintiff declared that he was a Merchant and bred up in the Church of England and that when the present King came to the Crown the said Plaintiff made a Bonfire at his Door in the City of London and that the Defendant then spoke of him these words for which he now brought this Action viz. He innuendo the Plaintiff is a Rogue a Papist Dog and a pitiful Fellow and never a Rogue in Town has a Bonfire before his Door but he The Plaintiff had a Verdict and 500 l. Damages were given A Writ of Error was brought but it was adjudged without argument that the words were actionable Joyner versus Pritchard AN Action was brought upon the Statute of R. II. Admiralty for prosecuting of a Cause in the Admiralty Court which did arise upon the Land it was tried before the Chief Iustice in London and a Verdict for the Plaintiff Mr. Thompson moved in Arrest of Iudgment for that the Action was brought by Original in which it was set forth that the Defendant prosecut fuit adhuc prosequitur c. in Curia Admiralitat now the prosequitur is subsequent to the Original and so they have recovered Damages for that which was done after the Action brought Curia These words adhuc prosequitur must refer to the time of suing forth this Original like the Case of a Covenant for quiet Enjoyment and a breach assigned that the Defendant built a Shed whereby he hindred the Plaintiff that he could not enjoy it hucnsque which word must refer to the time of the Action brought and not afterwards Iudgment was given for the Plaintiff Dominus Rex versus ........ AN Information was brought against the Defendant for Forgery Forgery setting forth that the Defendant being a man of ill fame c. and contriving to cheat one A. did forge quoddam scriptum dated the 16th day of October in the year 1681. continens in se scriptum obligatorium per quod quidem scriptum obligatorium praed A. obligatus fuit praed Defend in quadraginta libris c. He was found Guilty and afterwards this Exception was taken in arrest of Iudgment Viz. That the Fact alledged in the Information was a contradiction of it self for how could A. be bound when the Bond was forged 2. It is not set forth what that scriptum obligatorium was whether it was scriptum sigillatum or not Curia The Defendant is found Guilty of the forging of a Writing in which was contained quoddam scriptum obligatorium and that may be a true Bond. Iudgment was arrested MEMORANDUM On Tuesday April the 27th Sir Thomas Powes of Lincolns-Inn was made Sollicitor General in the Place of Mr. Finch and was called within the Bar. Hanchet versus Thelwal IN Ejectment a special Verdict was found Devise What words in a Will make an Estate for Life and what in Tail in which the Case did arise upon the construction of the words in a Will Viz. The Testator being seised in Fee had Issue Two Sons and Four Daughters He made his Will and devised his Estate being in Houses by these words Viz. Irem I give and bequeath to my Son Nicholas Price my Houses in Westminster and if itplease God to take away my Son then I give my Estate to my four Daughters naming them share and share alike and if it please God to take away any of my said Daughters before Marriage then I give her or their part to the rest surviving And if all my Sons and Daughters dye without Issue then I give my said Houses to my Sister Anne Warner and her Heirs Nicholas Price entred and died without Issue then the four Sisters entred and Margaret the eldest married Thellwel and died leaving Issue a Son who was the Lessor of the Plaintiff who insisted upon his Title to a fourth part of the Houses The Question was what Estate the Daughters took by this Will whether joint Estates for Life or several Remainders in Tail If only joint Estates for Life then the Plaintiff as Heir to his Mother will not be entituled to a fourth part if several Remainders in Tail then the Father will have it during his Life as Tenant by the Curtesie This Case was argued this Term by Mr. Pollexfen for the Plaintiff And in Hillary Term following by Councel for the Defendant The Plaintiffs Council insisted that they took joint Estates for Life and this seemed to be the intent of the Testator by the words in his Will the first Clause whereof was Viz. I give and bequeath my Houses in W. to Nicholas Price Now by these words an Estate for Life only passed to him and not an Inheritance for there was nothing to be done or any thing to be paid out of it 2. The next Clause is Viz. If it please God to take away my Son then I give my Estate to my four Daughters share and share alike Now these words cannot give the Daughters a Fee-simple by any intendment whatsoever but if any word in this Clause seems to admit of such a Construction it must be the word Estate which sometimes signifies the Land it self and sometimes the Estate in the Land But here the word Estate cannot create a Fee-simple because the Testator gave his Daughters that Estate which he had given to his Son before and that was only for Lise Then follow the words share and share alike and that only makes them Tenants in Common 3. The next Clause is Viz. If it please God to take away any of my said Daughters before Marriage then I give her or their part to the rest surviving These words as they are penned can have no influence upon the Case 4. Then followeth the last Clause Viz. And if all my Sons and Daughters dye without Issue then I give c. These words create no Estate tail in the
so his Son is justly and rightly sued as Son and Heir In some Cases the persons are to be named not by way of a Title but as a Pedigree as if there be Tenant for Life the Reversion in Fee to an Ideot and an Vncle who is right Heir to the Ideot levied a Fine and died living the Ideot leaving Issue a Son named John who had Issue William who entred the Question was whether the Issue of the Vncle shall be barred by this Fine It was the Opinion of two Iudges that they were not barred because the Vncle died in the life-time of the Ideot and nothing attached in him March 94. Cro. Car. 524. and because the Issue claim in a collateral Line and do not name the Father by way of Title but by way of Pedigree But Iustice Jones who hath truly Reported the Case Jones 456. was of Opinion that the Issue of the Vncle were barred because the Son must make his Conveyance from the Father by way of Title The Iury have found that the Reversion did descend to the Defendant as Heir to the last John 't is true it descends as a Reversion but that shall not charge him as Heir to the Father Jenk's Case 1 Cro. for the other was seised of the Estate Tail which is now spent and the last who was seised of the Fee was the Father and so the Defendant must be charged as his Heir 'T is likewise true that where there is an actual Seisin you must charge all but in this Case there was nothing but a Reversion Tremaine Serjeant for the Defendant In this Case the Plaintiff should have made a special Declaration for the Estate-Tail and the Reversion in Fee are distinct and seperate Estates John the Nephew might have sold the Reversion and kept the Estate Tail if he had acknowledged a Statute or Iudgment it might have been extended and if so then he had such a Seisin that he ought to have been named A Man becomes bound in a Bond and died Debt is brought against the Heir it is not common to say that he had nothing by descent but only a Reversion expectant upon an Estate Tayl. In the Case of Chappel and Lee Covenant was brought in the Common-Pleas against Judith Daughter and Heir of Robert Rudge She pleaded Riens per descent Issue was joyned before Sir Francis North then Chief Iustice and it appearing upon Evidence that Robert had a Son named Robert who died without Issue a Case was made of it and Iudgment was given for the Defendant the Plaintiff took out a new Original and then the Land was sold so the Plaintiff lost his Debt Adjornatur Afterwards in Hillary Term a Gulielmi Mariae Iudgment was given for the Plaintiff by the Opinion of three Iustices against Iustice Eyre who argued that the Defendant cannot be charged as immediate Heir to his Father 't is true the Lands are Assets in his Hands and he may be charged by a special Declaration Dyer 368. pl. 460. In this Case the intermediate Heirs had a Reversion in Fee which they might have charged either by Statute Iudgment or Recognizance they were so seised that if a Writ of Right had been brought against them they might have joyned the Mise upon the Mere right which proves they had a Fee and though it was expectant on an Estate Tail 3 Co. 42. Ratcliff's Case yet the Defendant claiming the Reversion as Heir ought to make himself so to him who made the Gift The person who brings a Formeden in Descender must name every one to whom any Right did descend 8 Co. 88. F.N.B. 220. c. Rast Ent. 375. otherwise the Writ will abate A Man who is sued as Heir or who entitles himself as such must shew how Heir The Case of Duke and Spring is much stronger than this 2 Rol. Abr. 709. 2 Cro. 161. for there Debt was brought against the Daughter as Heir of B. She pleaded Riens per descent and the Iury found that B. died seised in Fee leaving Issue the Defendant and his Wife then with Child who was afterwards delivered of a Son who died within an hour and it was adjudged against the Plaintiff because he declared against the Defendant as Daughter and Heir of the Father when she was Sister and Heir of the Brother who was last seised But the other three Iudges were of a contrary Opinion The Question is not whether the Defendant is lyable to this Debt but whether he is properly charged as Heir to his Father or whether he should have been charged as Heir to his Nephew who was last seised It must be admitted that if the Lands had descended to the Brother and Nephew of the Defendant in Fee that then they ought to have been named but they had only a Reversion in Fee expectant upon an Estate Tail which was incertain and therefore of little value now though John the Father and Son had this Reversion in them yet the Estate Tail was known only to those who were Parties to the Settlement 'T is not the Reversion in Fee Bro. Fit Descent pl. 30.37 Ass pl. 4. but the Possession which makes the party inheritable and therefore if Lands are given to Husband and Wife in Tail the Remainder to the right Heirs of the Husband then they have a Son and the Wife dies and the Husband hath a Son by a second Venter and dies the eldest Son enters and dies without Issue and his Vncle claimed the Land against the second Son but was barred because he had not the Remainder in Fee in possession and yet he might have sold or forfeited it But here the Reversion in Fee is now come into possession and the Defendant hath the Land as Heir to his Father t is Assets only in him and was not so either in his Brother or Nephew who were neither of them chargeable because a Reversion expectant upon an Estate Tail is not Assets Iudgment was given for the Plaintiff DE Term. Sancti Mich. Anno 1 Gulielmi Mariae Regis Reginae in Banco Regis 1689. Young versus Inhabitants de Totnam AN Action was brought against the Hundred for a Robbery in which the Plaintiff declared that he was Robbed apud quendam locum prope Faire Mile Gate in such a Parish He had a Verdict And now Serjeant Tremaine moved in arrest of Iudgment and the Exceptions taken were these viz. 1. That it doth not appear that the Parish mentioned in the Declaration was in the Hundred 2. Neither doth it appear that the Robbery was committed in the High-way 3. The Plaintiff hath not alledged that it was done in the day time for if it was not the Hundred is not lyable by Law But these Exceptions were all disallowed because it being after a Verdict the Court will suppose that there was Evidence given of these Matters at the Trial so the Plaintiff had his Iudgment Eggleston al' versus Speke alias Petit.
first Son of the Body of the said Simon Leach my Brother lawfully to be begotten and to the Heirs Males of the Body of such first Son lawfully to be begotten with like Remainder in Tail Male to the second third fourth c. Sons and for default of such Issue to Sir Simon Leach my Kinsman being Son and Heir of Simon Leach of Cadley in the County of Devon ' Esquire deceased and to the Heirs Males of his Body lawfully to be begotten and for default of such Issue to the right Heirs of me the said Nicholas Leach for ever They find that Nicholas Leach died without Issue that Simon Leach his Brother and Heir with Remainder over in Contingency as aforesaid entered and afterwards married Anne the Daughter of Unton Croke and that after the said Marriage viz. 20 August 25 Car. 2. he executed a Deed purporting a * Two months before a Son was born Surrender of the said Lands and Tenements to Sir Simon Leach in manner following viz. To all Christian People c. I Simon Leach of Elsefield in the County of Oxon Esquire send greeting Know ye that I the said Simon Leach for divers good Causes and valuable Considerations me hereunto moving have granted surrendred remised released and for ever quit claimed and confirmed and by these Presents do grant surrender remise release and for ever quit claim and confirm unto Sir Simon Leach of Cadley in the County of Devon Knight of the Bath and his Heirs and Assigns for ever all and every the Mannors c. To have and to hold the same to the said Sir Simon Leach for ever They find that Simon Leach Brother of the Testator was not compos mentis at the time of the sealing and delivery of the said Surrender That on the 10th day of November 25 Car. 2. which was two Months after this Surrender made the said Simon Leach had Issue of his Body Charles Leach who is his Son and Heir that he after the death of his Father entred and made a Lease to Tompson by vertue whereof he was possessed until the Defendant Sir Simon Leach entred upon him c. Two Questions were made upon this Special Verdict 1. Whether this Surrender by a person Non compos mentis was void ab initio and so could pass no Estate to the Surrendree for if so then though the Ideot himself is estopped by his own Act yet that can be no Barr to him in the Remainder because the Act being void the Estate in Law still remains in him 2. If it is not void in its self then whether it is voidable after the death of the Party by Charles Leach he claiming by virtue of a collateral Remainder and not as Heir at Law to the Devisor As to the first Point it was argued that the Cases of Lunaticks and Infants go hand in hand and that the same Reasons govern both that the Law is clear that a Surrender made by an Infant is void therefore a Surrender made by a person Non compos mentis is also void Fleta lib. 1. c. 11. num 10. the reason is because they know not how to govern themselves And as Fleta saith Semper judicabuntur infra aetatem F.N.B. 202. a. Regist 238. b. if he makes any Conveyance of his Land the Law hath provided a remedial Writ even for himself to avoid his own Alienation His Feoffments are void 39 H. 6.42 Bract. fol. 12. no. 5. fol. 100 120. Brit. cap. 34. fol. 88. Perk. 5. pl. 21. and if Warranties are annexed those they are also void if he granteth a Rent-Charge out of his Land that is likewise void and if the Grantee should distrain for this Rent after the death of the Grantor his Heir shall have an Action of Trespas against him and therefore by parity of Reason this Surrender must be void In Fitzherbert Tit. Grantee pl. 80. there is a Case to this purpose viz. An Assize was brought against the Tenant supposing that he had no right of Entry unless under a Disseisor by whom the Brother of the Demandant was disseised The Tenant pleaded that the supposed Disseisor was the Father of the Demandant whose Heir he then was and that his said Father made a Feoffment of the Land to the Tenant with Warranty and demanded Iudgment c. The Demandant replied that his Father at that time was Non compos mentis and the Tenant was compelled to rejoin and take Issue upon the Insanity which shews that if he was Non compos he could not have made such a Feoffment So if he maketh a Feoffment in Fee and afterwards taketh back an Estate for Life Fitz. Remitter pl. 23. the Non compos shall be remitted to his ancient Title which shews likewise that such Feoffment was void for the Remitter supposeth a former Right 'T is incongruous to say that Acts done by persons of no discretion shall be good and valid in the Law such are Infants and Lunaticks and it stands with great reason that what they do should be void especially when it goes to the destruction of their Estates Therefore 't is held that if a person Non compos releaseth his right that shall not barr the King in his Life time but he shall seize the Land and if he die his Heir may bring the Writ Dum non fuit compos mentis and may enter 'T is for this reason that a Release made by an Infant Executor is no barr because it works in destruction of his Interest 5 Co. 27. Russel 's Case 34 Ass pl. 10. the reason is the same where a person Non compos maketh a Feoffment for that likewise destroys his Estate So likewise an Infant can neither surrender a future Interest by his acceptance of a new Lease Cro. Car. 502. nor make an absolute Surrender of a Term of which he is possessed for such a Surrender by Deed is void 'T is agreed that if a Man Non compos maketh a Feoffment by Letter of Attorny 't is meerly void because 't is not delivered to the Feoffee by the hands of the Feoffor but 't is said that if it be delivered by him in person then 't is only voidable at any time by Action or Entry Finch 's Law 102. And of this Opinion was Sir Henry Finch in his Discourse of the Law who in the Margen of his Book quotes several Authorities in the Year Books to justifie this Opinion and amongst the rest he cites Sir Anthony Fitzherberts Natura Brevium 35 Ass pl. 10. who taking notice of the old Authorities seems to reject their Reasons who affirm a person Non compos shall not avoid his own Act when he recovers his memory because he cannot then tell what he did when he was in his former Condition But certainly when he recovers his Iudgment he is then of Ability to consider what was done during his Insanity and to avoid such Acts by shewing how his indisposition came by the
said Feoffees made a Feoffment of the Land in Fee without any consideration afterwards Christopher had Issue two Sons Now the Vses limited by the Feoffment of Sir R. C. being only contingent to the Sons of Christopher and they not being born when the second Feoffment was made to their Father the Question now was whether they shall be destroied by that Feoffment before the Sons had a Being in Nature or whether they shall arise out of the Estate of the Feoffees after their Births And it was adjudged in the Exchequer Chamber that the last Feoffment had divested all the precedent Estates and likewise the Vses whilst they were contingent and before they had an existence and that if the Estate for Life which Christopher had in those Lands had been determined by his death before the birth of any Son the future Remainder had been void because it did not vest whilst the particular Estate had a being or eo instanti that it determined So in this Case Mr. Leach cannot have any future Right of Entry for he was not born when the Surrender was made so that the contingency is for ever gone Suppose a Feoffment in Fee to the use of himself and his Wife and to the Heirs of the Survivor The Husband afterwards makes another Feoffment of the same Lands Cro. Car. 102. and dies and the Wife enters the Fee shall not vest in her by this Entry for she had no right the Husband has destroyed the contingent use by the last Feoffment so that it could not accrew to her at the time of his death Nay tho' the particular Estate in some Cases may revive yet if the contingency be once destroyed it shall never arise again As where the Testator being seized in Fee of Houses 2 Sand. 380. devised the inheritance thereof to such Son his Wife should have after her Life if she baptized him by his Christian and Sir-Name and if such Son dye before he attain the Age of 21 years then to the right Heirs of the Devisor He died without Issue the Widow married again then the Brother and Heir of the Testator before the birth of any Son conveyed the Houses thus Viz. To the Husband and Wife and to their Heirs and levied a Fine to those uses Afterwards she had a Son baptised by the Testator's Christian and Sir-Name Then the Husband and Wife sold the Houses to one Weston and his Heirs and levied a Fine to those Vses It was adjudged that by the Conveyance of the Reversion by the Brother and Heir of the Testator to the Baron and Feme before the Birth of the Son her Estate for Life was merged and tho' by reason of her Coverture she might waive the Joint-tenancy 2 Roll. Abr. 796. Wigg versus Villiers and reassume the Estate for Life yet that being once merged the contingent Remainders are all destroied Curia Cro. Car. 502. The Grants of Infants and of persons non compos are parallel both in Law and Reason and there are express Authorities that a Surrender made by an Infant is void therefore this Surrender by a person non compos is likewise void If an Infant grants a Rent-charge out of his Estate 't is not voidable but ipso facto void for if the Grantee should distrain for the Rent the Infant may have an Action of Trespass against him In all these Cases which have been cited where 't is held that the Deeds of Infants are not void but voidable the meaning is that non est factum cannot be pleaded because they have the form though not the Operations of Deeds and therefore are not void upon that account without shewing some special matter to make them of no efficacy Therefore if an Infant maketh a Letter of Attorny though 't is void in it self yet it shall not be avoided by pleading non est factum but by shewing his Infancy Some have endeavoured to distinguish between a Deed which giveth only authority to do a thing and such which conveys an interest by the delivery of the Deed it self that the first is void and the other voidable But the reason is the same to make them both void only where a Feoffment is made by an Infant 't is voidable because of the solemnity of the Conveyance Now if Simon Leach had made a Feoffment in Fee there had still remained in him such a Right which would have supported this Remainder in Contingency This Surrender is therefore void and all persons may take advantage of it Afterwards a Writ of Error was brought to reverse this Iudgment in the House of Lords but it was affirmed Cases Adj. 150. Hall versus Wybank THE Statute of Limitations is Statute of Limitations whether it extendeth to the Defendant being beyond Sea six years 21 Jac. cap. 16. that if any person be entituled to an Action and shall be an Infant Feme Covert Imprisoned or beyond Sea that then he shall bring the Action at full Age Discovert of saue Memory at large and returned from beyond Sea The Plaintiff brought an Indebitatus Assumpsit to which the Defendant pleaded non assumpsit infra sex Annos The Plaintiff replied that the Defendant was all that time beyond Sea so that he could not prosecute any Writ against him c. And upon a Demurrer Serjeant Tremaine argued that the Plaintiff was not barred by the Statute which was made to prevent Suits by limiting personal Actions to be brought within a certain time and it cannot be extended in favour of the Defendant who was a Debtor and beyond Sea because 't is incertain whether he will return or not and therefore there is no occasion to begin a Suit till his return 'T is true the Plaintiff may file an Original and Outlaw the Defendant and so seise his Estate but no Man is compelled by Law to do an act which is fruitless when 't is done and such this would be for if the Plaintiff should file an Original 't is probable the Defendant may never return and then if the Debt was 1000 l. or upwards he would be at a great Expence to no purpose or if the Party should return he may reverse it by Error 'T is a new way invented for the payment of Debts for if the Debtors go beyond Sea and stay there six years their Debts would by this means be all paid The words of the Statute do not extend to this Case for the Proviso is That if the Plaintiff be beyond Sea when the cause of Action doth accrew Cro. Car. 246. 333. that then he have shall liberty to continue it at his return yet 't is within the equity of Law for him to bring his Action when the Defendant returns who cannot be sued 'till then That Statutes have been expounded according to Equity is not now a new Position 2 Roll. Rep. 318. for Constructions have been made according to the sense and meaning and not according to the Letter of many Statutes
Man from having any Office whatsoever who shall affirm the King to be a Papist 13 Car. 2. cap. 1. that is a person who endeavours to introduce Popery 2. But if the word Papist is not actionable of it self yet as coupled with his Offices 't is otherwise and the Plaintiff may well maintain this Action And of that Opinion was all the Court So the Iudgment was affirmed Malloon versus Fitzgerald ERror of a Iudgment in Ireland Where an Estate Tail shall not be determined for want of notice of a Proviso to determine it for Lands in the County of Waterford the Case upon the special Verdict was this John Fitzgerald was seized in Fee of the Lands in question who had Issue Katherine his only Daughter He by Lease and Release made a Settlement of those Lands upon the Earl of Ossory and other Trustees therein named and their Heirs to the use of himself for Life and after his Decease to the use of his Daughter Katherine in Tail Provided that she Married with the consent of the said Earl and the Trustees or the major part of them or their Heirs some worthy person of the Family and Name of Fitzgerald or who should take upon him that Name immediately after the Marriage but if not then the said Earl should appoint and raise a Portion out of the said Lands for the Maintenance of the said Katherine with a Remainder to Laetitia in Tail John Fitzgerald died his Daughter being then but two years old She afterwards at the Age of fourteen had Notice of this Settlement but not by the Direction of the Trustees That on the 20th of March in the 16th year of her Age she Married with the Plaintiff Edward Villiers Esq without the consent of the Trustees or the major part of them and that her Husband Mr. Villiers did not take upon him the Name of Fitzgerald after the said Marriage That Laetitia the Aunt was married to Franklyn who likewise did not take upon him the Name of Fitzgerald 1. The Questions were Whether the Estate limited to Katherine be forfeited without Notice given to her of the Settlement by the Trustees themselves 2. Whether her Estate be not determined by her marrying Mr. Villiers without their consent And it was argued That the Estate Tail was determined And first as to the point of Notice 't is not necessary to be given to the Daughter because the Father had not made it in the Settlement He might dispose of his Estate at his pleasure and having made particular Limitations of it there is no room now for the Law to interpose to supply the defect of Notice in the Deed. And to this purpose the Mayor of London 's Case was cited which was That George Monox Devised certain Houses to his Executors in Trust and their Heirs Cro Car. 576. Idem Jones 452. upon condition to pay mony to several Charitable uses which if not performed then he devised them over to his Heir in Tail upon the same Conditions and if not performed by him then to the * The Devise to him was void because it was a possibility upon a possibility Mayor and Commonalty of London The Trusts were not performed by the first Devisees A Stranger entered and levied a Fine with Proclamations and five Years passed Then the Mayor of London brought his Action supposing he had a right of Entry for the non performance of the Trusts but was barred by the Fine although it was argued for him that he had not notice of the Devise or breach of the Trust till after the Fine levied which shews that Notice was not necessary for if it had been so when his Title accrewed he could not have been barred by the Fine As Katherine the Daughter takes notice what Estate she hath in the Land so as to pursue a proper Remedy to recover it so she ought to take notice of the Limitations in the Settlement and hath the same means to acquaint her self with the one as with the other and the same likewise as her Aunt had to know the Remainder Suppose a Promise is made to indempnifie another from all Bonds which he should enter into for a third person 2 Cro. 432. Hob. 51. Jones 207. Pop. 164. and then an Action is brought against him wherein the Plaintiff declared that he was bound accordingly and not saved harmless but doth not shew that he gave notice of his being bound yet the Plaintiff shall recover As to the Case of a Copyholder having three Sons who surrendred to the use of his Will 2 Cro. 56. and then devised to his middle Son in Fée upon condition to pay Legacies to his Sisters at full age which were not paid Now tho' it was adjudged that his Estate was not determined upon the non-performance of this Condition without an actual demand and denial and that he was not bound to take notice of the full age of his Sisters yet this is not an Authority which can any wise prevail in this Case because 't is a * If the Devise had been to the eldest Son then it had been a Limitation annexed to his Estate and not a Condition because if it had been a Condition it would have descended upon the Heir who could not be sued for the breach 1 Ventr 199. Rep. Canc. 140. Sid. Poph. 104. Condition to pay Legacies which is a thing in its nature not to be paid without a demand which implies notice In all Cases where Conditions are annexed to Estates to pay Mony there notice is necessary but where Estates are limited upon the performance of collateral acts 't is not necessary And this has been held the constant difference So is Fry and Porter 's Case which was this The Earl of Newport had two Daughters and he devised Newport House to the Daughter of his eldest Daughter in Tail which she had by the Earl of Banbury Provided and upon condition that she marry with the consent of her Mother and two other Trustees or the major part of them if not or if she should dye without Issue then he devised the said House to George Porter in Fee who was the Son of his youngest Daughter and who had married one Thomas Porter without her Fathers consent The Lady Ann Knowles the first Devisee married Fry without the consent of her Grandmother or Trustees and it was adjudg'd against her upon point of Notice that it was not necessary because her Grandfather had not appointed any person to give notice he might have imposed any Terms or Conditions upon his own Estate and all Parties concerned had the same means to inform themselves of such Conditions The third Resolution in Frances Case 8 Co. comes nearest to this now in question it was in Replevin the Defendant avowed the taking Damage Fesant The Plaintiff pleaded in Barr to the Avowry that R. Frances was seized in Fee of the place where c. and devised it to John who was his
of a person dying intestate and tells what share his Relations shall have and 't is probable that the Custom of London might guide the Parliament in the making of this Law which Custom distributes the Estate of a Freeman amongst his Wife and Children This shews that an Interest is vested in them which goes to the Administrator the consequence whereof is very considerable for if such Children should marry they have a Security by this Act that a Portion shall be paid and if the Wife should take another Husband he will be entituled to her share and this may be a means of giving credit in the World when the certainty of their Portions are so well known and secured 'T is such an Interest which is known in the Law and may be compared to that in Sir Thomas Palmer's Case 5 Co. 24. who sold 1600 Cord of Wood to a Man who assigned it to another and afterwards the Vendor sold 2000 Cord to one Maynard to be taken at his Election the Assignee of the first person cutt 600 Cord and Maynard carried it away thereupon an Action was brought and the Plaintiff had Iudgment because the first Vendee had an Interest vested in him which he might well assign This Case is a plain proof that a Man may have an Interest in a Chattle without a Property and such an Interest which gives the person a remedy to recover and where there is a remedy there must be a Right for they are convertibles 'T is not a new thing in the Law that a contingent Interest in the Ancestor shall survive to the Heir Wood's Case cited in Shelleys Case 1 Co. 99. as if a Man be seized of the Mannor of S. and covenants that when B. shall make a Feoffment to him of the Mannor of D. then he will stand seized of the said Mannor of S. to the use of the Covenantee and his Heirs who dyed leaving Issue an Heir who was then an Infant B. made a Feoffment to the Covenantor accordingly it was held that no Right descended to the Heir of the Covenantee but only a possibility of an Vse which might have vested in the Ancestor and therefore the Heir shall claim it by descent 'T is like a Debt to be paid at a day to come Lit. Sect. 512. which is debitum in praesenti though solvendum in futuro and though the Obligee cannot have an Action before the day is come yet such an Interest is vested in him that he may release it before that day and so bar himself for ever Now if this Act makes a Will it ought to be construed as such and it cannot be denied that if this Case had happened upon a Will the Executor of the Son would have a very good Title 'T is a weak Objection to affirm that this Law was made to establish the practice of the Ecclesiastical Courts and that 't is only explanatory of the Statutes of Ed. 3. and H. 8. because 't is plainly introductory of a new Law for Distribution is now made otherwise than it was before 2. An Interest is vested where there is but one Child For the better understanding of this Point the Clause in the Act ought to be considered which is viz. If there be no Wife then to be distributed amongst the Children if no Child then to the next of Kin of the Intestate upon which Clause these Objections have been made Object 1. That 't is insignificant because the Statute of H. 8. gives the right of Administration to the Child 2. That Distribution cannot be made where there is but one 3. That this Clause ought to be construed according to the Law in the Spiritual Courts Answ Now as to the first Objection 't is true that before this Act the Child had a Right of Administration but that Right was only personal so that if he had died before he had administred his Executor or Administrator could not have it Besides many inconveniences did attend this personal Right of Administration which are now prevented by the vesting of an Interest For when the Right was personal and the Administrator gave Bond with Sureties to administer truly and the Ordinary had appointed Distribution to be made the Administrator was bound to perform it though not in equal degree and if he died before the Estate was got in it was lost for ever But now by this Clause Distribution must be made equally viz. one third part of the Surplus to the Wife the rest by equal portions to the Children so that what was very incertain before and almost at the Will of the Ordinary is now reduced to a certainty and therefore an Interest must vest in such persons to whom such equal Distributions of filial Portions are given 2. Object That Distribution cannot be made where there is but one Child Answ This also is true in propriety of Speech and taking the Word distribute in the strict sense But this was never intended by the Statute as may plainly appear upon the construction of the whole for the Word Children doth comprehend a Child and more and the form of the Bond directed by this Statute is that the Administrator shall deliver the Goods to such person and persons c. which shews that one is comprehended and therefore Distribuere in this Case is no more than Tribuere and must be so taken The Parliament never intended that Distribution should not be made where there is but one Child as may be easily collected from the reason of the thing and the inconveniences which would ensue 1st If a Man should die leaving a Wife and one Child the Wife would be entituled to one third and the Child to the other two thirds of the personal Estate now if the Child shall have two thirds being comprehended under the Word Children what reason can be given why he should not have the whole where there is no Wife which he could not have if the Word Children did not comprehend Child in this Case 2dly If a Man hath a personal Estate to the value of 2000 l. and dieth leaving Issue three Sons but hath in his life time made provision for the second Son to the value of 1000 l. the eldest Son dies intestate shall the youngest be totally excluded from the remaining 1000 l. because there is none left to have distribution his second Brother being preferred in the life time of his Father by an equal portion with what remains 3dly If the Father hath a Son married and two Brothers and dies intestate now if his Estate should not be vested in the Son then if he should also die intestate his Wife could have nothing but it would go to the Vncles and this would be a very hard construction of this Law to carry the Estate to the Vncles and their Executors from the Son and his Administrator But there is a Case which proves that a Child is intended by the Word Children 8 Co 96. 't is between Amner
the Land 211 5. Not granted for Mariners Wages 244 6. Libel for a Tax upon the Parishioners for not repairing of their Church who suggest that they had a Chappel of Ease in the same Parish the Prohibition was denied for of common right they ought to repair the Mother Church 264 7. Proof of Matter of Fact by one Witness denied to be allowed in the Spiritual Court is a good cause for a Prohibition 284 8. Where the Release of a Legacy offered to be proved by one Witness was denied in the Spiritual Court ibid. 9. Proof of Payment or Subtraction of Tythes denied and a Prohibition granted ibid. 10. Whether a Prohibition ought to be allowed after Sentence an Appeal being then the more proper remedy 284 Property See Interest Q. Quorum MUst be one Justice of the Peace of the Quorum otherwise cannot be a Sessions 14 152 Quantum meruit Will lie for Rent reserved upon a real Contract where the Sum is not certain but if a Sum in gross is reserved then Debt must be brought 73 R. Record ERror shall not be assigned against the Essence of a Record 141 Recovery Common Reversed without a Scire Facias to the Tertenants but it seems not to be good 119 2. For there must be a Scire Facias against the Heir and Tertenants when a Writ of Error is brought to reverse it 274 Relation Where an Estate shall pass by Relation where not 299 300 Release Of a Legacy by one Executor and also of all Actions Suits and Demands whatsoever those general words which follow are tied up to the Legacy and release nothing else 277 2. Of a Demand will not discharge a growing Rent 278 3. A Receipt was given for 10 l. in which there was a Release of all Actions Debts Duties and Demands nothing is released but the 10 l. 277 4. Judgment against four Defendants who all joyned in a Writ of Error and the Plaintiff pleaded a Release of Errors by one it shall not discharge the rest of a personal thing but if there had been four Plaintiffs to recover the Release or death of one is a Barr to all 109 135 249 5. A Release of all Actions will discharge an Award of Execution upon a Scieri Facias 185 187 6. Of all Actions and Demands doth not discharge a Legacy it must be by particular words 279 7. One of the Defendants who made Conusance released the Plaintiff after the taking of the Cattle this was held void upon a Demurrer for he had no Demand or Suit against the Plaintiff having distrained in the right of another ibid. Remainder See Entry 3. Fines levied 4. Must take place eo instanti the particular Estate is determined or else it can never arise 309 2. By the Conveyance of the Reversion in Fee to him who had the Estate for Life before the Birth of a Son the particular Estate is merged and all contingent Remainders are thereby destroyed 311 Replevin Where 't is brought by Writ the Sheriff cannot make deliverance without the taking of Pledges de prosequendo retorn ' Habend ' 35 Replication Where the Plaintiff confesseth and avoideth he ought not to traverse for that would make his Replication double 318 Request When a thing is to be done upon Request the time when the person requires it to be done is the time of the performance 295 Reservation Of a Rent upon a Lease for three years payable at Michaelmas and Lady-Day Debt was brought for 2 years without shewing at which of the Feasts it was due 't is good after Verdict but ill upon a Demurrer 70 Resignation See Abeiance To the Ordinary and Patron presented 'ts void if the Ordinary did not accept the Resignation 297 Reversion See Bargain and Sale Surrender 2. Tenant in Tail who had likewise the Reversion in Fee if he acknowledge a Judgment the Reversion may be extended 256 2. But a Reversion in Fee expectant upon an Estate Tail is not Assets until it comes into possession 257 3. By what words a Reversion in Fee passeth in a Will 228 Revocation A Will shall not be revoked by doubtful words 206 2. It might be revoked by Word without Writing before the Statute of Frauds 207 3. Before that Statute a Will might be revoked by a subsequent Will which was void in it self yet good to revoke the former 207 218 4. A subsequent Will which doth not appear shall not be any Revocation of a written Will which doth appear 204 205 206 5. Whether a subsequent Will which is void in it self may revoke another since the Statute of Frauds 218 6. Such a Will must be good in all circumstances to revoke a former 260 261 Riot See Information Robbery The Hundred was sued and it did not appear that the Parish where the Fact was laid to be done was in the Hundred or that it was done upon the High way or in the day time this was helped after Verdict 258 2. A Servant delivered Mony to a Quaker to carry home for his Master they were both robbed viz. the Servant of 26 s. and the Quaker of 106 l. the Servant made Oath of the Robbery and the Quaker refused the Master brought the Action it doth not lie for him 287 288 S. Scire Facias See Bail 3 4. Baron and Feme 1 4 5. Iudgment 2. Pledges 1. Recovery MUst be to the Tertenants before the Common Recovery shall be reversed by Writ of Error 119 2. Scieri Facias quare Executionem non habet recites the first Judgment but prays no new thing only to have Execution upon that Judgment 187 3. 'T is not an original but a judicial Writ and depends upon the first Judgment 187 4. 'T is suspended by Writ of Error and if the original Judgment is reversed that is so also ibid. 5. Debt will lie upon a Judgment had on a Scire Facias 188 189 6. A Judgment upon a Scire Facias is a distinct Action from the original cause 189 7. Judgment in Dower and a Writ of Enquiry of Damages the Woman marries and dies before the Writ of Enquiry executed the Husband administred and brought a Scire Facias upon the Judgment whether it lieth or not 281 Serjeants at Law See Iudges Surplusage See Inquisition Steward See Court Supersedeas See Parliament Surrender See Assent 1 2. Where it may be pleaded without an acceptance 297 2. No man can take it but he who hath the immediate Reversion 299 3. If pleaded without an Acceptance 't is aided after Verdict which shews 'tis no Substance 301 4. By one Non compos mentis 't is void ab initio 303 T. Tail DEvise to D. for Life the Remainder to her first Son and the Heirs of the Body of such first Son endorsed thus viz. Memorandum that D. shall not alien from the Heirs Males of her Body she had a Son who had Issue a Daughter 't is not an Estate Tail Male for the Memorandum shall not alter the Limitation in the Will
it self 81 83 2. The Testator had two Sons and four Daughters he devised a House to his eldest Son and if he die then he devised his Estate to his four Daughters and if all his Sons and Daughters died without Issue then to A. and her Heirs this is not an Estate Tail in the Daughters by Implication 105 3. Where a Devise is to several persons by express Limitation and a Proviso if all die without Issue of their Bodies the Remainder over this is no cross Remainder or an Estate by Implication because 't is a Devise to them severally by express Limitations 106 4. Devise to his eldest Son and if he die without Heirs Males but doth not say of his Body then to his other Son c. 't is an Estate Tail in the eldest 123 Tenant in Common A Devise to hold by equal parts makes a Tenancy in Common so that there can be no Survivorship in such case 210 Tenant at Will Cestuy que Trust by Deed is Tenant at Will to the Trustees 149 2. Where a Grant by Tenant at Will though void amounts to a determination of his Will 150 3. Whether Tenant at Will can grant over his Estate ibid. 4. What Act shall amount to the determination of his Will ibid. 5. Any thing is sufficient to make an Estate at Will 196 6. Tenant in Fee made a Lease for 100 years in Trust to attend the Inheritance and continued still in Possession he is Tenant at Will to the Lessee for 100 years and if he make any Lease and levy a Fine Sur Cognizance c. the first Lease is displaced and turned to a Right and the Fine barrs it 196 Trade See Grants 2. Prerogative 3 5. Indictment 12. Information 7. Confinement of Staple to certain places was the first regulation of Trade and from thence came Markets 127 2. The King is sole Judge where Fairs or Markets ought to be kept ibid. 3. Custom to restrain a Man from using of a Trade in a particular place is good 128 4. A Man may restrain himself by Promise or Obligation not to use a Trade in a particular place ibid. 5. Regulation of Trade is the chief end of Incorporations ibid. 6. Such incorporate Bodies have an inherent power to judge what persons are fit to use Trades within their Jurisdictions ibid. 7. Whether Grants of the King prohibiting Trade are void 131 8. Cannot be restrained by any By-Law 159 9. At the Common Law any Man might exercise any Trade he please 312 10. Petty-Chapmen are not within the Statute of 5 Eliz. 315 11. Journymen who work for hire are not within the Statute but the Master who sets them to work and pays their Wages is punishable 316 317 12. Subject hath not power absolutely to trade without the King's Licence 127 Travers See Ieofails 3. Presentment Replication Cannot be to a Return of a Writ of Restitution 6 2. He who traverseth the King's Title must shew a Title in himself 146 3. After a Travers 't is not good pleading to conclude to the Country 203 4. Not concluding with a Travers is but matter of form 't is aided by the Statute of Ieofails upon a Demurrer 319 5. Want of a Travers seldom makes a Plea ill in substance but an ill Travers often makes it so 320 6. It must be taken where the thing traversed is issuable 320 Treason See Outlawry Attainder of Treason reversed because on arraignment or demanding Judgment and because there was Process of Ve. fa. instead of a Capias and likewise for that it did not appear that the Party was asked what he had to say why Sentence c. 265 Trespass For breaking and entring a Free Fishery and taking the Fish ipsius querentis not good for he had not such a Property as to call the Fish his own 97 2. In Trespass Quare vi armis clausum fregit to his Damage of 20 s. an Action lyeth let the Damage be never so little 275 Trial See Appeal 2 3. Election 1. Where the Trial and conviction of a Criminal is had he must be executed in that County and not elsewhere unless in Middlesex by prerogative of B. R. which sits in that County 124 2. Where the Court refused to grant a new Tryal in a Case where excessive Damages are given 101 Trover and Conversion Judgment in Trespass is no Bar to an Action of Trover for the same Goods 1 2. They are different Actions in their very nature 2 3. It lies upon a demand and denial but Trespass doth not ibid. 4. Trover pro diversis aliis bonis hath been held good 70 5. 'T is a good Plea in Trover to say that Damages were recovered against another Person for the same Goods and the Defendant in execution though the mony is not paid 86 6. Whether it lies for taking a Ship after a Sentence in the Admiraly for taking the said Ship 194 7. Brought by two and after Verdict one died whether Judgment shall be arrested 249 V. Variance See Appeal 1. Apportionment 2. BEtween the Original in Trespass and the Declaration that being certified three Terms past and no Continuances for that reason not good 136 2. Between Original and the Declaration not aided by the Statutes of Jeofailes ibid. 3. Sci. fa. to have execution of a Judgment obtained in the Court of Oliver late Protector of England and the Dominions and Territories thereunto belonging and in reciting the Judgment it was said to be obtained before Oliver late Protector of England and the Dominions c. but left out Territories this was held to be good in substance for the Judicature is still the same 227 Venire Facias The Court would not order the Plaintiff to file a Ve. fa. 246 Verdict See Assumpsit 2. Action for a Tort 5. Amendment 1.6 Common 3. Evidence 6. Prescription 4. Reservation 1. Robbery 1. Surrender 3. The true reason why it helps a defective Declaration 162 2. A Promise to pay quantum rationabiliter valerent instead of valebant at the time of the promise good after Verdict 190 3. It cannot be diminished neither can any thing be added to it 205 4. An Hundred was sued for a Robbery and tho' it did not appear that the Fact in the Declaration mentioned was done in the Hundred or that the Robbery was in the High-way or done in the day-time yet good after a Verdict 258 5. The Defendant sold Cattle affirming 'em to be his own ubi revera they were not but 't is not said that he affirmed them to be his own sciens the same to be the Goods of another or that he sold them fraudulenter vel deceptive yet good after Verdict 261 Vicaridge 'T is not sufficient to alledge Seisin in Fee of a Rectory and that he ought to present to the Vicaridge but he must say that he is Impropriator or that he was seised in Fee of a Rectory impropriate 295 Visitor No Appeal lies from his Sentence for he is Fidei