which he claims he ought to shew the other Will by which it must appear that nothing is contradictory to it or that it doth confirm the first but if Presumptions shall be admitted it must be in favour of the Heir for nothing shall be presumed to disinherit him Afterwards in Trinity-Term 5 Willielmi Iudgment was given for the Plaintiff and a Writ of Error was brought in the House of Peers to reverse that Iudgment but it was affirmed Anonymus A Writ of Error was brought to reverse a Iudgment in the Common Pleas in an Ejectment for Lands in the County of Essex in which a Special Verdict was found viz. That R. F. What Words in a Will make Tenants in Common was seized in Fee of the Lands in question who had Issue two Daughters Frances Jane Frances had Issue Philp Frances Anne R. F. the Father devised unto Philip Frances and Anne the Children of his Daughter Frances and to Jane his other Daughter the Rents and Profits of his Mannor of Spain for thirty years to hold by equal parts viz. the three Grandchildren to have one Moiety and his Daughter Jane the other Moiety And if it happen that either of them should die before the thirty years expired then the said Term should be for the benefit of the Survivor and if they all die then the same was devised over to other Relations Afterwards he made a Codicil in these words viz. I give Power and Authority to my Executors to let my whole Lands for the Term of thirty years for the benefit and behalf of my Children Anne one of the Granchildren died without Issue Frances another of the Grandchildren died but left Issue The first Question was whether the Power given to the Executors by the Codicil will take away that Interest which was vested in the Grandchildren by the Will Mr. Appleton argued that it would not because the Executors had only a bare Authority to let it or improve it for the benefit of the Children there was no Devise of the Land to them If Power be given to Executors to sell Lands 't is only an Authority and not an Interest in them but a bare Authority only to let is of much less importance 2. After the Testator had devised the Profits of these Lands to his Grandchildren and Daughter equally to be divided during the term and had provided that if any dye without Issue that then it should survive and if all dye then to remain over to collateral Relations c. Whether Frances being dead but leaving Issue her Interest shall survive to Philip or go to such her Issue As to that he held that the Testator made them Tenants in Common by equal parts and therefore he devised it by Moieties in which there can be no Survivorship 'T is like a Devise to the Wife for life 2 Cro. 448. 1 Roll. Abr. 833. King versus Rumbal Cro. Car. 185. and after her decease to his three Daughters equally to be divided and if any of them die before the other then the Survivors to be her Heirs equally to be divided and if they all die without Issue then to others c. the Daughters had an Estate Tail and there was no Survivorship So in this Case it shall never go to the third Grandchild as long as any Issue of the second are living On the other side it was argued that they are Ioyntenants and not Tenants in Common E contra for the Testator having devised one Moiety to his three Grandchildren joyntly by equal parts that will make them Ioyntenants But the Court were all of Opinion that the words in the Will shew them to be Tenants in Common for equally to be divided runs to the Moieties So the Iudgment was affirmed Woodward 's Case THE Statute of 23 H. 8. c. 9. Church Ornaments are a personal Charge upon the Inhabitants and not upon those who live else where though they occupy Lands in that Parish Godb. 134. pl. 4. 152. pl. 29. 154. pl. prohibites a Citation out of the Diocess wherein the Party dwelleth except in certain Cases therein mentioned one whereof is viz. Except for any Spiritual Cause neglected to be done within the Diocess whereunto the Party shall be lawfully cited One Woodward and others who lived in the Diocess of Litchfield and Coventry but occupied Lands in the Diocess of Peterborough were taxed by the Parishioners where they used those Lands for the Bells of the Church and they refusing to pay this Tax a Suit was commenced against them in the Bishop of Peterborough's Court who thereupon suggested this Matter and prayed a Prohibition because they were not to be charged with this Tax it being only for Church Ornaments And a Prohibition was granted the reason given was because 't is a personal charge to which the Inhabitants only are liable and not those who only occupy in that Parish and live in another but the repairing of the Church is a real Charge upon the Land let the Owner live where he will DE Term. Sanct. Trin. Anno 4 Jac. II. in Banco Regis 1688. Wright Chief Justice Holloway Justices Powel Justices Allibon Justices The Bishop 's Case Friday June 15th THE King having set forth a Declaration for Liberty of Conscience did on the 4th day of May last by Order of Council enjoyn that the same should be read twice in all Churches c. and that the Bishops should distribute it through their respective Diocesses that it might be read accordingly The Archbishop of Canterbury who then was together with six other Bishops petitioned the King setting forth that this Declaration was founded upon a dispensing Power which had been declared illegal in Parliament and therefore they could not in Honour or Conscience make themselves Parties to the Distribution and Publication of this Declaration who thereupon were summoned before the King in Council and refusing there to give Recognizance to appear before the Court of Kings Bench they were committed to the Tower by Warrant of the Council-Board The Attorney General moved for a Habeas Corpus retornable immediate and the same Morning in which that Motion was made Sir Edward Hales Lieutenant of the Tower returned the same and they were all brought into the Court. The Substance of the Return was viz. That they were committed to his Custody by Warrant under the Hands and Seals of the Lord Chanchellor Jefferies and also naming more of the Lords of the Privy-Council Dominos Concilij for contriving making and publishing a Seditious Libel against the King c. Then it was prayed that the Return might be filed and that the Information which was then exhibited against them for this Crime might be read and that they might all plead instanter Serjeant Pemberton Mr. Finch and Mr. Pollexfen oppsed the reading of it and moved that the Bishops might be discharged because they were not legally before the Court for it appears upon the Return that there is no lawful cause of
Occupant and let the Land to the Plaintiff until c. Et hoc paratus est verificare The Defendant demurred to this Replication and had Iudgment The Matter now in Debate was upon Exceptions to the Barr. 1. For want of a Traverse that Sir Peter Werburton was seised in Fee at the time of the taking c. 2. For want of a sufficient Title alledged in the Plaintiff for that by the Statue of Frauds all Occupancy is now taken away It was argued that the Replication was good without a Traverse Co. Ent. 504. for where the Plaintiff hath confessed and avoided as he hath done here if he had traversed likewise that would have made his Replication double He confesseth that Sir P. W. was seised in Fee of the Mannor but afterwards the Seisin was expresly alledged to be in Sir George the Father and that the place where was parcel thereof which is a Confession and an Avoidance The Avowant should have traversed this Lease but the Traverse of the Plaintiff upon him had made it a worse Issue Agreeable to this Case in reason is that which was adjudged in this Court in Michaelmas-Term 10 Car. 1. It was in Trespass Cro. Car. 384. the Defendant pleaded that the locus in quo was the sole Freehold of John c. and justified by his Command The Plaintiff replyed that the Land was parcel of the Mannor of Abbots Anne and that W. was seised in Fee and levied a Fine to the use of himself and Wife for their Lives the Remainder to E. for 100 years if he lived so long who after the death of the Cognizors entred and made a Lease to the Plaintiff And upon a Demurrer to this Replication the same Exception was then taken as now viz. that the Plaintiff did not confess and avoid the Freehold of John but the Plaintiff had Iudgment for the Barr being at large and the Title in the Replication being likewise so too the Plaintiff may claim by a Lease for years without answering the Freehold The not concluding with a Traverse is but a form and the Court will proceed according to the Right of the Cause without such form 27 Eliz. c. 5. 't is a defect which after a Ioinder in Demurrer is expresly helped by the Statute of Ieofails which enables the Court to amend defects and want of Forms other than such for which the party hath demurred The Case of Edwards and Woodden is in point Cro. Car. 323. 6 Co. Heyley 's Case Dyer 171. b. 1 Leon. 77 78. contra it was in Replevin the Defendant made Cognizance as Bailiff to Cotton for that the place where c. was so many Acres parcel of a Mannor c. that Bing was seised thereof in Fee who granted a Rent Charge out of it to Sir Robert Heath in Fee who sold it to Cotton c. The Plaintiff in Barr to the Conusance replied and confessed that the Land was parcel of the Mannor c. and that Bing was seised in Fee prout c. and granted the Rent to Sir R. H. but that long before the Seisin of Bing c. one Leigh was seised thereof in Fee who devised it to Blunt for a Term of years which Term by several Assignments came to Claxton who gave the Plaintiff leave to put in his Cattel c. And upon a Demurrer to this Replication an Exception was taken to it for that the Plaintiff did not shew how the Seisin and Grant of Bing to Sir R. H. was avoided for having confessed a Seisin in Fee prout c. that shall be intended a Fee in possession and notwithstanding he had afterwards set forth a Lease for years in Leigh by whom it was devised to Blunt c. and so to Claxton it may be intended that the Grantor was only seised in Fee of the Reversion and therefore the Plaintiff ought to have traversed the Seisin aliter vel alio modo But three Iudges seemed to encline that the Replication was good and that the Plaintiff had well confessed and avoided that Seisin in Fee which was alledged by the Defendant for he had shewed a Lease for years precedent to the Defendants Title and which was not chargeable with the Rent and his pleading that the Grantor Bing was seised in Fee must be only of a Reversion expectant upon that Lease But if his Confession that Being was seised in Fee prout c. shall be intended a Seisin in Fee in possession yet the Replication is good in substance because the Charge against the Plaintiff is avoided by a former Estate and in such Case 't is not necessary to take a Traverse But after all it was held that if it be a defect 't is but want of a Form which is aided by the Statute and that is this very Case now in question The want of a Traverse seldom makes a Plea ill in substance but a naughty Traverse often makes it so because the adversary is tied up to that which is material in it self so that he cannot answer what is proper and material and therefore in Ejectment upon a Lease made by E. I. Yelv. 151. Bedel versus Lull the Defendant pleaded that before E. I. had any thing to do c. M. I. was seised in Fee after whose death the Land descended to his Heir and that E. entred and was seized by Abatement The Plaintiff replied and confessed the Seisin of M. but saith that he devised it in Fee to E. I. who entred absque hoc that E. I. was seized by Abatement and upon a Demurrer this was held to be an ill Traverse for the Plaintiff had confessed the Seisin of M. and avoided it by the Devise and therefore ought not to have traversed the Abatement for having derived a good Title by the Devise to his Lessor 't is an Argument that he entred lawfully and it was that alone which was issuable and not the Abatement therefore it was ill to traverse that because it must never be taken but where the thing traversed is issuable Then it was said that the Conusance was informal because the Avowant should have said that the Locus in quo c. contains so many Acres of Ground c. he only saith that it was parcel of a Mannor besides he neither prays Damages nor Retorn ' Habend ' 2. As to the 2d Point it was said that the Statute of Frauds doth not take away all Occupancy it only appoints who shall be a special Occupant Besides here is a Title within the Statute for a Lease for Lives is personal Assets so is a Term in the Hands of an Executor de son tort and in this Case the entring of one Brother after the death of the other made him an Executor de son tort More 126. Sid. 7. and it was never yet doubted but that there may be such an Executor of a Term. Whereupon it was concluded that the Barr was good both as to the Form
sell them so that a Retorn could not be made to the Party distraining therefore it directs that the Sheriff shall take Pledges for returning the Beasts if a Return should be awarded which would be to little purpose if such Pledges were not liable upon the Retorn of Elongar Now as to the removing of the Pleint by Certiorari that makes the Case more strong in the Plaintiffs behalf because the Record it self una cum omnibus ea tangen is removed but by an Habeas Corpus the person is only removed and the Court hath thereby a Iurisdiction over his Cause which the inferior Court hath lost because it hath lost his Person 2. This Scire Facias is not brought too soon as hath been objected for 't is in vain to bring an Alias Pluries after the Sheriff had returned Elongat ' 't is like the common Case where a Scire Facias is brought against the Bail and Non est inventus is returned after which there never was an Alias or Pluries Capias And afterwards in Michaelmas-Term following Iudgment was given that the Pledges are liable Palmer versus Allicock BY the Statute of Distribution of Intestates Estates 't is provided 22 23 Car. 2. cap. 10. That in case there be no Wife then the Estate of the Husband dying intestate shall be distributed equally amongst the Children and if no Child then to the next of Kin of the Intestate in equal degree and to those who legally represent them A Man died intestate having no Wife at the time of his death and but one Child who was an Infant afterwards Administration was granted of the Fathers Estate durante minore aetate of the Child who died before the Age of seventeen Then Administration was granted by a peculiar to the next of Kin of the Infant and an Appeal was brought in the Arches by the next of Kin of the Father to revoke that Administration In a Prohibition the Question was Whether Administration de bonis non c. of the first Intestate shall be granted to the next of Kin of the Father or the Child Mr. Pollexfen argued this Term for the Plaintiff in the Prohibition viz. That the Statute gives a power to the Ordinary to take Bonds of such persons to whom Administration is committed the Forms of which Bonds are expressed in the Act and the Conditions are to make a true and perfect Inventory and to exhibit it into the Registry He hath also a power to distribute what remains after Debts Funeral Charges and Expences Thus the Law stands now Then as to the Case at the Barr three things are to be considered 1. If a Man dies intestate leaving two Sons and no Wife each hath a Moiety of his personal Estate immediately vested in him so that if one Brother should afterwards die intestate the other shall have the whole 2. If an Interest be vested in two then by this Statute the like Interest is vested in one so that if he die Intestate his Administrator shall have the Estate 3. If so then the consequence will be that in this case Administration de bonis non of the first Intestate shall go to the next of Kin of the Infant By Interest is meant a Right to sue for a share after Debts paid which Interest every person hath in a chose in action As if a Man doth covenant with two that they shall have such an Estate after Debts paid an Interest vests in them by this Covenant and if they die it goes to their Executors such also is the Interest of every Residuary Legatee Now if any of them die before the Residue can be distributed the Wife or Children of him so dying shall have it And to make this more clear it will be necessary to consider how the Law stood before the making of this Act. At the Common Law neither the Wife Child or next of Kin had any Right to a Share of the Intestates Estate but the Ordinary was to distribute it according to his Conscience to pious Vses and sometimes the Wife and Children might be amongst the number of those whom he appointed to receive it but the Law entrusted him with the sole disposition of it 2 Inst 399. Afterward by the Statute of Westm 13 E. 1. c. 19. 2. he was bound to pay the Intestate's Debts so far as he had Assets which at the Common Law he was not bound to do and an Action of Debt would then and not before Pl. Com. 277. Greisbrook versus Fox lie against him if he did alien the Goods and not pay the Debts Then the Statute of * 31 E. 1. c. 11. 31 E. 1. was made by which he was impowred to grant Admstration to the next of Kin and most lawful Friend of the Intestate 1 Inst 133. b. 2 Inst 397. 9 Co. Hensloes Case and by this Statute the person to whom Administration was committed might have an Action to recover the Intestate's Estate for at the Common Law he had no remedy But then afterwards the Statute of 21 H. 8. cap. 5. Enacts That the Ordinary shall grant Administration to the Widow or next of Kin of the person deceased or to both and this was the first Law which gave any Interest to the Wife to whom Administration being once granted the power of the Ordinary was determined Hob. 83. 1 Cro. 62 202. and he could not repeal it at his pleasure as he might at the Common Law But after the making of this Statute many mischiefs did still remain because the Administration being once committed the person to whom it was granted had the whole Estate and the rest of the Relations of the deceased were undone and therefore if his Children were under Age or beyond the Seas and a Stranger had got Administration it would have been a Bar to them And thus it continued many years the Ordinary still making distribution as he thought fit taking only a Bond from the person to whom he granted Administration for the purposes aforesaid and sometimes to dispose the Surplus after Debts and Legacies as he should direct and no Prohibition was granted to remedy these inconveniences till about the 12th year of King James the First Hob. 83. But now by this Act a good remedy is provided against these mischiefs and 't is such which takes away the Causes thereof which is that the Administrator shall not have the whole Estate but that a Distribution shall be made The Title of the Act shews the meaning thereof to be for the better Settlement of Intestates Estates and the Body of it shews how Distribution shall be made so that such Bonds which were usually given by the Administrator before this Law to make Distribution as the Ordinary should direct are now taken away and other Forms are prescribed and there can be no remedy taken upon such new Bonds till the Ordinary hath appointed the Distribution so that in effect this Act makes the Will
and Lodington cited in Mathew Manning's Case which was A Man being possessed of a Term for years devised it to his Wife for life and after her death to her Children unpreferred and made her Executrix and died she married again and had but one Daughter unpreferred and after the death of the Mother this Executory Devise was held good to the Daughter though it was by the Name of Children and she enjoyed the Term. 3. Object That this Act should be construed according to the Spiritual Law Answ That cannot be for all Statutes ought to be expounded according to the Rules of the Common Law and not according to their Law for they have no Law which gives power to sue nor to distribute to the Wife or next of Kin but the usual course was for the Ordinary to dispose of Intestates Goods to pious uses Then admitting this to be an Interest vested the consequence will be that it shall go to the Administrator and then Administration must be granted where the Estate legally ought to go The Administration of the Husband to the Goods of the Wife is grounded upon this reason 4 Co. 51. Ognel's Case 1 Cro. 106. because the Marriage is quasi a gift to him in Law It was not the only mischief before this Law that the Administrator run away with the whole Estate for if a Man died intestate leaving but one Son then beyond Sea and Administration was granted to a Stranger he who had right could not appeal after fourteen days which the Son could not do at that distance and so by this means a wrongful Administrator was entituled to the whole and he whose right it was had no remedy to recover at his return But now this inconvenience is likewise redressed by the Statute of Distributions for when the Son returns he may put the Bond in suit and for these reasons it was prayed that the Prohibition might stand Mr. E contra Williams argued for the Defendant in Easter-Term 2 Jacobi the substance of whose Argument was that though the Plaintiff had gotten Administration yet no Interest was thereby vested in him but that the Appeal was proper and for this he cited the Case of Beamond and Long Cro. Car. 208. which was Baron and Feme Administratrix of her former Husband recover in Debt the Feme died the surviving Husband brought a Scire Facias to have Execution and upon a Demurrer all the Court but Hide agreed that the Scire Facias would not lie for the Husband alone because it was a debt demanded by the Administratrix in auter droit This Statute hath not wholly altered the Common Law in this matter it only limits the Practice of Ecclesiastical Courts and makes provision for particular purposes viz. That Distribution shall be made to the Wife and Children and their Children which is so far introductory of a new Law but no farther so that the Right of Administration is as it was before and therefore must be granted to the next of Kin of the Father This Court hath no power to grant a Prohibition in such a Case and if it should 't is the first which ever was granted of this kind for it ought not to be determined here but in an Ecclesiastical Court which hath an original Iurisdiction of this Cause and the Appeal is in proprio loco To which Mr. Pollexfen answered that the contrary was very plain for here have been many Prohibitions granted even upon this very Act and the Question now before the Court is not concerning the manner of Distribution but the Right of Administration whether any Interest is vested in the Son or not 'T is true the Estate in Law goes to the Administrator but the Interest and Right to sue for and to recover the Estate goes to the Son so that if he should die before he is in actual possession his Administrator shall have it to pay Debts and to distribute c. In the Case of a Will if a Man should devise his Estate to his Wife and Children after Debts and Legacies paid an Interest vests in those Children which doth not differ from the Case at the Bar but that in the one Case the Testator makes the Will and in the other 't is made by an Act of Parliament Some Inconveniencies have been already mentioned if the Law should be otherwise taken but there be many more for if no Interest should vest in the Child till actual Distribution he could neither be trusted for his Education or Necessaries whilst living and no body would bury him if he should happen to die before the year and a day for the Funeral Charges would be lost It will likewise occasion delays in Administrators to make Distribution in hopes of gain neither will any honest man take an Administration upon himself because he can neither pay Mony safely or take a Release for if the Infant die before distribution it is void But notwithstanding these Reasons the Court gave Iudgment in Michaelmas-Term following That a Consultation should go the Chief Iustice being absent DE Termino Paschae Anno 1 Jac. II. in Banco Regis 1685. Coram Georgio Jefferies Mil ' Capital ' Justic ' Francisco Wythyns Mil ' Justiciariis Richardo Holloway Mil ' Justiciariis Thoma Walcot Mil ' Justiciariis Rex versus Marsh and others JAmes Marsh Information for a Forgery John W. and John L. were indicted upon the Coroners Inquest for the Murder of R. D. at H. in Kent and upon this Indictment they were arraigned and tried at the Barr this Term. The Fact upon the Evidence appeared to be that the Prisoners were Custom-House Officers who suspecting that some Wool would be transported went to the Sea-side in the Night time where there happened an Afray and the Prisoner Marsh was twice knocked down and recovering himself shot the deceased they were all acquitted of the Murder and then upon complaint made that Marsh was only found guilty upon the Coroners Enquest two of the said Iury were now sworn in Court who deposed that they upon the Coroners Enquest found the Indictment against Marsh alone which Indictment was in English but that one J.D. who was then Mayor of H. and who by virtue of that Office was also Coroner took the Indictment and told the Iury it must be turn'd into Latin which was done and he then inserted the Names of the two other Prisoners now at the Barr whereupon the said Mr. D. was now called and he appearing was bound in a Recognizance to answer this matter and the two Prisoners who were acquitted were likewise bound to prosecute him and the Iury Men were ordered to put their Affidavit in writing and swear it in Court An Information was afterwards exhibited against Mr. D. which was tried at the Barr in Trinity-Term following and he was found guilty but having spoke with the Prosecutor in the long Vacation he was only fined 20 Nobles in Michaelmas-Term Roberts versus Pain IN a Prohibition to
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
that is to make them Iudges whether this Duty is payable or not and so the Courts of Westminster who are the proper Iudges of the Revenue of the King who by this means will be without an Appeal will be excluded Curia This Court may take Cognizance of this Matter as well as in Cases of Bastardy 't is frequent to remove those Orders into this Court though the Act says That the two next Justices may take order as well for the punishment of the Mother as also for the relief of the Parish where it was born except he give Security to appear the next Quarter Sessions The Statute doth not mention any Certiorari which shews that the intention of the Law-makers was that a Certiorari might he brought otherwise they would have enacted as they have done by several other Statutes that no Certiorari shall lie Therefore the meaning of the Act must be that the determination of the Iustices of the Peace shall be final in Matters of Fact only as if a Collector should affirm that a person hath four Chimnies when he hath but two or when the Goods distrained are sold under the value and the Overplus not returned but the Right of the Duty arising by virtue of this Act was never intended to be determined by them Then the Order was filed and Mr. Pollexfen moved that it might be quashed for that by the Statute of 14 Car. 2. 14 Car. 2. c. 10. the Occupier was only chargeable and the Land-Lord exempted Now by the Proviso in that Act such a Cottage as is expressed in this Order is likewise exempted because 't is not of greater value than 20 s. by the year and 't is not expressed that the person inhabiting the same hath any Lands of his own of the value of 20 s. per annum nor any Lands or Goods to the value of 10 l. Now there having been several abuses made of this Law to deceive the King of this Duty occasioned the making of this subsequent Act. The abuses were these viz. The taking a great House and dividing it into several Tenements and then letting them to Tenants who by reason of their poverty might pretend to be exempted from this Duty The dividing Lands from Houses so that the King was by these Practices deceived and therefore in such Cases the charge was laid upon the Land-Lord but nothing of this appearing upon the Order it was therefore quashed Brett versus Whitchot IN Replevin Lands not exempted from repairing of the High-ways by grant of the King The Defendant avowed the taking of a Cup as a Fine for a Distress towards the repairing of the High-way The Plaintiff replyed and set forth a Grant from the King by which the Lands which were chargeable to send Men for the repairing c. were exempted from that Duty And upon a Demurrer the Question was Whether the Kings Letters Patents are sufficient to exempt Lands from the Charge of the repairing of the High-ways 2 3 Ph. Mar. c. 8. which by the Statute of Philip and Mary and other subsequent Statutes are chargeable to send Men for that purpose And it was argued that such Letters Patents were not sufficient because they were granted in this Case before the making of the Statute and so by consequence before any cause of Action and to prove this a Case was cited to this purpose In 2 E. 2 Inst 569. 3. an Action was brought against an Hundred for a Robbery upon the Statute of 13 E. 1. The Bishop of Litchfield pleaded a Charter of R. 1. by which that Hundred which was held in Right of his Church was exempted c. But it was held that this Charter could not discharge the Action because no such Action was given when the Letters Patents were made but long afterwards Iudgment was given for the Avowant Upton versus Dawkin TRespass quare vi armis liberam piscariam he did break and enter and one hundred Trouts ipsius Quer. Trespass for taking Fish ipsius querentis in libera piscaria not good in the Fishery aforesaid did take and carry away Vpon Not guilty pleaded there was a Verdict for the Plaintiff and this Exception was taken in arrest of Iudgment viz. For that the Plaintiff declared in Trespass for taking so many Fish ipsius Quer. in libera piscaria which cannot be because he hath not such a property in libera piscaria to call the Fish his own Pollexfen contra If there had not been a Verdict such a Construction might have been made of this Declaration upon a Demurrer but now 't is helped and the rather because a Man may call them pisces ipsius in a free Fishery for they may be in a Trunk so a Man may have a property though not in himself as in the Case of Iointenants where 't is not in one but in both yet if one declare against the other unless he plead the Iointenancy in Abatement the Plaintiff shall recover But notwithstanding the Iudgment was reversed Dominus Rex versus ...... THE Defendant was indicted for Barretry Barretry the Evidence against him was that one G. was arrested at the Suit of C. in an Action of 4000 l. and was brought before a Iudge to give Bail to the Action and that the Defendant who was a Barrister at Law was then present and did sollicite this Suit when in truth at the same time C. was indebted to G. in 200 l. and that he did not owe the said C. one farthing The Chief Iustice was first of Opinion that this might be Maintenance but that it was not Barretry unless it appeared that the Defendant did know that C. had no cause of Action after it was brought If a Man should be arrested for a trifling Cause or for no Cause this is no Barretry though 't is a sign of a very ill Christian it being against the express Word of God But a Man may arrest another thinking he hath a just cause so to do when as in truth he hath none for he may be mistaken especially where there hath been great dealings between the Parties But if the design was not to recover his own Right but only to ruine and oppress his Neighbour that is Barretry A Man may lay out mony in behalf of another in Suits at Law to recover a just Right and this may be done in respect of the Poverty of the Party but if he lend mony to promote and stirr up Suits then he is a Barretor Now it appearing upon the Evidence that the Defendant did entertain C. in his House and brought several Actions in his Name where nothing was due that he was therefore guilty of that Crime But if an Action be first brought and then profecuted by another he is no Barretor though there is no cause of Action The Defendant was found guilty DE Termino Paschae Anno 2 Jac. II. in Banco Regis 1686. Coram Edwardo Herbert Mil ' Capital ' Justic
' Francisco Wythens Mil ' Justiciariis Richardo Holloway Mil ' Justiciariis Thoma Walcot Mil ' Justiciariis MEmorandum That the First day of this Term Sir Thomas Jones Chief Justice of the Common-Pleas had his Quietus and Sir Henry Beddingfield one of the Justices of the same Court succeeded him in that Office Likewise the Honourable William Mountagu Esq Lord Chief Baron of the Exchequer had his Quietus and Sir Edward Atkyns one of the Barons of the same Court succeeded him Sir Job Charleton one of the Justices of the Common-Pleas had his Quietus but was made Chief Justice of Chester and Sir Edward Lutwich the King's Serjeant was made one of the Justices of the Common-Pleas and Serjeant Heath was made one of the Barons of the Exchequer Okel versus Hodgkinson THE Father and Son join in a Fine in order to make a Settlement upon the second Wife of the Father who was only Tenant by the Curtesie the Remainder in Tail to his said Son One of the Cognizors died after the Caption and before the Return of the Writ of Covenant and now a Writ of Error was brought to Reverse it and this was assigned for Error Curia If it had been in the Case of a Purchasor for a valuable Consideration the Court would have shewed him some favour but it being to do a wrong to a young Man they would leave it open to the Law THE first day of this Term being the 22th day of April there was a Call of Serjeants viz. Sir John Holt of Grays-Inn Recorder of London who was made Kings Serjeant Sir Ambrose Phillips made also Kings Serjeant Christopher Milton John Powell John Tate William Rawlinson George Hutchins William Killingworth Hugh Hodges and Thomas Geers They all appeared that day at the Chancery-Bar where having taken the Oaths the Lord Chancellor Jefferies made a short Speech to them after which they delivered a Ring to him praying him to deliver it to the King They went from the Inner-Temple-Hall to Westminster and Counted at the Common-Pleas and gave Rings the Motto whereof was DEUS REX LEX Dominus Rex versus Saloway SAloway drowned himself in a Pond and the Coroners Enquest found him Non Compos Mentis because 't is more generally supposed that a Man in his Senses will not be Felo de se The Kings Councel moved for a Melius Inquirendum and that the Inquisition might be quashed for that it sets forth Quod pred Defend circa horam octavam ante meridiem in quoddam stagnum se projecit per abundantiam aquae ibidem statim suffocat emergit ' erat which is insensible Pemberton Serjeant contra Here is no Exception taken to the substance of the Inquisition and the word suffocat had been sufficient if the word emergit ' had been left out The Court were of Opinion that there being another word in this Inquisition which carries the sense 't is therefore sufficient but if it had stood singly upon this word Emergit ' it had not been good And this Fact happening about the time of the general Pardon the Court was of Opinion that where an Interest is vested in the King a Pardon of all Forfeitures will not divest it but that nothing was vested here before Inquisition found 2. It was objected that this Inquisition ought to set forth that Saloway came by his death by this means Et nullo alio modo quocunque To which it was answered by Pemberton that in matters of Form only the Iudges have sent for the Coroner into Court and ordered him to amend it Rodney versus Strode AN Action on the Case was brought against three Defendants one of them suffered Iudgment to go by default In a joynt Action the Jury may sever the Damages and the other two pleaded Not Guilty The Cause was tryed the last Assises at Exeter and it was for imposing the Crime of Treason upon the Plaintiff and for assaulting and imprisoning of him there was a Verdict for the Plaintiff and 1000 l. damages against Mr. Strode and 50 l. against the other Defendant who pleaded The Plaintiff entred a nolle prosequi against him who let the Iudgment go by default and against the other Defendant for the 50 l. damages and took judgment only against Mr. Strode Serjeant Pemberton moved for a new Trial by reason of the excessive Damages which were not proportioned to the quality of the Plaintiff he being a Man of mean Fortune But it was opposed by the Plaintiff for that the Defendant pursued him as a Traytor and when he was apprehended for that Crime he caused him to be arrested for 1000 l. at the Suit of another person to whom he was not indebted so that upon consideration of the Circumstances of the Case the Court refused to grant a new Tryal Then Serjeant Pemberton for the Defendants moved in arrest of Iudgment and for cause shewed that the Iury have found both guilty and assessed several Damages which they cannot do because this is a joynt Action to which the Defendants have pleaded jointly and being found guilty modo forma the Iury cannot assess the damages severally for the damage is the same by the one as the other Cro. Eliz. 860. Austen vers Millard al' and therefore it hath been adjudged that where an Action of Battery was brought against three and one pleaded not guilty and the other two Son Assault demesne and several damages found against them it was held ill for that very reason because it was a joint offence 'T is true where there are divers Defendants and damages assessed severally the Plaintiff hath his election to take execution de melioribus damnis but this is when the Trials are at several times So 't is where they plead several Pleas Cro. Car. 239. Walsh versus Bishop as in an Action of Battery one pleads not guiity and the other justifies and both Issues are found for the Plaintiff in such case he may enter a non pros against one and take Iudgment against the other because their Pleas are several but where they plead jointly the Iury cannot sever the Damages But Mr. 1 Bulst 157. Sampson vers Cramfield al' Rast Entr. 677. b. Pollexfen for the Plaintiff insisted that even in this case damages may be assessed severally for where two Defendants are sued for the same Battery and they plead the same Plea yet damages may be assessed severally So was Trebarefoot and Greenway 's Case in this Court which was an Action for an Assault and Battery and false Imprisonment one of the Defendants pleaded not Guilty and the other justified Issue was joined and there was a Verdict for the Plaintiff and damages assessed severally the Plaintiff entred a nolle prosequi as to one and took judgment against the other and upon this a Writ of Error was brought in this Court and the Iudgment was affirmed So if an Action of Trespass be brought against two for taking of 100 l.
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
and that before the Pardon for these Reasons it cannot be revested in the party Serjeant Pemberton and Mr. E contra Finch contra The Question is what Interest the King hath by this Verdict for as to the Offence it self 't is within the Body of the Pardon for all Misdemeanours and Offences are pardoned and the Exception doth not reach this Case for that excepts Misdemeanours in answering of the Revenues Now that which arises by a Forfeiture can never be taken to be part of the King's Revenue because the Revenue is properly a stated Duty originally setled on the King and the Penalty to be inflicted for this Misdemeanour cannot be a Revenue because the Court have not yet given Iudgment so that 't is incertain what Fine they will set and this appears more plain because the King may assign his Revenue but cannot grant over a Penalty The Information is not grounded upon any Act of Parliament which establishes the Revenue but for concealing of a thing forfeited to prevent the Seisure thereof which indeed may be a casual Revenue as all Fines are so that if this should be taken as an Offence committed against the King in deceiving him of this Revenue then the first part of the Pardon dischargeth all such Offences and the Exception pardons none 'T is for these Reasons that the Case cannot fall under any of the words in the Exception no not under these Words viz. Mony due or to be due to the King because no Mony is yet due to him 'T is true the Iury have found it a Misdemeanour which is finable but until the Fine is set no Mony is due because the Court may set a greater or less Fine as they shall see cause And if any other Construction should be made of this Exception then every thing for which a Fine may be set is excepted and this will be to make the Pardon signifie nothing for what is meant by Offences and Misdemeanours if they should be pardoned and yet the Fine arising thereon should not But admitting that all Offences relating to the Concealment of collecting of the Revenue are excepted then this Revenue must be either antecedent or it must arise by the Fine 'T is no antecedent Revenue this appears by the Book of Rates wherein the King 's stated Revenue is set down and no mention of this so that the Revenue to which this relates must arise upon the Offence and what an absurd thing is it to say that all Offences are pardoned by one part of this general Pardon and by the Exception none are pardoned Besides the Information is not grounded upon that part of the Statute which inflicts a Penalty upon the person who exposeth prohibited Goods to Sale for then they would sue for the 50 l. therefore it must be upon the Forfeiture which is expresly pardoned and though there is a Conviction yet nothing is vested in the King before Iudgment because it may be arrested and therefore Tooms's Case is in no wise applicable to this for the Debt which was due to him was actually vested in the King by the Inquisition returned here which found him to be Felo de se Adjornatur Anonymus A Libel in the Admiralty against a Ship called the Sussex Ketch A Ship was pawned for necessaries and a Libel was exhibited in the Admiralty though the pawning was at the Land setting forth that the said Ship wanted Necessaries super altum Mare and that the Master took up several Sums of the Plaintiff at Roterdam for which he did hypothecate the said Ship and upon a Suggestion that this Contract was made at St. Katherines infra Corpus Comitatus Council moved for a Prohibition upon which a Question did arise whether a Master of a Vessel can pawn it on the Coast for Necessaries and the person to whom 't is pawned shall sue for the Mony in the Admiralty here By the Common Law a Master of a Ship had neither a general or special property in it Sid. 453. and therefore could not pawn it but by the Civil Law in cases of necessity he may rather than the Voyage should be lost and if any such cause appear 't is within the Iurisdiction of the Admiralty but then the pawning must be super altum Mare Now the Statute of 28 H. Cap. 15. H. 8. which abridgeth the Iurisdiction of the Admiralty in Trials of Pyrates and which appointeth Offences committed on the Sea to be tried by a Commission under the great Seal directed to the Admiral and others according to the course of the Common Law and not according to the Civil Law gives a remedy in this very Case Molloy de Jure maritimo 62. for it provides that it shall not be prejudicial to any person for taking of Victuals Gables Rapes c. in cases of necessity upon the Sea paying for the same So that this is an excepted Case because of the Necessity and 't is like the Cases of suing for Mariners Wages in this Court The Service was at Sea so that the Admiralty hath no proper Iurisdiction over this Matter 'T is true Prohibitions have been denied for Mariners Wages the first is reported by Iustice Winch Winch. f. 8. but the reason seems to be because they proceed in the Admiralty not upon any Contract at Land but upon the Merits of the Service at Sea and allow or deduct the Wages according to the good or bad performance of the Services in the Voyage Besides there is an Act of Parliament which warrants she Proceedings in the Court of Admiralty for Mariners Wages Cotton Abr. f. 340. nu 37. For in a Parliament held in the 14th year of Richard II. the Commons petititioned for remedy against great Wages taken by Masters of Ships and Mariners to which the King answered that the Admiral shall appoint them to take reasonable Wages or shall punish them Now the reason of the Civil Law which allows the pawning of a Ship for necessaries upon the high Sea seems to be plain because there may be an extraordinary and invincible necessity at Sea but not at Land So that this being a Contract beyond Sea and at Land the Court of Admiralty cannot have any Iurisdiction over it 4 Inst 134. Cro. Car. 603. Latch 11. 2 Brownl 37. for where the Common Law cannot relieve in such Cases the Admiralty shall not because they are limited to Acts done upon the Sea and in cases of necessity for if the Law should be otherwise the Master may take up as much Mony as he will Mr. Pollexfen contra 1 Rolls 530. That things arising upon Land may be sued for in the Admiralty is no new thing for so it is in all Cases of Stipulation Mariners Wages are also recoverable in that Court not by vertue of any Act of Parliament Exton Mant. Diraeologiae f. 192. but because it grows due for Services done at Sea which is properly a Maritime Cause though the
quarter for by such means Diseases may be brought into a Family and a Man hath no security either for his Goods or Mony This was the Opinion of Iustice Twisden in Coutrell's Case Sid. 29. and it seems to be very natural and therefore the chief reason why power was given by the Statute to the Overseers to raise mony was that they might place poor Children to such who were willing to take them for Mony for otherwise they might compel a Man to receive his Enemy into his Service He relied on the Case of the King and Price Hillary 29 and 30th of Car. II. which was an Order of the like nature moved to be quashed And Iustice Twisden said in that Case that all the Iudges of England were of Opinion that the Iustices had not such a Power and therefore that Order was quashed 'T is plain that by the Statute of the 43 Eliz. E contra the Iustices may place out poor Children where they see it convenient and so the constant practice hath been so is the Resolution of the Iudges in Dalton which was brought in by the Lord Chief Iustice Hyde but denied so to be by Iustice Twisden for no other reason but because Iustice Jones did not concur with them In Price 's Case this matter was stirred again but there hath been nothing done pursuant to that Opinion Since then the Iustices have a power to place out poor Children 'T is no Objection to say that there may be an inconvenience in the exercise of that power by placing out Children to improper persons for if such things are done the Party hath a proper remedy by way of Appeal to the Sessions Three Iustices were of Opinion that the Iustices of Peace had such a Power and therefore they were for confirming the Order and Iustice Dolbin said it was so resolved in the Case of the King and Gilliflower in the Reign of King James the first Foster being then Chief Iustice tho' the Iudges in Price 's Case were of another Opinion The Chief Iustice was now likewise of a different Opinion for the Statute means something when it says that a Stock shall be raised by the Taxation of every Inhabitant c. for putting out of Children Apprentice There are no compulsory words in the Statute for that purpose nor any which oblige a Master to take an Apprentice and if not the Iustices have not power to compel a Man to take a poor Boy for possibly such may be a Thief or Spy in the Family But this Order was quashed for an apparent fault which was that the Statute has entrusted the Churchwardens and Overseers of the Poor by and with the Approbation of two Iustices to bind Apprentices c. And the Churchwardens are not mentioned in this Order DE Term. Sancti Hill Anno 1 Gulielmi Mariae Regis Reginae in Banco Regis 1689. Thirsby versus Helbot DEBT upon a Bond for performance of an Award Award void where a person who is a Stranger to the Submission is ordered to be a Surety Vpon Nullum Arbitrium pleaded the Plaintiff replyed and shewed an Award made which amongst other things was that the Defendant should be bound with Sureties such as the Plaintiff should approve in the Sum of 150 l. to be paid to him at such a time and that they should seal mutual Releases and assigned a Breach in not giving of this Bond. There was a Verdict for the Plaintiff and now Serjeant Pemberton moved in arrest of Iudgment that this was a void Award because 't is that the Defendant shall be bound with Sureties c. and then Releases to be given now the Sureties are Strangers to the Submission and therefore the Defendant is not bound to procure them He relied upon the Case of Barns and Fairchild 1 Roll. Abr. 259. which was an Award that all Controversies c. should cease and that one of the Parties should pay to the other 8 l. and that thereupon he should procure his Wife and Son to make such an Assurance c. this was held to be void because it was to bind such persons who were not Parties to the Submission Tremain Serjeant contra E contra That Cause doth not come up to this at the Barr because by this Award the Party was to sign a general Release whether the Defendant paid the Mony or not But the Court was of Opinion that the Award was void because it appointed the Party to enter into a Bond with such Sureties as the Plaintiff shall like and Releases then to be mutually given Now if the Plaintiff doth not like the Security given then he is not to seal a Release and so 't is but an Award of one side Savier versus Lenthal ASsisa ven ' recogn ' si Willielmus Lenthal Armiger Henricus Glover Armiger Johannes Philpot Generosus Thomas Cook Generosus Samuel Ellis Generosus injuste c. Assize disseisiverunt Thomam Savier de libero tenemento suo in Westm infra triginta annos c. Et unde idem Thomas Savier per Jacobum Holton Attornatum suum queritur quod disseisiverunt eum de officio Marr ' Maresc ' Domini Regis Dominae Reginae coram ipso Rege Regina cum pertin ' c. The Cryer made Proclamation and then called the Recognitors between Thomas Savier Demandant and William Lenthal Tenant who were all at the Bar and severally answered as they were called Then Mr. Goodwin of Greys-Inn arraigned the Assize in French but the Count being not in Parchment upon Record the Recognitors were for this time discharged and ordered to appear again the next day But the Council for the Tenant relied on the authority in Calvert's Case that the Title ought to be set forth in the Count Plo. Com. 403. 4 E. 4.6 which was not done now and therefore the Demandant ought to be nonsuited But the Writ being returnable that day was ex gratia Curiae adjourned to the Morrow afterward and if the Demandant did not then make a Title he must be nonsuited The next day the Iury appeared Then the Cryer called Thomas Savier the Demandant and then the Tenants and afterwards the Recognitors and the Assize being arraigned again the Demandant set forth his Title Then Sir Francis Winnington of Council for Mr. Lenthal one of the Tenants appeared after this manner Vouz avez icy le dit Williem Lenthal jeo prye oyer del Brief del Count. Then the other Tenants were called again three times and they not appearing Process was prayed against them Doe versus Dawson BAil was put in to an Action brought by the Plaintiff Bail liable if the Principal had two Terms after an Injunction dissolved and before he declared the Defendant obtained an Injunction to stay Proceedings at Law which was not dissolved for several Terms afterwards Then the Injunction was dissolved and the Plaintiff delivered his Declaration and had Iudgment by default
ought to be left out and of that Opinion was the Court and therefore a Rule was made that he might discontinue this Action without Costs Mordant versus Thorold Hill 1 2 Gulielmi Rotulo 340. THE Plaintiff brought a Scire Fac. upon a Iudgment The Case was thus Viz. Ann Thorold recovered in Dower against Sir John Thorold in which Action Damages are given by the Statute of Merton 20 H. 3. c. 1. Sir John Thorold brought a Writ of Error in B. R. and the Iudgment was affirmed Then the Plaintiff in Dower brought a Writ of Enquiry for the Damages and married Mr. Mordant and died before that Writ was executed Mr. Mordant takes out Letters of Administration to his Wife and brought a Sci. Fa. upon the Iudgment and the question was whether it would lie This depended upon the construction of the Statute of King Charles the II. which enacts That in all personal Actions 17 Car. 2. c. 8. and real and mixt the death of either party between the Verdict and the Iudgment shall not hereafter be alledged for Error so as such Iudgment be entred within two Terms after such Verdict Serjeant Pemberton insisted that this was a judicial Writ and that the Administrator had a right to it though the Wife died before the Profits were ascertained by the Writ of Enquiry 't is no more than a plain Sci. Fa. upon a Iudgment which an Executor may have and which was never yet denied though this seems to be a Case of the first Impression The Council on the other side argued that 't is true an Executor may have a Scire Facias upon a Iudgment recovered in the life of the Testator by reason only of such Recovery but this Scire Facias is brought for what never was recovered because the Wife died before any thing was vested in her for the Iudgment will stand so as to effect the Lands but not for the Damages Curia When a Statute which gives a remedy for mean Profits is expounded it ought to be according to the Common Law Now where entire Damages are to be recovered and the Demandant dies before a Writ of Enquiry executed the Executor cannot have any remedy by a Scire Facias upon that Iudgment because Damages are no duty till they are assessed Sed adjornatur DE Term. Sanctae Trin. Anno 2 Gulielmi Mariae Regis Reginae in Banco Regis 1690. Shotter versus Friend Vxor ' Hill 2 Willielmi Rot. 39. THE Plaintiff and his Wife declared upon a Prohibition setting forth Proof by one Witness good in the Spiritual Court that John Friend on the 13th of October 22 Car. 2. made his Will by which he bequeathed to Mary Friend 10 l. to be paid to her within two years after his decease and that he made Jane the Wife of the Plaintiff Shotter Executrix and dyed that the said Executrix whilst sole and unmarried paid the said Legacy to Mary Friend who is since dead that Thomas Friend the Husband of the said Mary did after her death demand this Legacy in the Consistory Court of the Bishop of Winton that the Plaintiff pleaded payment and offered to prove it by one single Witness which Proof that Court refused though the Witness was a person without Exception and thereupon Sentence was given there against the Plaintiff which Sentence was now pleaded and upon Demurrer to the Plea The Question was whether upon the whole matter the Defendant should have a Consultation or whether a Prohibition should be granted because the proof by one Witness was denied by that Court. It was argued that the Defendant should not have a Consultation because Matters Testamentary ought to have no more favour than things relating to Tythes in which Cases the Proof by one Witness hath been always held good So 't is in a Release to discharge a Debt which is well proved by a single Testimony and it would be very inconvenient if it should be otherwise for Feoffments and Leases may come in question which must not be rejected because proved by one Witness A Modus decimandi comes up to this Case upon the Suggestion whereof Prohibitions are never denied and the chief reason is because the Spiritual Court will not allow a Modus to be any discharge of Tythes of Kind The Courts of Equity in Westminster-Hall give Relief upon a Proof by one Witness so likewise do the Courts of the Common Law if the Witness is a good and credible person 'T is true a Prohibition shall not go upon a Suggestion that the Ecclesiastical Court will not receive the Testimony of a single Witness If the Question is upon Proof of a Legacy devised or Marriage or not or any other thing which originally doth lie in the Cognizance of that Court but payment or not payment is a matter of Fact triable at the Law and not determinable there if therefore they deny to take the Evidence of a single Witness a Prohibition ought to go 2 Inst 608. 2. The Sentence is no obstacle in this Case because the Plaintiff had no Right to a Prohibition until the Testimony of his Witness was denied and Sentence thereupon given and this is agreeable to what hath been often done in cases of like nature As for instance Cro. Eliz. 88. Moor 907. Prohibitions have been granted where the Proof of a Release of a Legacy by one Witness was denyed So where the Proof of payment of Cythes for Pidgeons was denied upon the like Testimony Cro. Eliz. 666. Moor 413. 2 Rol. Rep. 439. 2 Rol Abr. 300. pl. 9. 299 pl. 14 17. Yelv. 92. Latch 117. 3 Bulst 242. Hutt 22. So where a Suit was for Subtraction of Cythes and the Defendant pleaded that he set them out and offered to prove it by by one Witness but was denied a Prohibition was granted And generally the Books are that if the Spiritual Court refuse such Proof which is allowed at the Common Law they shall be prohibited There is one Case against this Opinion which is that of Roberts in 12 Co. 12 Co. 65. Rep. but it was only a bare Surmise and of little Authority Those who argued on the other side held that a Consultation shall go E contra and that for two Reasons 1. Because a Prohibition is prayed after Sentence 2. Because the Ecclesiastical Court have an original Iurisdiction over all Testamentary things As to the first Point 'T is plain that if that Court proceed contrary to those Rules which are used and practised at the Common Law yet no Prohibition ought to go after Sentence but the proper remedy is an Appeal 2. It cannot be denied but that that Court had Cognizance of the principal matter in this Case which was a Legacy and Payment or not is a thing collateral Now wherever they have a proper Iurisdiction of a Cause both that and all its dependences shall be tried according to their Law which rejects the Proof by a single Witness
Trust as in the Case of Wardship formerly which always went to the Executor of the Grantee and which was of greater consideration in the Law than the feeding or clothing of an Ideot and of that Opinion was the Court that the King had a good Title to dispose of both the Ward and the Ideot one till he was of Age and the other during his Ideocy Iudgment for the Defendant DE Term. Sanctae Trin. Anno 36 Car. II. in Banco Regis 1684. Reeves versus Winnington THE Testator was a Citizen and a Freeman of London A Devise of all his Estate passed a Fee and being seised in Fee of a Mesuage c. and likewise possessed of a considerable personal Estate made his Will in which there was this Clause viz. I hear that John Reeves is enquiring after my Death but I am resolved to give him nothing but what his Father hath given him by Will I give all my Estate to my Wife c. The Question was Whether by these words the Devisee had an Estate for Life or in Fee in the Mesuage It was argued that she had only an Estate for life because the Words All my Estate cannot be construed to pass a Fee for it doth not appear what Estate was intended and Words in a Will which go to disinherit an Heir must be plain and apparent A Devise was in these Words viz. Sid. 191. Bowman versus Milbank I give all to my Mother all to my Mother and it was adjudged that a Fee did not pass which is as strong a Case as this for by the word All it must be intended All that was in his power to give which is as comprehensive as if he had said All my Estate 'T is true Kerman and Johnson Stiles 281. 1 Rol. Abr. 834. Cro. Car. 447. it hath been adjudged that where a Man devised his whole Estate to his Wife paying his Debts and Legacies that the word Estate there passed a Fee because it was for the benefit of the Creditors there being not personal Assets sufficient to pay all the Debts But that is not found in this Case therefore the Word Estate being doubtful and which will admit of a double construction shall not be intended to pass a Fee Mr. E contra Pollexfen contra The first part of this Sentence consists in negative words and those which are subsequent explain the intention of the Testator viz. That John Reeves should take nothing by the Will The Word Estate doth comprehend the whole in which the Owner hath either an Interest or Property like a Release of all Actions which is a good discharge as well of real as personal Actions In common understanding it carries an interest in the Land and then 't is the same as if he had devised all his Fee-simple Estate In the Case of Bowman and Milbank it was adjudged that a Fee-simple did not pass by the Particle All because it was a Relative Word and had no Substantive joined with it and therefore it might have been intended All his Cattle All his Goods or All his personal Estate for which incertainty it was held void yet Iustice Twisden in that Case said that it was adjudged that if a Man promise to give half his Estate to his Daughter in Marriage that the Lands as well as the Goods are included The Testator devised all his Tenant-right Estate held of such a Manor 3 Keb. 245. Mod. Rep. 100. and this being found specially the Question was Whether any more passed than an Estate for Life because he did not mention what Estate he intended but it was held that the Devisee had a Fee-simple because the Words were as comprehensive as if he had devised all his Inheritance and by these Words a Fee-simple would pass Curia It plainly appears that the Testator intended nothing for John Reeves therefore he can take nothing by this Will and that the Devisee hath an Estate in Fee-simple for the Words All my Estate are sufficient to pass the same Rex versus Sir Thomas Armstrong Saturday June 14th THE Defendant was outlawed for High-Treason and being taken at Leyden in Holland was brought into England and being now at the Bar he desired that he might have leave of the Court to reverse the Outlawry and he tried by virtue of the Stature of Ed. 6. which Enacts 5 6 E. 6. cap. 11. That if the Party within one year after the Outlawry or Judgment thereupon shall yield himself to the Chief Justice of England and offer to traverse the Indictment upon which he was outlawed he shall be admitted to such Traverse and being acquitted shall be discharged of the Outlawry He alledged that it was not a year since he was outlawed and therefore desired the benefit of this Law But it was denied because he had not rendered himself according to the Statute but was apprehended and brought before the Chief Iustice Whereupon a Rule was made for his Execution at Tyburn which was done accordingly DE Term. Sancti Mich. Anno 36 Car. II. in Banco Regis 1684. Hebblethwaite versus Palmes Mich. 36 Car. II. in B. R. Rot. 448. AN Action on the Case was brought in the Common-Pleas Possession is a sufficient cause to maintain an Action against a wrong doer for diverting of a Watercourse The Declaration was That the Defendant Primo Augusti c. injuste malitiose did break down an ancient Damm upon the River Darwent by which he did divert magnam partem aquae ab antiquo solitu cursu erga molendinum ipsius quer c. ad dampnum c. The Defendant pleaded that before the said Breach made he was seised in Fee of an ancient Mill and of six Acres of Land adjoyning upon which the said Damm was erected time out of mind to turn the Water to his said Mill which Damm was always repaired and maintained by the Defendant and the Tenants of the said Land that his Mill was casually burnt and he not intending to Re-build it suffered the Damm to be broken down and converted the Timber to his own use being upon his own Soil prout ei bene licuit c. The Plaintiff replied that by the breaking of the Damm the Water was diverted from his Mill c. The Defendant rejoyned and justified his Plea and Traversed that the Mill of the Plaintiff was an ancient Mill. And upon a Demurrer to this Rejoynder Iudgment was given for the Plaintiff and a Writ of Error now brought to reverse that Iudgment and for the Defendant in the Action it was argued 1. That the Declaration is not good because the Plaintiff had not set forth that his Mill was an ancient Mill. 2. Because he had not entituled himself to the Watercourse 3. That the Plea was good in Bar to this Action because the Defendant had sufficiently justified having a Right to the Land upon which the Damm was erected and always repaired it As to the first Point it
hath been the constant course for many years in such Actions to set forth the Antiquity of the thing either in express terms or in words which amount to it In 8 Eliz. such an Action was brought Dyer 248. B. Quod defendens divertit multum aquae cursum per levationem constructionem Waerae c. per quod multum aquae quae ad molendinum of the Plaintiff currere consuevit e contra recurrit Which word consuevit doth imply that it was an ancient Mill for otherwise the Water could not be accustomed to run to it Anno 25 Eliz. the like Action was brought 1 Leon. 273. Russel versus Handford wherein the Plaintiff declared Quod cum molendinum quoddam ab antiquo fuit erectum whereof he was seized and the Defendant erected a new Mill per quod cursus aquae pred coarctatus fuit And eighteen years afterwards was Lutterell 's Case in this Court 4 Co. 86. wherein the Plaintiff shewed that he was seized of two old and ruinous Fulling Mills and that time out of Mind magna pars aquae cujusdam rivoli did run from a certain place to the said Mills and that during all that time there had been a certain Bank to keep the current of the said Water within its bounds c. That the Plaintiff did pull down those old Mills and erected two new Mills and the Defendant digged down the Bank c. The like Action happened 14 Car. I. Cro. Car. 499. Palm 290. it was for diverting an ancient Watercourse Qui currere consuevisset debuisset to the Plaintiffs Mill. In all which Cases 1 Roll. Abr. 107. tho' there are various ways of declaring yet they all shew that the constant course was to alledge that the Mills were ancient for 't is that which intitles the Party to his Action 'T is for this reason also that if two Men have contiguous Houses and one stops the other's Lights if they are not ancient an Action will not lye for stopping of them up There may be some seeming difference between a Right to a Watercourse and to Lights in a Window for no Man can prescribe to Light Quatenus such because 't is of common Right to all Men and cannot be claimed but as affixed to a particular thing or purpose A Watercourse may be claimed to several purposes but Water is of as universal use and benefit to Mankind as Light and therefore no particular Man hath a Right to either but as belonging to an antient House or ruunning to an ancient Mill or for some other antient Vse Anno 15 Car. Cro. Car. 575. Sands versus Trefusis I. The Plaintiff Sands declared that he was seised in Fee of a Mill and had a Watercourse running thro' the Defendants Lands to the said Mill and that he stopped it up There was a Demurrer to this Declaration and the same Objection as now was then taken to it viz. that he had not shewed that it was an ancient Mill. And though the Court seemed to over-rule that Objection yet no Iudgment was given The Case of Sly and Mordant was there cited which is Reported by Mr. 1 Leon. 247. id 1 Rol. Abr. 104. Leonard and is this viz. That the Plaintiff was seised in Fee of certain Lands c. and the Defendant had stopped a Watercourse by which his Land was drowned it was adjudged that the Action would lie for this Injury but that is no Authority to support this Declaration 2. The Plaintiff hath not entituled himself to this Water-course either by Prescription or that the Water debuit vel consuevit currere to his Mill for so is the Pleading in Lutterell 's Case and in all the other Cases before cited 3. Therefore the Plea in Bar is good the Defendant having sufficiently justified his Right and the Plaintiff having not Prescribed to it here can be no Trespass done and so concluded that Iudgment ought to be reversed This Case depends upon the Declaration Ex parte Quer. for the Plea in Bar is only argumentative 't is no direct answer to it and the Replication and Rejoynder are not material The Plaintiff hath a good cause of Action for it cannot be denied but where an injury is done to another and Damages ensue 't is sufficient to maintain an Action of Trespass or upon the Case 'T is plain that an Injury was done to the Plaintiff and the Damage is as manifest by diverting of the Watercourse and the loss of his Mill and the Fact is laid to be injuste malitiose The Defendant gives no reason why he injured him but only that he had no use of the Water because his Mill was burnt This is an Action brought by the Plaintiff upon his Possession against a wrong doer Roll. 339 394. Palm 290. in which it is not necessary to be so particular as where one prescribes for a Right A Man may have a Watercourse * Bracton lib. 4. cap. 32. by Grant as well as by Prescription and in such case be need not set forth any particular use of the Water as that it ought to run to his Mill neither is it absolutely necessary to mention the Mill for that is only to inform the Court of the Damages In the Printed Entries there are many Forms of Declarations without any Prescription Rast Ent. 9. B. or setting forth that the Mill was antient as where an Action was brought against the Defendant De placito quare vi armis stagnum molendini ipsius the Plaintiff fregit and this was only upon the Possession Antea The Case in Dyer is a good Authority to support this Action for 't is as general as this viz. for diverting a Watercourse per Constructionem Waerae and doth not shew where it was erected or what Title he had to it So where the Action was for disturbing the Plaintiff 2 Cro. 43. Dent vers Oliver Nota This was after Verdict in collecting of Toll and doth not shew what Title he had to it either by Prescription or Grant but declared only that he was seised in Fee of a Manor and Fair and held good And it was the Opinion of my Lord Hobert That a Declaration for breaking down of a Bank generally includentem aquam Hob. 193. Biccot versus Ward running to the Plaintiffs Mill was good The Authorities cited on the other side do rather maintain this way of Pleading than the contrary for those Cases are wherein the Plaintiff declared that the Water currere consuevit debuisset to the Plaintiffs Mill time out of mind Cro. Car. 499. which words are of the same signification as if he had shewed it to be an antient Mill and that agrees in substance with this Case for the Water cannot be diverted ab antiquo solito cursu if the Mill was not ancient The word solet implies Antiquity Reg. 153. The Writ De secta admolendinum is
day of Appearance he is to see that he appear at the day either by keeping of him in Custody or letting of him to Bail the end of the Arrest is to have his Body here If he had not been bailed then he had still remained in Custody and the Plaintiff would have his proper remedy but being once let to Bail and not appearing in Court according to the Condition of the Bond that seems to be the fault of the Defendant who had his Body before the day of Appearance Iudgment for the Defendant DE Term. Sancti Hill Anno 1 Jac. II. in Banco Regis 1685. Serjeant Hampson's Case BY the Statute of Queen Elizabeth 't is Enacted 5 Eliz. c. 23. That if the person excommunicated have not a sufficient Addition or if 't is not contained in the Significavit that the Excommunication proceeds for some cause or contempt or of some original Matter of Heresie refusing to have his Child baptized to receive the Sacrament to come to Divine Service or Errors in Matters of Religion or Doctrine Incontinency Usury Simony Perjury in the Ecclesiastical Court or Idolatry he shall not incurr the Penalties in the Act. Serjeant Hampson was excommunicated for Alimony and now Mr. Girdler moved that he might be discharged because none of the aforesaid Causes were contained in the Significavit Curia He may be discharged of the Forfeiture for that reason but not of the Excommunication Anonymus ONE who was outlawed for the Murder of Sir Edmund Bury Godfrey now brought a Writ of Error in his Hand to the Bar praying that it might be read and allowed It was read by Mr. Astry Clerk of the Crown The Errors assigned were viz. That it did not appear upon the Return of the Exigent in the first Exact ' that the Court was held pro Comitatu That the Outlawry being against him and two other persons 't is said in the last Exact ' that Non comperuit but doth not say nec eorum aliquis comperuit For these Reasons the Outlawry was reversed and he held up his Hand at the Barr and pleaded Not-guilty to his Indictment and was admitted to Bail and afterwards he was brought to his Trial and no Witness in behalf of the King appearing against him he was acquitted The Mayor and Commonalty of Norwich versus Johnson A Writ of Error was brought to reverse a Iudgment given for the Plaintiff in the Common-Pleas in an Action of Waste Waste lies against an Executor de son tort of a Term. The Declaration was that the Plaintiff demised a Barn to one Took for a certain Term by vertue whereof he was possessed and being so possessed died that the Defendant was his Executor who entred and made Waste by pulling down of the said Barn The Defendant pleaded that Took died intestate and that he did not administer The Plaintiff replyed that he entred as Executor of his own Wrong and to this Plea the Defendant demurred and the Plaintiff joined in the Demurrer This Case was argued by Mr. Appleton of Lincolns-Inn for the Plaintiff who said That an Action of Waste would not lie against the Defendant because the Mayor and Commonalty c. had a remedy by an Assise to recover the Land upon which the Barn stood and a Trover to recover the Goods or Materials and that such an Action would not lie against him at the Common Law because he neither was Tenant by the Curtesie nor in Dower against whom Waste only lay So that if the Plaintiff is entituled to this Action it must be by vertue of the Statute of Gloucester 6 Ed. 1. c. 5. but it will not lie against the Defendant even by that Statute because the Action is thereby given against the Tenant by the Curtesie in Dower for Life or Years and treble Damages c. But the Defendant is neither of those and this being a penal Law which not only gives treble damages but likewise the Recovery of the place wasted ought therefore not to be taken strictly but according to Equity Tenants at sufferance or at Will by Elegit or Tenants by Statute Staple 11 H. 6. c. 5. and also Pernors of Profits were never construed to be within this Statute and therefore a particular Act was made to give him in Reversion an Action of Waste where Tenant for life or years had granted over their Estates and yet took the Profits and committed Waste Then the Question will be Co. Lit. 371. what Estate this Executor de sontort hath gained by his Entry And as to that he argued that he had got a Fee-simple by Disseisin and that for this reason the Plaintiff was barred from this Action for if the Son purchase Lands in Fee and is disseised by his Father who maketh a Feoffment in Fee to another with Warranty and dieth the Son is for ever barred for though the Disseisin was not done with any intention to make such a Feoffment 1 Roll. Abr. 662. yet he is bound by this Alienation So where a man made a Lease for life and died and then his Heir suffered a Recovery of the same Land without making an actual Entry this is an absolute Disseisin because the Lessee had an Estate for life but if he had been Tenant at Will it might be otherwise But admitting that the Defendant is not a Disseisor then the Plaintiffs must bring their Case to be within the Statute of Gloucester as that he is either Tenant for life or years If he is Tenant for Life he must be so either by right or by wrong He cannot be so by right because he had no lawful Conveyance made to him of this Estate besides 't is quite contrary to the Pleading which is that he entred wrongfully Neither can he be so by wrong for such particular Estates 6 Co. 25. as for life or years cannot be gained by Disseisin and so is Heliar's Case in 6 Co. Then if this should be construed an Estate for years it must be gained either by the Act of the Party or by the Act of the Law but such an Estate cannot be gained by either of those means First it cannot be gained by the Act of the Party Moor 126. Kendrick versus Burges because an Executor de son tort cannot have any interest in a Term and for this there is an express Authority in this Court which was thus viz. A Lease in Reversion for years was granted to a man who died intestate his Wife before she had administred sold this Term to the Defendant and afterwards she obtained Letters of Administration and made a Conveiance of the same Term to the Plaintiff and Iudgment was given for the last Vendee because it was in the case of a Reversion of a Term for years upon which no Entry could be made and of which there could be no Executor de son tort though it was admitted by the Court that such an Executor might make a good sale of
the Common Law for a false Oath made by any Witness and therefore an Action will not lye for a scandalous Affidavit Adjornatur Anonymus NOta An Action of Assault and Battery Release of one Def. shall not discharge the rest of a personal thing and false imprisonment was brought against four Defendants the Plaintiff had Iudgment and they brought a Writ of Error The Plaintiff in the Action pleaded the Release of one of them and to this Plea all four jointly demur The Opinion of the Court was that Iudgment might be given severally for they being compelled by Law to join in a Writ of Error the release of one shall not discharge the rest of a personal thing But where divers are to recover in the personalty 6 Co. Ruddock's Case the Release of one is a Bar to all but it is not so in point of discharge If two Coparceners make a Lease of a House and the Rent is in arrear and one of them brings the Action and recovers the Iudgment shall be arrested because one alone hath recovered in Debt for a moiety when both ought to join But it is agreed that if one Tenant in Common make a Lease rendring Rent which afterwards is in arrear Litt. Sect. 316. they must join in an Action of Debt because it savours of the Personalty But 't is otherwise in case of the Realty DE Term. Sanct. Trin. Anno 2 Jac. II. in Banco Regis 1686. Herbert Chief Justice Wythens Justices Holloway Justices Wright Justices Sawyer Attorny General Powis Sollicitor General Aldridge versus Duke ASsault Trespass continued many years and the Statute of Limitations pleaded the Jury gives Damages only for the last six years Battery Wounding and Imprisoning of him from the 10th of August 24 Car. 2. usque exhibitionem Billae The Defendant pleaded not Guilty infra sex infra Annos The Plaintiff replied that the Writ was sued out 2 Octobris 1 Jacobi 2. And that the Defendant was Guilty within six years next before the Writ brought Vpon this Issue was joyned and a Verdict was given for the Plaintiff and entire damages given Mr. Pollexfen moved two Exceptions in Arrest of Iudgment 1. That a Verdict cannot help what appears to be otherwise upon the face of the Record Now here the Plaintiff declared that he was imprisoned the 10th of August 24 Car. 2. which is 13 years since and being one entire Trespass the Issue is found as laid in the Declaration which cannot be for so many years between the cause of Action and bringing of the Writ for if a Trespass be continued several years the Plaintiff must sue only for the last six years for which he hath a compleat cause of Action but when those are expired he is barred by the Statute When the Plaintiff hath any cause of Action Sid. 25. then the Statute of Limitations begins as in an Action on the Case for words if they are actionable in themselves without alledging special damages the Plaintiff will recover Damages from the time of the speaking and not according to what loss may follow So in Trover and Conversion when there is a cause of Action vested and the Goods continue in the same possession for seven years afterwards in such case 't is the first conversion which entitles the Plaintiff to an Action So in the Case at Bar tho' this be a continued imprisonment yet so much as was before the Writ brought is barred by the Statute Thompson contra The Verdict is good for the Iury reject the beginning of the trespass and give Damages only for that which falls within the six years and this may be done because 't is laid usque exhibitionem Billae If the Defendant had pleaded not Guilty generally Cro. Car. 160 381 404. then Damages must be for the 13 years though the Plaintiff of his own shewing had brought his Action for a thing done beyond the time limited by the Statute but having pleaded not Guilty at any time within six years if the Verdict find him guilty within that time 't is against him As to the Objection that the Cause of Action ariseth beyond six years tho' it doth appear so in the Declaration yet that doth not exclude the Plaintiff for there might have been Process out before or he might be disabled by an Outlawry which may be now reversed or he might be in Prison and newly discharged from which time he hath six years to begin his Action for being under either of these circumstances the Statute doth not hurt him Curia If an Action of false Imprisonment be brought for seven years and the Jury find the Defendant guilty but for two days 't is a Trespass within the Declaration This Statute relates to a distinct and not to a continued Act for after six years it will be difficult to prove a Trespass many accidents may happen within that time as the death or removal of Witnesses c. Iudgment was given for the Plaintiff Dobson versus Thornistone THE Plaintiff was a Husbandman Words spoken of a Farmer actionable who brought an Action against the Defendant for these words He owes more mony than he is worth he is run away and is broke He had a Verdict and it was moved now in Arrest of Iudgment that the Words being spoken of a Farmer are not actionable To say that a Gentleman is a Cozener Hill 28 Eliz. B.R. Godb. 40. a Bankrupt and hath got an Occupation to deceive Men though he used to Buy and Sell yet being no Merchant 't was the better Opinion of the Court that the Words were not actionable So to say of a Farmer Stiles 420. that he is a Whoreson Bankrupt Rogue and it not appearing that he got his living by Buying and Selling or that the Words were spoken of him relating to his Occupation 't is not actionable For it must not only appear that the Plaintiff hath a Trade Sid. 299. Hutt 50. but that he gets his Living by it otherwise the Words spoken of him will not bear an Action But the Court held the Words to be actionable the like Iudgment was given in the Case of a Carpenter Mich. 3 Jac. for Words Viz. He is broke and run away Anonymus NOta Misentry of a Writ of Enquiry amendable without paying Costs Iudgment was given upon a Demurrer and a Writ of Enquiry was awarded and in the Entry thereof upon the Roll the Words per Sacramenum duodecim proborum legalium hominum were left out and now the Question was Whether it shall be amended It was said that a Capiatur for a Misericordia shall be amended upon the new Statute of Jeofails after a Verdict but whether upon a Demurrer it was doubted In a Quo Warranto Iudgment was entred by disclaimer Cro. Car. 184. by the consent of all Parties and the Words virtute praetextu literarum patentium geren dat 17 Jacobi were wrote in the Margin of the
is likewise insufficient for it sets forth the Deed of Settlement c. coram praetextu the Defendant juxta fiduciam in eo positam was possessed of the Office ad eorum voluntatem Now an Office is a thing which lies in Grant 1 Leon. 219. and cannot be transferred from one to another without Deed and here is no Deed pleaded and as no Estate at will can be granted of an Office without Deed so likewise there cannot be a deputation of such Offce without it If then there can be no Tenant at Will of an Office but by Deed and no such Deed is pleaded then Mr. Lenthal had no power to make a Deputation to Cooling but neither Tenant at will nor Tenant for Life can make a Deputy if in the very Grant made to them there is not an express Clause for the execution of the Office per se vel sufficientem Deputatum suum The substance of all which is viz. First here is no Tenant at will But admitting him to be so he hath no authority to make a Deputy and if he should appoint a Deputy he executes the Office without Authority and may suffer Escapes Lastly by pleading of this Deed he hath alledged that the Estate was in the Trustees and that they permitted him to enjoy the Office coram praetextu he did execute it and receive the Profits now this is too general and an issue cannot be taken upon such a Plea he should have pleaded positively that it was demised to him at will and that he made a Deputy and then also the authority in rolls is against him where 't is held 2 Rol. Ab … that the Marshal of the Kings-Bench may grant the Office for Life but cannot give power to such grantee to make a Deputy Now if a Tenant for Life cannot make a Deputy certainly a Tenant at will hath no power so to do But suppose a Deputy might be made his neglect in the execution of the Office shall make a Forfeiture of the Estate of the Grantee for Life It cannot be reasonably objected in this Case Rol. Abr. 155. that 't is any hardship for Mr. Lenthal to lose this Office for any defect in Pleading for admitting the Plea to be good yet there is a cause of Forfeiture because the Marshal of the King's Bench being a ministerial Officer is required by Law to be a person of such Ability as to answer all Escapes that so Men may have the benefit of their Suits for otherwise he having nothing to answer they may lose their Debts Now here by a secret Grant Mr. Lenthal hath conveyed the Estate out of himself and yet still continues Officer in possession by which means the People are deprived of the Remedy which the Law provides for them and this is a sufficient cause of Forfeiture Then as to the Trustees they have not said any thing of the Escapes 't is true Mr. Lenthal hath traversed those which are alledged to be voluntary but that signifies nothing to them because they cannot take any benefit by the Plea of another for every one must stand and fall by his own Plea If therefore their non-attendance be a Forfeiture the entruders shall not help them because they come in without any colour of Right But the Council on the other side argued this last Point first E contra which was thus Viz. A Man seised of the Inheritance of the Office of Marshal of this Court conveys it in Trust the cestui que trust enjoys it and receives the Profits the Question now is whether the non-attendance of the Trustees being never required by the Court be a Forfeiture of this Office And as incident to this Question it was debated whether Mr. Lenthal was Tenant at will T is no Forfeiture for they are not bound to attend It cannot be denied but that this Office doth concern the Administration of Iustice but 't is to be considered what Estate Mr. Lenthal hath in it He had once an Estate in Fee but if it had been for Life or in Tail it may be setled as this is done but not for years because it may then come to an Administrator If Mr. Lenthal be the cestui que use Co. Lit. 404. Godb. 64. then he hath an Estate of which the Law takes notice for he may be a Iuror at the Common Law 'T is plain that he hath an Estate created by operatian of the Law for he is Tenant at Will and for that reason the attendance of the Trustees is not necessary but if the Estate had been directly granted to them then the Office had been forfeited for Non-attendance It cannot be denied but that this Office may be granted at Will for so is Sir George Reynell's Case 9 Co. 98. now if it may be granted at Will by the Possessor it may likewise be so granted by him who hath an Estate created by the Law for fortior est dispositio legis quam hominis and in this Case no Inconveniency would happen for if the Will be determined then the Grantor is the Officer When Mr. Lenthal had assigned this Office to the Trustees and they by a subsequent Deed had declared it to be in trust for him and that he should take the Profits during life he hath thereby a legal Estate at Will for a Cestuy que Trust by Deed is a Tenant at Will It hath been objected that a Tenancy at Will of an Office is void and to prove this a Case in Jones's Rep. was cited Jones 128. but the reason of that Case is guided by the particular nature of that Office which could not be aliened without the consent of the King If this Office is not alienable in its nature then Mr. Lenthal hath still the Fee-simple but that will not be admitted But this is not only a bare Estate at Will but a Trust for Life and such a Trust which hath a legal construction Godbolt 6◠for if a Feoffment be made in Trust that he should convey the Estate to another which the Feoffee afterwards refused to do the Cestuy que Trust may bring an Action against him so if he should be returned on a Iury 't is no Exception to say that he hath not liberum tenementum and therefore he is not an incompetent person to have the charge of Prisons if he may be impannelled on a Iury to try men for their Lives 1. Then as to the first Question upon the last point whether Mr. Lenthal had done any thing to determine his Tenancy at Will The Grant of this Office by him to Cooling will not amount to a determination of his Will because 't is a void Grant 'T is true this is denied by my Lord Coke in his Comment upon Littleton Sect. 71. where he saith If Tenant at Will grant over his Estate and the Grantee entreth he is a Disseisor for though the Grant be void yet it amounts to a determination of his Will What
and not of Murder prout patet per Recordum that he was Clericus paratus fuit legere ut Clericus if the Court would have admitted him and that he is the same person c. To this Plea the Appellant demurred The truth of this Case was that after the Conviction and before the Sentence an Appeal was brought so that the Defendant had not an opportunity to pray his Book It was argued by Mr. Pollexfen for the Appellant and by Sir George Treby for the Appellee If the Statute of 3 H. 3 H. 7. c. 1. 7. was not in the way this Plea might be a good Barr to the Appeal because before the making of that Law Auterfoits convict c. had been a good Plea but now that Statute deprives the Defendant of that benefit for 't is enacted That if any man be acquitted of Murder at the King's Suit or the Principal attainted the Wife or next Heir to him so slain may take and have their Appeal of the Murder within a year and a day after the said Murder done against the said persons so acquitted or attainted if they be alive and the Benefit of * Nota At this time Clergy was allowed for Murder but now taken away by the Statute of 23 H. 8. c. 1. Hales Pl. Cor. 232. Clergy before not had Now though the Party be neither acquitted or attainted but is only convicted of Manslaughter yet the word Attaint in this Statute signifies the same with Convict and this appears by the penning of the Act in that Clause which mentions the benefit of Clergy viz. That if any man be attainted of Murder the Heir shall have an Appeal if the benefit of Clergy be not had Now an Attainder supposeth a Conviction for one is the consequence of the other and if it should not signifie the same thing in this place then that Clause would be in vain because if it should be taken for the Iudgment given upon the Conviction then 't is too late for the Party to have any benefit of his Clergy Thus it was held in the second Resolution of Wrot and Wigg's Case that the word Attaint in this very Act shall not be intended only of a person who hath Iudgment of Life 4 Co. 46. a. but also of one Convict by Confession or Verdict 'T is true 2 Anders 68. 't is said in that case and so likewise in Holecroft's Case that Auterfoits convict of Manslaughter upon an Indictment of Murder is a good Bar to an Appeal at the Common Law as well as if the Clergy had been allowed the reason may be because in both those Cases the Iudgments were by Confession so that the Court ought to have granted the Clergy but this is a Conviction by Verdict which alters the Case E contra Auterfoits convict is a good Plea at the Common Law in all other Cases Treason only excepted at this day it appears by the Statute of H. 7. that the year and day which was the time allowed for the Appeal and in which time the Kings Indictment could not be tried was an usage but not a Law therefore that Act provides that the King shall proceed upon the Indictment within the year and a day and not stay for the Appeal of the Party If the Party be attainted or acquitted the Wife or next Heir shall have an Appeal but not if he be convicted But now admitting that the word Attaint hath the same signification with the word Convict yet this is a good Plea both within the Words and the Equity of the Statute This appears upon the Construction of that Law which must be expounded according to the vulgar Sense and signification of the words and therefore where the Statute saith That an Appeal lies where the benefit of Clergy is not had is that it is not had de Jure but the Clergy in this Case was de Jure and the Defendant was ready to read if he had been admitted thereunto by the Court. Thus is the Statute of Malbridge about the taking away of Wards viz. Si parentes conqueruntur that is if they had cause to complain 2. This Statute hath been expounded according to Equity for though it gives an Appeal to the Wife or next Heir of him slain yet if a Woman be killed her next of Kin shall bring an Appeal Therefore by the same Equity these words viz. The benefit of Clergy not had shall be construed had by the Grant of the Court Co. Ent. 355. for if a Man be indicted without the addition of Clerk he cannot demand his Clergy unless the Court ask him but if he be indicted with that addition then he may demand it because 't is supposed by the Court that he can read That this Appeal was not well brought these Exceptions were taken grounded upon the Statute of Gloucester by which seven things are required in an Appeal of Murder 6 E. 1. ca. 9. That the Appellor declare the Fact the Year the Day the Hour the Year of the King the Town where the Fact was done and with what Weapon the Party was slain Now in this Case there is a defect in two of the things required by that Statute 1. That of the Hour which is laid too general for 't is circa horam octavam which is not certain enough 2. They have laid no Vill for 't is that the Defendant did assault the Husband of the Appellant in Parochia Sancti Martini in Campis now though that word Parochia has crept into Fines and Recoveries and likewise into Indictments it must not be allowed in Appeals There may be several Vills in one Parish and though this is ruled good in Indictments it ought not to be so here because of the difference between an Indictment and an Appeal Stamf. 80. b. Doct. Stud. 48. for in Indictments you need not mention the Hour but it must be done in Appeals A Parish is an Ecclesiastical Division and though such may be a Vill 't is not necessary Ex vi termini that it should be so But afterwards in Trinity-Term 4 Jac. the Chief Iustice delivered the Opinion of all the Iudges except Iustice Street who were assembled for that purpose at Serjeants-Inn that this was no good Plea and that the Court ought not to ask the Prisoner what he had to say and so to let him into the benefit of his Clergy Tamen quaere for 't is otherwise resolved The Company of Horners versus Barlow DEBT upon a By-Law wherein the Company set forth A By-Law restrained to London and not to extend farther that they were incorporated by Letters Patents of King Charles I. and were thereby empowred to make By-Laws for the better Government of their Corporation and that the Master Warden and Assistants of the Company made a Law viz. That two Men appointed by them should buy rough Horns for the Company and bring them to the Hall there to be distributed every Month by
contra As to the first Exception it was said that the Wardmote Court was held before the Mayor for the Iuries there are not to try any Matter but only to make Presentments which are carried before the Mayor Exceptions were taken against the Indictment which was for not serving at a Wardmote Inquest for such a year 1. Because 't is a thing not known at the Common Law that a Man should be of a Iury for a whole year The Indictment was that the Defendant was an Inhabitant of such a place and elected a Iury Man 2. But doth not say that he ought to hold the Office to which he was elected It was quashed Calthrop versus Axtel THE Husband being seized in Fee had Issue two Daughters Ejectment upon the Statute of Ph. Mar. for marrying under 16 without the Parents Consent Antea Hicks versus Gore and dyed his Wife survived who was then by Law Guardian in Socage to her Children one of which under the Age of sixteen years married one Mr. B. without her Mother's Consent by reason whereof her Estate became forfeited during life to her Sister by vertue of the Statute of 4 5 Ph. Mar. who now brought an Ejectment which was tried at the Bar. The Mother was produced as a Witness at this Trial against the married Daughter but it was objected against her that she was Tenant in Possession of the Lands in question under her other Daughter that some part of the Estate was in Houses and that she had made Leases thereof to several Tenants for 99 years c. and covenanted with the Lessees that she together with the Infants when of Age shall and will joyn to do any â—â—â—rther Act for the quiet enjoyment thereof therefore this is like the Case of a Bailiff or Steward who if they put themselves under such Covenants shall never be admitted as Witnesses in any Cause where the Title of such Lands shall come in question The Proofs that the Mother did not consent were That she made Affidavit of the whole matter and got the Lord Chief Iustice's Warrant to search Mr. B's Houss for her Daughter and upon application made to my Lord Chancellor she obtained a Writ of Ne exeat Regnum and got a Homine replegiando and gave notice of the Fact in the Gazett and exhibited an Information in the Crown Office against Mr. B. and his Father and his Maid Attorny General contra E contra The Preamble of this Act will be a Guide in this Case which is For that Maids of great Substance in Goods c. or having Lands in Fee have by Rewards and Gifts been allowed to contract Matrimony with unthrifty persons and thereupon have been conveied from their Parents by sleight or force c. Then it enacts That no person shall convey away a Maid under 16 years without her Parents Consent which Assent is not necessary within the meaning of this Act unless the Child be taken away either by sleight or force which must be proved The Mother was no good Guardian to these Children for she did set up one G. to be a Curator for her Daughter in the Spiritual Court to call her self to an accompt for the personal Estate of which her Husband died possessed she having given Security to exhibit a true Inventory This Accompt was stated in the Prerogative Court between her and the Curator to 300 l. only for which she gave Bond when in truth the Personal Estate was worth more and afterwards obtained a Decree in Chancery thinking thereby to bind the interest of the Infants In this Case it was said that there must be a continued refusal of the Mother for if she once agree though afterwards she disassent yet 't is an assent within the Statute There must likewise be proof of the stealing away Obrian versus Ram. Mich. 3 Jac. 2. Rot. 192. Angl ' ss Entry of a Writ of Error out of Ireland DOminus Rex mandavit praedilecto fideli Conciliario suo Willielmo Davis Militi Capitali Justic suo ad placita in Curia ipsius Domini Regis coram ipso Rege in Regno suo Hiberniae tenend ' assign ' Breve suum Clausum in haec verba ss Jacobus secundus Dei gratia Angliae Scotiae Franciae Hiberniae Rex Fidei defensor c. pradilecto fideli Conciliario nostro Willielmo Davis Militi Capital ' Justic ' nostro ad placita in Curia nostra coram nobis in Regno nostro Hiberniae tenend ' assign ' salutem Quia in Recordo Processu acetiam in redditione Judicii loquelae quae fuit in Curia nostra coram nobis in praed Regno nostro Hiberniae per Billam inter Abel Ram Mil. nuper dict Abel Ram de Civitate Dublin Alderman ' Elizabetham Grey de Civitate Dublin Viduam de quodam debito quod idem Abel a praefat ' Elizabetha exigebat Quae quidem Elizabetha postea cepit Donnough Obrian Armigerum in virum suum obiit Necnon in adjudications executions ejusdem Judicij super Breve nrÌ„um de Scire FacÌ„ extra eandem Curiam nostram coram nobis emanen ' versus ipsum praed In adjudicatione Executionis super Scire Fac. Donnogh in loquela praed ut dicitur Error intervenit manifestus ad grave dampnum ipsius Donnogh sicut ex querela sua accepimus Nos Error si quis fuerit modo debito corrigi partibus praed plenam celerem justiciam fieri volentes in hac parte vobis mandamus qd ' si judicium in loquela praed ' reddit ' ac adjudicationem executionis judicii praed super breve nostrum de Scire facÌ„ praed adjudicatÌ„ tunc record ' process tam loquel ' quam adjudicationis executionis judicii praed ' cum omnibus ea tangen ' nobis sub sigillo vestro distincte aperte mittatis hoc Breve ita qd ' ea habeamus in Crastino Ascentionis Domini ubicunque tunc fuerimus in Angl ' Ut inspect ' record ' process praed ' ulterius inde pro Errore illo corrigendo Fieri fac ' quod de jure fuerit faciend ' Et Scire fac praefat ' Abel qd ' tunc sit ibi ad procedend ' in loquela praed ' faciend ' ulterius recipiend ' quod dicta Curia consideraverit in praemissis Teste meipso apud Westm xxii Januarii Anno Regni nostri secundo Price Record ' Process The Return loquelae unde infra fir mentio cum omnibus ea tangen ' coram Dno Rege ubicunque c. ad diem locum infracontent ' mitto in quodam Record ' huic Brevi annex ' Scire feci Abel Ram qd ' tunc sit ibi ad procedend ' in loquela praed prout interius mihi praecipitur Respons ' W. Davis Placita coram Domino Rege apud the Kings Courts de Termino Sanctae Trinitatis Anno Regni Domini
c. yet one Commoner may bring an Action against his Fellow besides in this Case they are not Tenants in Common for every Man is seized severally of his Freehold Adjornatur Ayres versus Huntington AScire Facias was brought upon a Recognizance of 1000 l. Amendment of the word Recuperatio for Recognitio after a Demurrer to shew cause quare the Plaintiff should not have Execution de praedictis mille libris recognitis juxta formam Recuperationis where it should have been Recognitionis praed And upon a Demurrer it was held that the words juxta formam Recuperationis were Surplusage The Record was amended and a Rule that the Defendant should plead over Mather and others versus Mills THE Defendant entred into a Bond to acquir Non damnificatus generally where 't is a good Plea discharge and save harmless a Parish from a Bastard Child Debt was brought upon this Bond and upon Non damnificatus generally pleaded the Plaintiff demurred and Tremain held the Demurrer to be good for if the Condition had been only to save harmless c. then the Plea had been good but 't is likewise to acquit and discharge c. and in such Case Non damnificatus generally is no good Plea 1 Leon. 71. because he should have shewed how he did acquit and discharge the Parish and not answer the Damnification only E contra E contra 2 Co. 3. 2 Cro. 363 364 2 Sand. 83 84. It was argued that if the Defendnat had pleaded that he kept harmless and discharged the Parish such Plea had not been good unless he had shewed how c. because 't is in the affirmative but here 't is in the negative viz. that the Parish was not dampnified and they should have shewed a Breach for though in strictness this Plea doth not answer the Condition of the Bond yet it doth not appear upon the whole Record that the Plaintiff was dampnified and if so then he hath no cause of Action Iudgment for the Defendant DE Term. Sanctae Trin. Anno 1 Gulielmi Mariae Regis Reginae in Banco Regis 1689. Memorandum That on the 4th day of November last past the Prince of Orange landed here with an Army and by reason of the Abdication of the Government by King James and the Posture of Affairs there was no Hillary-Term kept Coram Johanne Holt Mil ' Capital ' Justic Gulielmo Dolben Mil ' Justiciar Gulielmo Gregory Mil ' Justiciar Egidio Eyre Mil ' Justiciar Kellow versus Rowden Trin. 1 Willielmi Mariae Rotulo 796. IN Debt by Walter Kellow Where the Reversion in Fee is expectant upon an Estate Tail and that being spent it descends upon a collateral Heir he must be sued as Heir to him who was last actually seized of the Fee without naming the intermediate Remainders Executor of Edward Kellow against Richard Rowden The Case was this viz. John Rowden had Issue two Sons John and Richard John the Father being seized in Fee of Lands c. made a Settlement to the use of himself for Life the Remainder to John his eldest Son in Tail Male the Remainder to his own right Heirs The Father died the Reversion descended to John the Son who also died leaving Issue John his Son who died without Issue so that the Estate Tail was spent Richard the second Son of John the elder entred and an Action of Debt was brought against him as Son and Heir of John the Father upon a Bond of 120 l. entred into by his Father and this Action was brought against him without naming the intermediate Heirs viz. his Brother and Nephew The Defendant pleaded Quod ipse de debito praed ut filius haeres praed Johannis Rowden Patris sui virtute scripti obligatorii praed onerari non debet quia protestando quod scriptum obligatorium praed non est factum praed Johannis Rowden pro placito idem Richardus dicit quod ipse non habet aliquas terras seu tenementa per discensum haereditarium de praed Johanne Rowden patre suo in feodo simplici nec habuit die exhibitionis billae praed Walteri praed nec unquam postea hoc parat est ' verificare unde pet judicium si ipse ut filius haeres praed Johannis Rowden patris sui virtute scripti praed onerari debeat c. The Plaintiff replied that the Defendant die Exhibitionis billae praed habuit diversas terras tenementa per discensum haereditarium a praed Johanne Rowden patre suo in feodo simplici c. Vpon this pleading they were at Issue at the Assises in Wiltshire and the Iury found a special Verdict viz. that John Rowden the Father of Richard now the Defendant was seized in Fee of a Messuage and 20 Acres of Land in Bramshaw in the said County and being so seised had Issue John Rowden his eldest Son and the Defendant Richard that on the 22th of Januarii 18 Car. I. John the elder did settle the Premisses upon himself for Life Remainder ut supra c. That after the death of the Father John his eldest Son entred and was possessed in Fee-Tail and was likewise entituled to the Reversion in Fee and died in the 14th year of King Charles the II. that the Lands did descend to another John his only Son who died 35th Car. II. without Issue whereupon the Lands descended to the Defendant as Heir of the last mentionted John who entred before this Action brought and was seised in Fee c. But whether upon the whole matter the Defendant hath any Lands by by descent from John Rowden in Fee-simple the Iury do not know c. The Council on both sides did agree that this Land was chargable with the Debt but the Question was whether the Issue was found for the Defendant in regard the Plaintiff did not name the intermediate Heirs It was argued that the Defendant ought to be sued as immediate Heir to his Father and not to his Nephew for whoever claims by descent must claim from him who was last actually seised of the Freehold and Inheritance this is the express Doctrine of my Lord Coke in his first Institutes and if so Co. Lit. 11. the Defendant must be charged as he claims Seisin is a material thing in our Law for if I am to make a Title in a real Action I must lay an actual seisin in every Man 8 E. 3.13 Bro. Assise 6. F.N. B. 212. F. 't is so in Formedons in Descender and Remainder in both which you are to run through the whole Pedegree But none can be Filius Haeres but to him who was last actually seised of the Fee-simple and therefore the Brother being Tenant in Tail and his Son the Issue in Tail in this Case they were never seised of the Fee 1 Inst 14. b. for that was expectant upon the Estate Tail which being spent then John the Father was last seised thereof and
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