Man from having any Office whatsoever who shall affirm the King to be a Papist 13 Car. 2. cap. 1. that is a person who endeavours to introduce Popery 2. But if the word Papist is not actionable of it self yet as coupled with his Offices 't is otherwise and the Plaintiff may well maintain this Action And of that Opinion was all the Court So the Iudgment was affirmed Malloon versus Fitzgerald ERror of a Iudgment in Ireland Where an Estate Tail shall not be determined for want of notice of a Proviso to determine it for Lands in the County of Waterford the Case upon the special Verdict was this John Fitzgerald was seized in Fee of the Lands in question who had Issue Katherine his only Daughter He by Lease and Release made a Settlement of those Lands upon the Earl of Ossory and other Trustees therein named and their Heirs to the use of himself for Life and after his Decease to the use of his Daughter Katherine in Tail Provided that she Married with the consent of the said Earl and the Trustees or the major part of them or their Heirs some worthy person of the Family and Name of Fitzgerald or who should take upon him that Name immediately after the Marriage but if not then the said Earl should appoint and raise a Portion out of the said Lands for the Maintenance of the said Katherine with a Remainder to Laetitia in Tail John Fitzgerald died his Daughter being then but two years old She afterwards at the Age of fourteen had Notice of this Settlement but not by the Direction of the Trustees That on the 20th of March in the 16th year of her Age she Married with the Plaintiff Edward Villiers Esq without the consent of the Trustees or the major part of them and that her Husband Mr. Villiers did not take upon him the Name of Fitzgerald after the said Marriage That Laetitia the Aunt was married to Franklyn who likewise did not take upon him the Name of Fitzgerald 1. The Questions were Whether the Estate limited to Katherine be forfeited without Notice given to her of the Settlement by the Trustees themselves 2. Whether her Estate be not determined by her marrying Mr. Villiers without their consent And it was argued That the Estate Tail was determined And first as to the point of Notice 't is not necessary to be given to the Daughter because the Father had not made it in the Settlement He might dispose of his Estate at his pleasure and having made particular Limitations of it there is no room now for the Law to interpose to supply the defect of Notice in the Deed. And to this purpose the Mayor of London 's Case was cited which was That George Monox Devised certain Houses to his Executors in Trust and their Heirs Cro Car. 576. Idem Jones 452. upon condition to pay mony to several Charitable uses which if not performed then he devised them over to his Heir in Tail upon the same Conditions and if not performed by him then to the * The Devise to him was void because it was a possibility upon a possibility Mayor and Commonalty of London The Trusts were not performed by the first Devisees A Stranger entered and levied a Fine with Proclamations and five Years passed Then the Mayor of London brought his Action supposing he had a right of Entry for the non performance of the Trusts but was barred by the Fine although it was argued for him that he had not notice of the Devise or breach of the Trust till after the Fine levied which shews that Notice was not necessary for if it had been so when his Title accrewed he could not have been barred by the Fine As Katherine the Daughter takes notice what Estate she hath in the Land so as to pursue a proper Remedy to recover it so she ought to take notice of the Limitations in the Settlement and hath the same means to acquaint her self with the one as with the other and the same likewise as her Aunt had to know the Remainder Suppose a Promise is made to indempnifie another from all Bonds which he should enter into for a third person 2 Cro. 432. Hob. 51. Jones 207. Pop. 164. and then an Action is brought against him wherein the Plaintiff declared that he was bound accordingly and not saved harmless but doth not shew that he gave notice of his being bound yet the Plaintiff shall recover As to the Case of a Copyholder having three Sons who surrendred to the use of his Will 2 Cro. 56. and then devised to his middle Son in Fée upon condition to pay Legacies to his Sisters at full age which were not paid Now tho' it was adjudged that his Estate was not determined upon the non-performance of this Condition without an actual demand and denial and that he was not bound to take notice of the full age of his Sisters yet this is not an Authority which can any wise prevail in this Case because 't is a * If the Devise had been to the eldest Son then it had been a Limitation annexed to his Estate and not a Condition because if it had been a Condition it would have descended upon the Heir who could not be sued for the breach 1 Ventr 199. Rep. Canc. 140. Sid. Poph. 104. Condition to pay Legacies which is a thing in its nature not to be paid without a demand which implies notice In all Cases where Conditions are annexed to Estates to pay Mony there notice is necessary but where Estates are limited upon the performance of collateral acts 't is not necessary And this has been held the constant difference So is Fry and Porter 's Case which was this The Earl of Newport had two Daughters and he devised Newport House to the Daughter of his eldest Daughter in Tail which she had by the Earl of Banbury Provided and upon condition that she marry with the consent of her Mother and two other Trustees or the major part of them if not or if she should dye without Issue then he devised the said House to George Porter in Fee who was the Son of his youngest Daughter and who had married one Thomas Porter without her Fathers consent The Lady Ann Knowles the first Devisee married Fry without the consent of her Grandmother or Trustees and it was adjudg'd against her upon point of Notice that it was not necessary because her Grandfather had not appointed any person to give notice he might have imposed any Terms or Conditions upon his own Estate and all Parties concerned had the same means to inform themselves of such Conditions The third Resolution in Frances Case 8 Co. comes nearest to this now in question it was in Replevin the Defendant avowed the taking Damage Fesant The Plaintiff pleaded in Barr to the Avowry that R. Frances was seized in Fee of the place where c. and devised it to John who was his
shall not alien or sell the Lands given to her from the Heirs Male of her Body lawfully to be begotten but to remain upon default of such Issue to W. and the Heirs Males of his Body to be begotten according to the true intent and meaning of this my Will Dorothy Hopkins had Issue Richard who had Issue Henry who had Issue a Daughter now the Defendant The Question was Whether the Son of Dorothy did take an Estate Tail by this Will to him and to the Heirs of his Body in general or an Estate in Tail Male This Case was argued in Michaelmas Term 36 Car. II. And in the same Term a year afterwards by Council on both sides Those who argued for the Plaintiff held that the Son had an Estate in Tail Male and this seems plain by the intention of the Testator that if Dorothy had Issue Daughters they should have no benefit for no provision is made for any such by the Will and therefore the Daughter of her Son can have no Estate who is more remote to the Testator This is like the Case of Conveyances Turnam vers Cooper 2 Cro. 476. Poph. 138. id 25 Ass pl. 14. wherein the Habendum explains the generality of the precedent words as if Lands be given to Husband and Wife and to their Heirs habendum to them and the Heirs of their Bodies Remainder to them and the Survivor to hold of the chief Lord with Waranty to them and their Heirs this is an Estate Tail with a Feé expectant So it is here tho' the first words in the Will extend to Heirs which is general yet in the Memorandum 't is particular to Heirs Males and the words Heirs and Issues are of the same signification in a Will The Memorandum is a confirmation of the Will Ex parte Def. and the construction which hath been made of it is not only inconsistent with the Rules of Law but contrary to the intent of the Testator and against the express words of his Will Cases upon Wills are different from those which arise upon Deeds because in Conveyances subsequent words may be explanatory of the former but in Wills the first words of the Testator do usually guide those which follow As if Land be devised for Life Dyer 171 a. 1 And. 8. id Golds 16. Moor 593. Remainder to F. and the Heirs Males of his Body and if it happen that he dye without Heirs not saying Males the Remainder over in Tail this was held not to be a general Tail but an Estate in Tail Male therefore the Daughter of F. could not inherit Now to construe this to be an Estate Tail Male doth not only alter the Estate of the Sons of Dorothy but of the Issue of W. and nothing is mentioned in this Memorandum of the Limitation over to Jones so that the whole Will is altered by it But this Memorandum cannot enlarge the Estate of Dorothy because 't is inconsistent with the intention of the Testator who gave her only an Estate for Life by the Will but if she should have an Estate Tail she might by Fine and Recovery bar it and so alien it contrary to his express words Besides there is no Estate limited to Dorothy by this Memorandum and she having an express Estate for Life devised to her by the Will it shall never be enlarged by such doubtful words which follow As where a Man had 100 Acres of Land 2 Leon. 226. Moor 593. called by a particular Name and usually occupied with a House which House he lett to S. with 40 Acres parcel of that Land and then devised the House and all the Lands called by that particular Name c. to his Wife Adjudged she should only have the House and the 40 Acres and that the Devise shall not be extended by implication to the other sixty Acres So that to make the design of this Will and Memorandum to be consistent the latter words must be construed only to illustrate the meaning of the Testator in the former Paragraph of the Will and must be taken as a farther declaration of his intention Viz. that the Heirs Males mentioned in the Memorandum is only a description of the Persons named in the Will The Law doth usually regard the intention of the Testator and will not imply any contradictions in his Bequests The Court was of Opinion that it was a plain Case Judicium for in the Limitation 't is clear that 't is a general Tail and it doth not follow that the Testator did not design any thing for his Grandaughters because no provision was made for Daughters For where an Estate is entailed upon the Heirs of a Man's Body if he hath a Son and a Daughter and the Son hath Issue a Daughter the Estate will go to her and not to the Aunt Now this Memorandum doth not come to make any alteration in the Limitation because it directs that the Estate shall go according to the true intent and meaning of the Will and is rather like a Proviso than an Habendum in a Deed. And therefore Iudgment was given accordingly for the Defendant DE Term. Sancti Mich. Anno 1 Jac. II. in Banco Regis 1685. Hicks versus Gore ON Tuesday the 17th day of November there was a Trial at the Barr by a Somerset-Shire Iury in Ejectment The Case was thus The Plaintiff claimed the Lands by virtue of the Statute of 4 5 Ph. Mar. cap. 8. by which 't is enacted That it shall not be lawful for any person to take away any Maid or Woman Child unmarried and within the Age of sixteen years from the Parents or Guardian in Soccage and that if any Woman Child or Maiden being above the Age of twelve years and under the Age of sixteen do at any time assent or agree to such person that shall make any Contract of Matrimony contrary to the Form of the Act that then the next of Kin of such Woman Child or Maid to whom the Inheritance should descend return or come after the decease of the same Woman Child or Maid shall from the time of such Assent and Agreement have hold and enjoy all such Lands Tenements and Hereditaments as the said Woman Child or Maid had in Possession Reversion or Remainder at the time of such Assent and Agreement during the Life of such person that shall so contract Matrimony and after the decease of such person so contracting Matrimony that then the said Land c. shall descend revert remain and come to such person or persons as they should have done in case this Act had never been made other than him only that so shall contract Matrimony Benjamin Tibboth being seised in Fee of the Lands in question to the value of 700 l. per annum had Issue a Son and four Daughters the Son had Issue Ruth his only Daughter who was married to the Defendant Gore her Father died in the time of her Grandfather and her Mother
Daughters for the Testator having two Sons and four Daughters it cannot be collected by these words how they shall take and by consequence it cannot be an Estate Tail by implication Now suppose one of the Daughters should dye without Issue 't is uncertain who shall have her part and therefore there being no appointment in what order this Estate shall go it cannot be an Estate Tail and to maintain this Opinion this Case was cited One Collier was seised in Fee of three Houses 2 Cro. 655. Gilbert versus Witty and had Issue three Sons John Robert and Richard he devised to each of them a House in Fee Proviso if all my Children dye without Issue of their Bodies then the Houses to be to his Wife The two eldest Sons died without Issue the younger had Issue a Daughter who married the Lessor of the Plaintiff The Question was Whether by the death of the eldest Son without Issue there was a cross Remainder to Richard and the Heirs of his Body or whether the Wife shall take immediately or expect till after the Death of all the Sons without Issue And it was adjudged that the Wife shall take immediately and that there were no cross Remainders nor any Estate by implication because it was a devise to them severally by express limitation So that if no Estate tail ariseth to the Daughters in this Case by implication Cro. Eliz. Taylor versus Sawyer then 't is no more than a devise to his Issue which extends to them all and gives only an Estate for Life For the Defendant it was argued Ex parte Def. that the Sons and Daughters have no Estate Tail by implication It was agreed that Nicholas had only an Estate for Life and that the word Estate in this case means the Houses and not the Interest in them 'T is true there is no express Limitation of any Estate to them but there is an express determination of it Now if this be not an Estate Tail by implication then the words dying without Issue are void A devise to his Son More 127. and if he dye not having a Son then 't is devised over This is an Estate tail in Remainder It cannot be a doubt who shall take first for the Daughters shall take it Dyer 333. and after them as 't is most natural the eldest Son for where there is the same proximity of Blood the Estate shall go to the eldest As for instance Hob. 33. one Chapman being seised in Fee of two Houses and having three Brothers devised the House which A. dwelt in to his said three Brothers and the House in which his Brother Thomas Chapman did dwell he devised to the said Thomas paying so much c. or else to remain to the Family of the Testator provided that the Houses be not sold but go to the next of the Males and the blood of the Males Thomas died without Issue the eldest of the two surviving Brothers had Issue a Daughter and died the Question was whether that Daughter or the youngest Brother of the Testator should have the House It was adjudged that the Daughter should have it in tail For the Proviso that the Houses be not sold c. made it a tail and the words viz. to remain to the Family must be intended to the eldest If this be not an Estate tail then the Devise over to Anne Warner is void As to the Case of Gilbert and Witty that moves upon another reason for there every one took by a distinct and separate Limitation Curia In that Case all the Estate was limited distinctly to the three Sons but in this 't is otherwise for the Testator had two Sons and no Estate was limited to one of them before then he saith If all my Sons and Daughters dye without Issue then c. And thus the Cases differ which creates the difficulty But no reason can be given why this Court should not construe Wills according to the Rules of Common Law where an Estate by implication is so incertain for when Men are sick and yet have a disposing power left they usually write Nonsense and the Iudges must rack their Brains to find out what is intended This cannot be an Estate tail in the Daughters and therefore the Heir must come in for his fourth part Iudgment for the Plaintiff Dixon versus Robinson THIS was a special Issue directed out of Chancery Wayhil Fair. and tried this day at the Bar by a Middlesex Iury. The Question was Whether Ballivus probi homines Burgenses Burgi de Andover in Hampshire had power to keep a Fair at Wayehil in any one place where they please the Bill being Exhibited to confine the Fair to a particular place which Fair was granted to them by Charter from Queen Elizabeth They who would have it confin'd to a certain place gave in Evidence that the Hospitaller of Ewelme in Oxfordshire was seised in Fee of the Manor of Rambridge within which Manor the place was where the Fair was always kept and that the Parson of Andover had Glebe there That this place was called Wayehil and that the profits did arise by Piccage and Stallage to the yearly value of 200 l. That it was an ancient Fair held there by Prescription before the Town of Andover had a Charter That upon the late Surrender of Charters the Town of Andover did likewise surrender and took a new Charter in which liberty was given to them to keep this Fair in what place they would That both the Hospitaller and Parson petitioned the King in Council and obtained an Order to Try where the Fair ought to be kept which was tried accordingly at the Exchequer Bar and a Verdict for the Parson Chief Justice If the Fair belongs to Andover they may chuse whether they will keep it at any place and that may create another Question Whether they may not forfeit this Franchise by disuser But certainly if the place be not limited by the King's Grant they may keep it where they please or rather where they can most conveniently and if it be so limited they may keep it in what part of such place they will Dawling versus Venman AN Action on the Case was brought against the Defendant Action for a Scandalous Affidavit in Chancery for making a Scandalous Affidavit in Chancery in which were these words Viz. Mr. Dawling is a Rogue and a Knave and I will make it out before my Lord Chancellor and I will have him in the Pillory Vpon not Guilty pleaded there was a Verdict for the Plaintiff and damages entire It was moved in arrest of Iudgment for that the truth of on Oath shall not be liable to a Trial in an Action on the Case for the Law intendeth every Oath to be true Before the Statute of 3 11 H. Cro. Eliz. 521 2 Cro. 607. Sid. 50. Hutt 11. 7. which gives power to examine Perjury there was not any Punishment at
the Fine and Non-claim the Substance of which was That Robert Basket was seized in Fee of the Lands in Question who by Will devised it to Philip Basket and others for 99 years with power to grant Estates for the payment hf the Debts and Legacies of the Testator the Remainder in Tail to John Basket his Brother but that if he gave Security to pay the said Debts and Legacies or should pay the same within a time limited that then the Trustees should assign the Term to him c. John Basket entred after the death of his Brother with the assent of the said Trustees and received the Profits and paid all the Legacies and all the Debts but 18 l. The Iury find that John had Issue a Daughter only by his first Wife after whose death he married another Woman and levied a Fine and made a Settlement in consideration of that Marriage upon himself for Life and upon his Wife for Life with divers Remainders over that he died without Issue by his second Wife who entred and five years were past without any claim c. And now the Heir at Law in the name of the Trustees brought this Action The Questions were 1. Whether the Term for 99 years thus devised to the Trustees was bound by this Fine and Nonclaim or not 2. Whether it was divested and turned to a Right at the time of the Fine levied For if it was not then the Fine could not operate upon it It was agreed that as a Disseisin is to a Freehold so is a divesting to a Term and that a Fine and Non-claim is no Barr but where the Party at the time of the levying thereof had a Will to enter and when the Estate of which 't is levyed is turned to a Right That in the Case at the Barr the Entry of John Basket was tortious because the legal Estate was still in the Trustees But if he had gained any Right by his Entry 't is only a Tenancy at Will to them for they took notice of the Devise and he entred by their consent and such a Right is not assignable and then a Fine levyed is no Barr. To prove this 9 Co. 106. Margaret Prodger's Case was cited where the the Lord granted a Copyhold to John Elizabeth and Mary for their Lives and afterwards by Deed enrolled sold the Land to John in Fee and levyed a Fine to him and his Heirs c. and five years passed without any Claim John dyed his Son entred and levyed another Fine to Trustees to the use of himself and Margaret his Wife for Life the Remainder to his own right Heirs the Son died and his Wife survived who having a Freehold for Life distrained and the Husband of Elizabeth brought a Replevin It was adjudged that this Fine and Nonclaim did not barr those in Remainder becase the Bargain and Sale to John did not divest their Estate and turn it to a Right for the Lord did what he might do and John accepted what he might lawfully take who being in possession by virtue of a particular Estate for Life could not by this acceptance divest the Estate of her who had the Freehold and the Fine and Nonclaim could not do it for to what purpose should he make any Claim when he was in actual possession of the thing to be demanded And he who is so in possession need not make any Claim either to avoid a Fine or a collateral Warranty Now though at the Common Law there must be Livery and Seisin to create an Estate of Freehold 3 Co. Fermer 's Case yet any thing is sufficient to make an Estate at Will in which neither the Inheritance or the Title of the Land is concerned and therefore a Fine levyed by such a Tenant is no Barr. 'T is true Sid. 458. Freeman versus Barns if a Lease be made for an hundred years in Trust to attend the Inheritance and Cestuy que Trust continues in possession and devises to another for fifty years and levies a Fine and the five years pass without Claim he being still in possession after the first Lease made is thereby become Tenant at Will and by making the second Lease the other is divested and turned to a Right though he was not a Disseisor and so 't is barred by the Fine because the Cestuy que Trust of the term of one hundred years was also Owner of the Inheritance But in the Case at the Barr John shall not be a Disseisor but at the Election of the Trustees of the Term of 99 years to prove which there are many Authorities in the Books As if Tenant at Will make a Lease for years and the Lessee enters Latch 53. 1 Leon. 121. Lit. Sect. 588. 't is not a Disseisin but at the Election of him who hath the Freehold and even in such Case if the Tenant of the Freehold should make a Grant of the Land 't is good though not made upon the Land it self for he shall not be taken to be out of possession but at his own Election 'T is like the common Case of a Mortgagee for years where the Mortgagor continues in possession twenty years afterwards and pays the Interest and in that time hath made Leases and levyed a Fine this shall not barr the Mortgagee for the Mortgagor is but Tenant at Will to him The Trustees need not make any claim in this Case because there was no transmutation of the possession so they could take no notice of the Fine 'T is true John Basket entred by their consent but still as Tenant at Will to them and the Acts done by him after his Entry will not didest this Term for though he made a Bargain and Sale of the Lands yet nothing will pass thereby but what of right ought to pass He likewise demised the Lands to Vndertenants for years but 't is not found that they entred but admitting they did enter yet that could not displace this Term for these Tenants claimed no more than for one or two years and made no pretence to the whole Term. But if by either of these Acts the Term should be divested yet still it must be at the election of those who have the Interest in it Dyer 61 62 173. The Case of * Cro. Car. 302. 1 Rol. Abr. 661. Blunden and Baugh which is grounded upon Littleton's Text Sect. 588. is an Authority to this purpose which was The Father was Tenant in Tail and his Son was Tenant at Will who made a Lease for years then both Father and Son join in a Fine to the use of the Son for Life and to Elizabeth his Wife for Life the Remainder to the Heirs Males of the Body of the Son who died without Issue Male the Lessee being in possession made a Conveyance of the Estate by Bargain and Sale to Charles Lord Effingham who was Son and Heir of the Tenant in Tail who made a Lease to the Plaintiff who was ousted by the
Dorothy Margery survived and is since dead The Question was whether upon this Reservation the Beast of any person being upon the Land may be distreined for an Heriot Mr. Pollexfen argued that it could not because the words in the Reservation ought to be taken very strictly and not to be carryed farther than the plain expression Where words are doubtful they have been always expounded against the Lessor Cro. Eliz. 217. 2 Roll. Abr. 448. Latch 99. as if a Lease be made for years reserving a Rent durante termino to the Lessor his Executors or Assigns the Lessor dies his Heir shall not have the Rent because 't is reserved to the Executors But here is no room for any doubt upon these words for if a Lease for years be made in which there is a Covenant that the Lessee shall pay the Rent without any other words this determines upon the death of the Lessee So where a Lease was made for 99 years if A. B. C. 2 Rol. Abr. 451. Hetley 58. Cro. Car. 314. or any of them should so long live reserving Rent to him and his Executors and also at or upon the death of either his or their best Beast in the name of an Heriot provided that if B. or C. die living A. no Heriot shall be paid after their deaths A. assigns his Term and the Beast of the Assignee was taken for an Heriot but adjudged that it could not for the words his or their shall not be carried farther than to the persons named in the Limitation The Books that affirm that a Man may seize for an Heriot Service cannot be brought as Authorities in this Case because they are all upon Tenures between Lord and Tenant and not upon particular Reservations as this is The old Books say that if a Tenant by Fealty and Heriot-Service Broke tit Heriot 2. made his Executor and died that the Lord might seize the best Beast of his Tenant in the Hands of the Executor and if he could not find any Beast then he might distrain the Executor Plo. Com. 95. and the reason of this seizure was because immediately upon the death of the Tenant a Property was vested in the Lord but it was held always unreasonable to put him to distrain when he might seise And it is now held that for Heriot-Service the Lord may either distrain or seise but then if he makes a seisure Cro. Car. 260. Jones 300. it must be the very Beast of the Tenant but if he distrain he may take any persons Cattle upon the Land So that admitting this to be Law yet it proves nothing to this matter because such Services being by Tenure shall not be extended to those which are created within time of memory upon particular reservations for by those ancient Tenures the Lords had many Priviledges which cannot be upon Reservations Besides the seisures in those Cases were by the Lords who continued so to be at the very time of the seisure but in our Case the Lease is determined by the death of the last Life so the Priviledge is lost and then it must stand upon the particular words in the Deed. Sed adjornatur into the Exchequer Chamber the Iudges being divided in Opinion Vid. 2 Sand. 165. Shipley versus Chappel Pasch 3 Jac. Rot. 404. THE Plaintiff Shipley as Administrator of Hannah his Wife Condition of two parts in the disjunctive and one part becomes impossible to be done yet the other must be performed according to the subsequent matter brought an Action of Debt upon a Bond against Chappel an Attorny for 140 l. The Defendant craved Dyer of the Condition which was Viz. Whereas Hannah Goddard who was Wife to the Plaintiff and Thomas Chappel of Greys-Inn in the County of Middlesex are Coparceners according to the Common-Law of one House with the Appurtenances in Sheffeild in the possession of William White and whereas the said Hannah Goddard hath paid unto Thomas Chappel the Father for the use of his Son the Sum of 72 l. in consideration that the said Thomas Chappel the Son when he attains the Age of 21 years which will be about Midsomer next do by good Conveyance in the Law at the costs and charges of the said Hannah Goddard convey his said moiety of the said House with the Appurtenances unto her and her Heirs Now the Condition of this Obligation is such That if the said Thomas Chappel the Son shall at the Age of 21 years convey his said moiety of the said House or otherwise if the said Thomas Chappel the Father his Heirs Executors or Administrators shall pay or cause to be paid the sum of 72 l. with lawful Interest for the same unto the said Hannah Goddard her Executors Administrators or Assigns that then this Obligation to be void Then he pleaded that his Son Thomas Chappel was Coparcener with Hannah Goddard as Co-heires of Elizabeth Goddard that Thomas came of Age and that before that time Hannah died without Issue The Plaintiff replied that true it is that before Thomas Chappel the Son came of Age the said Hannah died without Issue of her Body that Elizabeth Goddard before the making of the said Bond died seised in Fee of the said Messuage but that she first married with one Malm Stacy by whom she had Issue Lydia that Malm her Husband died and Elizabeth married John Goddard by whom he had Issue Hannah their only Daughter and Heir that John Goddard died and that Lydia Stacy married the Defendant Thomas Chappel by whom he had Issue Thomas Chappel his Son that Lydia died in the life-time of Elizabeth that Thomas Chappel hath not paid the 72 l. to Hannah in her life time or to John Shipley after her death The Defendant demurred and the Plaintiff joyned in Demurrer The Question was since the word Heirs in the Condition being a word of Limitation and not of any designation of the person whether the death of Hannah Goddard before Chappel the Son came of Age and who was to make the Conveyance shall excuse the Defendant from the payment of the Mony Those who argued for the Defendant 5 Co. 21. b. chiefly relied upon Laughter's Case which was viz. Laughter and Rainsford were bound that if R. after marriage with G. together with the said G. shall sell a Messuage c. if then R. do or shall in his life-time purchase for the said G. and her Heirs and Assigns Lands of as good value as the Mony by him received by the said Sale or leave her as much Mony at his decease then c. G. died R. did not purchase Lands of an equal value with that he sold and upon Demurrer it was held that where a Condition consisteth of two parts in the disjunctive and both possible at the time of the Bond made and afterwards one is become impossible by the act of God there the Obligor is not bound to perform the other part because the Condition is made for
eldest Son for sixty years if he so long lived Remainder to Thomas for Life and that John made a Lease to the Plaintiff for a year The Defendant replied that after the Devise R. Frances made a Feoffment in Fee of the same Lands amongst others to the use of himself for Life Then as to the other Lands to divers Vses contained in the Deed but as to those Lands in which the Distress was taken to the same Vses as in the Will in which Conveyance there was this Priviso That if John should disturb his Executors in the quiet Enjoyment c. or if he shall not suffer them to carry away the Goods in his House then the Uses limited to him should be void He did hinder the Executors to carry away the Goods yet it was adjudged that he should keep his Estate because being a Stranger to the Feoffment he shall not lose it without notice of the Proviso But in answer to that Case notice was not the principal matter of that Iudgment it turned upon a point in Pleading for the Avowant had not shewed any special act of disturbance and a bare denial without doing any more was held to be no breach of the Condition Some other Authorities may be cited to prove notice necessary Green's Case 6 Co. 24. as where Tenant for Life of a Mannor to which an Advowson was appendant did in the year 1594. present Durston who neglecting to read the Articles was deprived nine years afterwards by the Ordinary at the Suit of the Patron who presented him who also dyed two years after the Deprivation then the Queen presented by Lapse whose Presentee was inducted and six years afterwards Durston dyed after whose death he in Remainder presented Green now though the Patron was a Party to the Suit of Deprivation and thereby had sufficient notice that the Church was vacant yet it was adjudged that a Lapse should not incurr but only after notice given by the Ordinary himself and not by any other person whatsoever But this Case may receive this Answer viz. That notice had not been necessary at Law but it was provided by a particular Act of Parliament 13 Eliz. ca. 12. that no Title by Lapse shall accrue upon any deprivation but after six months notice thereof given by the Ordinary himself to the Patron 'T is true the Law is very tender in divesting the Rights of the Subject but where an Estate is created by the Act of the Party and restrained by particular limitations without any appointment of notice there the Law will not add notice and make it necessary because the person who made such a disposition of his Estate might have given it upon what conditions he pleased Therefore it may seem hard that this Estate should be determined by the neglect or omission of the Trustees to give notice of this Proviso but 't is apparent that it was the intent of the Father it should be so for by this Limitation the Estate is bound in the Hands of an Infant the reason is because there is a Privity between an Heir and an Ancestor and therefore the Heir is bound to take notice of such Conditions which his Ancestor hath imposed on the Estate 2. This Estate is determined by the Marriage of the Daughter with Mr. Villiers because there is an express Limitation in the Deed for that very purpose she is enjoyned to marry a Fitzgerald or one who should take upon him that name which is still more extensive and she having neglected to do the one and her Husband having refused to do the other the Aunt in Remainder shall take advantage of this Non-performance And 't is this Remainder over which makes it a Limitation 1 Ventr 202. Owen 112. Goldsb 152. Lit. Sect. 723. for if it had been a Condition then the intent of the Father had been utterly defeated for none but the Heir at Law can enter for the breach of a Condition and such was Katharine in this Case The Proviso in this Deed depends upon another Sentence immediately going before 2 Co. 70. to which it hath reference and then by the express resolution in Cromwel's Case 't is a Limitation or Qualification of the Estate and not a Condition which Estate is now determined without Entry or Claim It was argued that in this Case three things are to be considered E contra 1. The Nature of the Proviso 2. That Notice is absolutely necessary 3. That the Notice given was not sufficient being not such as is required by Law As to the 1st The very nature of this Proviso is condemned by the Civil Law and because it works the destruction of Estates it hath never been favoured at the Common Law All Conditions to restrain Marriage generally are held void by both Laws so likewise are such which restrain people from marrying without the consent of particular persons because they may impose such hard terms before they give their consent that may hinder the Marriage it self and therefore a bare request of such without their subsequent assent has been always allowed to preserve the Estate 2. And which was the principal Point Notice in this Case is absolutely necessary both by the intent of the Father and by the construction of the Law There are three things of which the Law makes an equal Interpretation viz. Uses Wills and Acts of Parliament in which if the intention of the Parties and of the Law makers can be discerned the Cases which severally fall under the direction of either shall be governed by the intention without respect to the disagreeing words nay sometimes the Law will supply the defect of words themselves The Books are full of Authorites where Constructions have been made of Acts of Parliament according to the intent of the Makers and not according to the Letter of the Law As in Eyston and Stud's Case in the Commentaries Plowd Com. 2 pt 463. where the Husband and Wife levyed a Fine of the Lands of the Wife and declared the Vses to their Heirs in Tail the Remainder to the Heirs of the Wife they had Issue and the Husband died the Widow married a second Husband and he and his Wife join in a second Fine and declared the Vses thereof to themselves for Life the Remainder to the Husband and his Heirs for sixty years the Remainder in Tail to their Issue the Remainder to the Heirs of the Wife the Issue of the first Husband entred supposing the Estate had been forfeited by the Statute of H. 7. 11 H. 7. c. 20. which Enacts That if a Woman hath an Estate in Dower or in Tail jointly with her Husband or to her self of the Inheritance or Purchase of him and she doth either sole or with another Husband discontinue it shall be void and he in the Remainder may enter Now this Case was directly within the words of the Statute for the Woman had an Estate Tail in possession jointly with her first Husband
which she had discontinued by joining in the Fine with her second Husband but yet it was adjudged no Forfeiture because it was not within the intent of the Statute to restrain Women to dispose of their own Estates but only such as came from the Husband So here Vses are in the nature of private Laws and must be governed by the like intention of the Parties now 't is not to be supposed that the Father did intend to disinherit his only Daughter and Heir without notice of this Settlement therefore though he had not appointed any person in particular to give her notice yet it must of necessity be presumed that his intention was that she should have the Estate unless she had refused upon notice to comply with those Conditions imposed upon her Now the Daughter being Heir at Law and so having a good Title by descent if there be any Conveiance made by her Ancestor to defeat that Title and to which she is a Stranger she ought by the Rules of Law and Reason to have notice of it and so is the express Resolution in Frances's Case where the Devise and the Feoffment were both made to the Heir at Law And the reason why in Fry and Porter's Case notice was not held necessary was because the Devise was to a Grandaughter who was not Heir at Law for the Earl of Newport had three Sons then living and therefore the Parties whom it concerned had the same means to inform themselves upon what Conditions they were to have the Estate 3. The notice here given was not sufficient for as the Ordinary himself in Green's Case ought to have given the Patron notice of the Deprivation before a Lapse should incurr so the Trustees here ought to give the Daughter notice of this Proviso before she shall lose her Estate for Non-performance of the Conditions on which she should take it especially since the notice she had of this Proviso was not certain for 't is said she had notice not to marry without the consent of the Trustees but 't is not shewed who they are or how she should apply her self to them Besides there is something in this Proviso which the finding in the Verdict will not supply for it may be literally true that the Daughter married without the consent of the Trustees and yet no breach of the Condition because the Proviso is to restrain her from marrying without the consent of them or their Heirs now it was not found that the Feoffees were then living and if they were dead their Consent cannot be required and she might have the consent of their Heirs Mr. Franklyn who was the Husband of Laetitia the Aunt in Remainder hath likewise forfeited that Estate which he hath or may have in right of his Wife if she had any right by not taking upon him the name of Fitzgerald for if the Father would have disinherited his Daughter for Non-performance of this Proviso a fortiori he shall be intended to disinherit his Sister for making frustrate his desire in the settlement of his Estate In Easter-Term following Iudgment was given That the Estate Tail was not determined for want of notice according to the resolution in Frances's Case Hinton versus Roffey AN Action of Debt was brought against the Defendant In pleading the Statute of Usury the Agreement and the Sum taken must be set out 12 Car. 2. c. 13. who pleaded the Statute of Usury but did not shew any particular Agreement only in general that he was indebted to the Plaintiff in a Sum not exceeding 180 l. neither did he seth forth when the Interest of the Mony did commence and on what day it became due And upon a Demurrer it was objected that this Plea was too general because the Defendant ought to shew in particular what the Sum was in which he was indebted and how much the Plaintiff took above 6 l. per Cent. for if the certainty thereof did not appear there could be no Fact applied to it But on the other side it was alledged that it was not material to shew the certain Sum which the Plaintiff took above 6 l. E contra per Cent. and therefore not necessary to set forth the particular Agreement between them for having pleaded and made a substantial Averment to bring his Case within it 't is well enough without shewing how much he took above six in the hundred And this Case was compared to Debt against an Administrator Moon versus Andrews Hob. 133. who pleaded in Bar a Iudgment c. and that he had fully administred and had not Assets praeterquam bona c. non attingen to 5 l. and upon Demurrer this was held a good Plea for though in strictness of Pleading the Defendant ought to have shewed the certain value of the Goods and not to have said non attingen to 5 l. yet the substance sufficiently appears that he had not more than 5 l. to satisfie a Debt of an 100 l. for which that Action was brought Jefferies Chief Iustice and the Court gave Iudgment for the Plaintiff because the Defendant ought to have set forth the Agreement and to apply it to the Sum in the Declaration Smith versus Goodier IN Ejectment for the Mannor of Heythorpe Attornment must be proved where an Ejectment is brought for a Mannor parcel in Rent and Services c. Vpon Not-guilty pleaded there was a Trial at Bar by an Oxfordshire Iury. The Title of the Lessor of the Plaintiff was That Edmund Goodier Esquire was seized in Fee of the said Mannor part in Demesnes some part in Leases for years with Rent reserved and some part in Services and being so seized made a Feoffment in Fee to Sir John Robinson and Sir William Rider and their Heirs in Trust for Sir Robert Masham This Deed was dated in 1647. and the consideration was 5000 l. paid to Goodier there was a Letter of Attorny of the same date with the Deed and Livery and Seisin endorsed Serjeant Maynard who was of Council for the Defendant put the Plaintiff to prove an Attornment of the Tenants for having declared for a Mannor Lit. Sect. 553. 1 Roll. Abr. 293. parcel in Rents and Services those would not pass without an Attornment and of this Opinion was the whole Court but the Plaintiff would not prove an Attornment The Defendant made a Title under the Marriage Settlement of the said Goodier who in 17 Jacobi married Elizabeth Mees and then he setled the said Mannor upon himself for life and upon his Issue in Tail Male and that the Defendant was the Heir in Tail But on the other side it was insisted that this Settlement was fraudulent against the Purchasor Evidence of a Fraudulent Settlement and that it could not be thought otherwise because both the Original and Counterpart were found in Mr. Goodiers Study after his death and because he had made Oath before a Master in Chancery that there was no incumberance
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
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