it is that if the Lord had seisin of more then the very services in this case it may not be avoyded in avowry and no fall tenure shall be avoyded c. but when he joyns another falsity and that is in the quantity of land now the false quantity of the rent had made the tenure traversable and the judgement was commanded to be entred accordingly Trin. 19. Jac. Thomas Bull Executor c. against Fankester THomas Bull Executor of William Bull brought an action against Fankester and declared that the Defendant enfeoffed his Testator in certaine land and that he covenanted for him and his heirs that he was seised of a good estate in fee and he alleadged the breach upon which they were at issue and now Attoe moved in arrest of judgement first because the Plantiff sueing as Executor had not shewed the Will for it hath been adjudged here that if a man bring an action as executor and do not shew the Will that the Defendant may demurre upon that because it is matter of substance but Hobert said it is very good because the Defendant had admitted him to be responsible but it is true he might have demurred upon the declaration as we often times adjudged here secondly Attoe said that the covenant being made with the heire the executor shall not have an action of covenant for it is annexed to the land which was granted by Hobert and Winch being only present in the Court. Note that it was said at the barre and agreed by Hobert that if the debtor make the dettee his executor he may now retain in debt against him and safely plead plene administravit if he had no other goods and shall not be driven to his special plea and so it had been agreed often times in this Court Parson and Morlees case PArson and Morlees case it was said that the Lord Chancellour presented to a venefice which belonged to the King which was above the yearly value of 20. l. per annum and this was referred to Hobert chief Iustice and to Tanfield chief Barron to certifie whether this was meerly void it remained good till it was avoyded Harris against Wiseman HArris had procured a prohibition against Wiseman who had libelled in the spiritual Court against the Plantiff for a frat in the Church which did belong to his house and it was said by Hobert and Winch only present that a man or a Lord of a mannor who had any Isle or a seat in the Church c. and he is sued for that in the spiritual Court he shall have a prohibition but not every common parishioner for every common seat and upon the first motion at the barre in this case day was given over to the Defendant to shew cause wherefore that a prohibition shall not be granted and the Defendant not having notice of that after the day the Plantiff had a prohibition and now after the day he shewed a good cause and upon that a supersedeas was granted to stay the prohibition in that case Aylesworth against Harrison AYlesworth against Harrison in debt against an executor the question was whether he may plead plene Administravit and give in evidence a debt in which the Testator was indebted to him or whether he may plead the special matter that plea amounting but to the general issue and it was argued by Harris Serjeant the Defendant may plead the special matter and shall not be bound to the general issue to leave that to the lay people who may suppose such a retainer to be an administration and he vouched the 15. E. 4. 18. if a man illiterate seale a deed which is read to him in another manner c. and he delivers that as an escrow to be delivered over as his deed upon conditions performed and this is delivered over before the conditions performed he may in this case plead the special matter and conclude so not his deed or if he will he may plead the general issue of non est factum and so is 39. H. 6. in dower the Tenant said that before marriage the husband infeoffed him and that after the Tenant let to him at Will and that the husband continued possession during his life absque hoc that he was seised of such an estate of which she might have dower and exception was taken there because that this only amounts to the general issue and yet ruled to be good for the lay people may conceive such a continuance of possession during the life of the lessee to be such an estate of which the wife may have dower if this were put upon the general issue and in our case because he had liberty to plead specially or generally he prayed that the Defendant may be admitted to plead specially and that he may not be bound to the general issue Serjeant Hendon to the contrary if one plead a plea which amounts to the general issue see Layfields case Coo. 10. and though in Woodwards case commentaries there was such a plea pleaded yet this doth not prove the contrary for in the same case no exception was taken by the Plantiff and presidents do prove that the Defendants in this kind have been compelled to plead the general issue Hobert if no special matter may be alleadged to the contrary the Defendant shall be compelled to plead the general issue and this is good discretion in the Court to take away the perplexity of pleading because one plea is as good as the other to which Winch being only present agreed and it was ordered that the Defendant here plead accordingly In debt against the heire upon the obligation of his father and in the declaration the Plantiff omitted these words obligo me et hered es meos c. and after error brought the Plantiff prayed that this might be amended because it was the misprision of the Clark only Hobert and Winch said that this shall not be amended for it is a matter of substance but because the clark who made this misprision was a good clark day was given over c. Widdow Archers case IN debt against the Widdow of Archer being executrix of her husband and the Plantiff declared that neither the Testator in his life nor the executrix after his death had paid that omitting those words licet saepius requisitus c. and evil but this omission was amended Sir Edward Grubham against Sir Edward Cooke SIr Edward Grubham brought an audita querela against Sir Edward Cooke upon a recognizance of 4000. l. and this was acknowledged to the use of his Mother and shewed that the conusor had infeoffed him and another in the land and that the conusee had sued execution only against him and it was found for the Plantiff and it was so moved in arrest of judgement by Ashley Serjeant first because he had not shewed in this audita querela when the Statute was certified nor yet the Teste nor yet the return of the writ of extent
because this is for Merchants and the Statute was made for their securitie and by intendment they are men of forraign imployment and so have the less occasion to know the Law and these Statutes of traffick are to be cherished and not be pared to the verie quick and we all agree that every substantial matter ought to be pursued but not circumstances and then the question is whether this be substance or circumstance and we also agreed that there ought to be a time certain when the money shall be paid and that is either an actual time or a legal time and for the material points that ought to be acknowledged before an officer and in the Statute of Acton Burnel this word Maior is in that and no other principal officer and yet there is no doubt but that this may be taken before another who is a principal officer of a corporation though he be not a Maior Secondly this ought to be also before the Clark Thirdly it ought to contain words obligatorie Fourthly there ought to be a person bound Fifthly this ought to contain a summe but it may be a doubt if an action of debt will lie for that Sixthly it ought to be under the seal of the partie Seventhly it ought to be under the seal of the King Eightly the inrolments is also necessarie and this Statute is such a remedy as the Common Law never gave to the King himself so all assurances in this kind are to be made to the Merchants and certainly in our case the day is not so material but the time which the law will take notice of for the ignorance of the Maior must not make any Statute void and I do not grant the case that if this was to pay 10. l. after the death of S. P. this will not make that void but if the Statute be to pay at several dayes then then it is a quere in law whether it be payable till all the dayes of payment be past as of a bond and for the writ it is but to proportion our actions according and to do after this way or manner and so upon the whole matter I conclude that the Statute is good and that the audita querela doth not lie and judgement per Curiam was commanded to be entered against the Plantiff The case of Giles Bray was moved again in arrest of judgement and Hendon said that the Plantiff had declared of a waste made after the death of the said Edmund Bray the Grandfather which was to his disinheritance c. and the Iury did finde the original lease and assignment and they found that the waste was made before such a day which was before the death of the Grandfather and now he said that because it is found generally that before the death of the Grandfather the waste was made and this was found precisely and it is not found precisely that at the time of the waste made he was termor in possession and that is not good for it may be that he made that before the assignment and then it is not punishable of waste and if the waste was made in the life of the Grandfather he ought so to have declared for otherwise it was not immediately to his disinheritance nay the Grandfather might have during his life released or confirmed to the Tenant and so have determined the waste and then he in reversion shall not recover like to the case where an Abbot declares of the waste against the lessee of his predecessor and declares of waste generally this is not good for if this was made in the time of his predecessor then he may not punish that and so in our case perchance the Grandfather had released and then he in reversion may not recover but as to the first exception the Court seemed that because the Plantiff shewed expresly that he was possessed by vertue of the lease and he being so possessed made waste the finding of the jury shall be agreeable to that and so this exception was over ruled and for the other the rule of the Court was that whether this waste was committed in the time of the Grandfather or after his death this waste was to his disinheritance and the Grandfather by his release might not by any means discharge that waste for he may not transfer that priviledge and so the judgement was given for the Plantiff The residue of Trinity Term 22. Jac. C. P. NOw the case of Sir Robert Napper and Sir Thomas Earsefield was moved again in which the Plantiff assigned the breach because that after Sir Thomas and his wife did live asunder the land was not open nor subject to distress of Sir Robert Napper and upon the opening of this to the Court the Court conceived that this rent was granted to be paid immediately and to distrain for that but afterwards there is a clause that it shall not begin in point of payment till Sir Thomas and his wife did live asunder and then it shall be paid the first day which was limited after and Crawley Serjeant said that the intent was that it should begin presently and that it should be subject to distress and therefore to make that an entire covenant is against the very intentions of the parties for covenants in nature are several also if they shall be construed otherwise the partie shall be without the remedy which was intended S. a distress but the Lord Hobert and Winch were of opinion that if Sir Thomas Earsefield had received his estate truly that he had but a reversion expectant upon a term for years and then had made such a grant and such covenants then in this case the covenant had not been broken and then the meaning would be that he should not have any rent till he had one to grant but it doth not appear here and therefore is a difference and the covenant is broken and Winch said that the intent was that the wife shall have that for her maintenance when they did live asunder so that then it shall be paid to the use of his wife for this was in trust for her and for that reason they ought to be several covenants of necessitie for the state of the Mother of Sir Thomas Earsfield did not appear in those indentures and then he ought to take that as it is at this time and the appearing of that now is not material and if any other construction shall be made then the parties to the indentures shall be deframed Hutton of the same opinion that they are several covenants in the intent and meaning of the parties and they are of several natures for the first covenant is in the affirmative the second is in the Negative and the third is in the affirmative and it is all one as if the word covenant had been to every clause in express words for he did not say that this should be alwayes open and lyable to distress according to this estate for then it had been but
had said that he took money for ingrossing of Feodaries which is desceit without question that had been actionable but there may not be Couzning without desceit And he cited Boxes case where one said of an Attorney that he was a maintainer of suits and a Champerter action lies for it shall be taken to be a scandal to him in his profession for though an Attorney may maintain suites yet he ought not to be a Champerter and he further said that he who will maintain an action for words ought to be scandalized in his publick profession and he cited a case which was in the Kings Bench Brad against Hay and the Plantiff declared that he was Bailiff to such a one and that he had the buying and the selling of his Corn and that the Defendant said of him that he sold by false measures and adjudged that no action lies for it is not a scandal to him in his publick profession and so 36. Eliz. one said of a Merchant that he kept a false debt book and because he may be a Merchant without a debt book it was ruled that an action doth not lie but if he had said of him that he deceived men by buying and selling these words had been actionable and he said that two things are required to every publick profession science and fidelity and when a man who hath a publick profession is scandalized in either of those an action of the case lies and cited Palmers case of Lincolns Inne he being a Lawyer 't was said to him by one that he had as much Law as a Iackan-apes and adjudged to be actionable for it is a scandal to him in his profession and so Sir Miles Fleetwoods case where he who is Plantiff in this action was Defendant in that he being receiver of the Court of Wards one said to him Mr. deceiver hath Couzned the King and hath dealt falsly with him and adjudged that an action upon the case lies and yet he did not shew wherein he had Couzned him or dealt deceitfully with him but yet because it appears to the Court that he might deal deceitfully and Couzen the King therefore actionable and he cited Birchleys case you have dealt corruptly an action lies and yet he did not shew wherein he had dealt corruptly and here he had said he was a Couzner by the receipt of money which is an express scandal to him in his office Winch accordingly to every office of trust is a condition in Law annexed that he deal honestly and justly and he cited Wingates case in the Kings Bench one said to another is Wingate your Attorney and the other said that he was and the other replied take heed and follow him well for else he will make you throw your purse over your bosome and it was adjudged that an action lies for it is a scandal to him in his profession and it shall be taken as much as if he had said he will make you spend all the money in your purse if you look not the better to him and so applied this to the principal case and in this case judgement was commanded to be entered for the Plantiff in the action if no other cause be shewed before such a day An action upon the case was brought for these words the Plantiff did load a ship of my Fathers with Barley and did steal and Couzned 7. quarters thereof in measure and upon not guilty pleaded it was found for the Plantiff and now it was moved in arrest of judgement that the word Cozned being joyned with the word stole had taken away the force of that and made it but Cozning but Hutton contrary and that it shall be understood that he stole 7. quarters in measure and quantity and Winch seemed to agree and it was adjourned and an other day awarded that an action lies Godfrey Wade Alias Mack-Williams case GOdfrey Wade and others in an ejectione firme and the case upon a special verdict was to this effect Henry Mack-Williams the father was seised of land and being so seised he conveyed that to the use of himself for life the remainder to his wife for life the remainder to the heires of their two bodies engendred the remainder to the heires of the bodie of Mack-Williams the Feoffor and the remainder to his right heirs in fee and he had a son by his wife named Henry and 5. daughters and he died and afterwards the son in the life of his Mother by deed indented leased to White-Head for 31. years rendring rent and afterwards he leavies a fine to the use of himself and his heirs in fee and died and after whose death the Mother suffered a recovery within six moneths in which 4. of their husbands were vouched and the recovery was to the use of the feme for life the remainder to every one of the daughters in fee and the sole doubt was whether the lease made by Henry the son is defeated by this recovery and it was argued by Harvey Serjeant that the lease shall stand good notwithstanding this recovery suffered by the Mother for he said that Henry Mark-Williams being issue in tail and also being heire to the remainder in fee who made this lease by indenture in this case this lease issues as well out of the estate taile as out of the reversion in fee and the fine leavied in the life of his Mother binds and bars the estate taile at the time of the fine and then the lease being drawn out of the reversion in fee which discended to the daughters after the death of their brother this reversion shall be charged with the lease and the recovery had not destroyed that and this case will differ from Capels case for it is agreed if tenant in tail bee the remainder in fee and he in remainder in fee granted a rent charge and after Tenant in tail suffer a recovery by this the rent is destroyed for there he who suffered the recovery was Tenant in tail in possession but in our case when the son had leavied a fine in the life of his Mother by this fine the tail is destroyed and the Mother is become Tenant in tail after possibility of issue extinct which is only an estate for life in quantity and then though she suffers a recovery yet this doth not destroy the lease made by Tenant in tail when there was also a fine leavied to confirm that Secondly he argued that when the issue in tail in the life of his Mother made a lease for yeares by indenture and then leavied a fine and died and then the Mother being Tenant in tail and joyntress within the Statute of 11. H. 7. as in our case she is and she suffers a recovery and vouches the daughters in reversion and lessee for years enters after the death of the feme by force of 11. H. 7. for lessee for years is a person who may enter within the express words of that Statute which gives entrie to any person
covenantor shall have an estate for life and so the law makes in that case fractions of estates as the case of the Lord Seymor Dyer 96. seems to accord with this and besides those two books he said he could not finde any book which will warrant that and for that reason he held those two books to be no law for if I Covenant that my son shall have my land after my death this will not raise an estate to me by implication for life and an estate to my son and so by such means to change my estate in fee for an estate for life without more words for the word covenant in his proper and native signification is only obligatorie and yet it had been alwayes conceived sufficient to raise an use to him who is not partie to that as if I covenant with a stranger that I will stand seised of my land to the use of my son this will raise an use to my son and yet neither my son nor the covenantee may have an action of covenant but an use will very well arise to my son as if a man bargain and sell his land in consideration of 100. l. paid by I. S. though in this case the consideration ariseth from a stronger yet that will pass the use to the bargainee and in case of covenant it is not this word covenant only which creats the use but it is rather the agreement of the parties which is testified by the covenant for if sufficient agreement appears there will not need this word covenant as if I will agree and declare to stand seised to the use of my son by which it appears that the word covenant is onely declarative of the intentions of the parties and then in the principal case the covenant is not that the son shall have the land but that the land shall come remain and be to him and those words are incertain as 21. H. 7. redert come or discent and for that reason it is all one with the law of the same case and then void to raise any use for the incertainly and then when Andrew Buckley covenants that his son shall have his lands and no words to inforce his intention and for that reason the intention shall be lyable to an action of covenant and not to change his estate which he had in fee for an estate for life by this covenant but if he had expresly covenanted that in consideration of marriage of his son that he would hold his land for life and after this should be to his son this will change the estate which was in fee for an estate for life but in our case the covenant being general and left to the indifferent construction of the law the word covenant shall be taken in his proper and native signification and this is obligatorie and so he concluded that this covenant being at the first to grant a rent and was executory and the last part of that is executory for assurance and the limitation of the estate to the son being intangled between these two Covenants this shall be of the same nature and by consequence the covenant is obligatorie only and will raise no use to the son and so he concluded that judgement shall be given for the Plantiff and it was commanded to be entered accordingly Sparrow against Sowgate IN debt by Sparrow against Sowgate who declared that the Defendant became Bail for one Richard Sowgate in Banco Regis against whom the Plantiff had brought a Bill of debt of 77. l. and now the Defendant bound himself in a Recognizance of 77. l. upon which the action is now brought that in case judgement should be given against the said Richard Sowgate that he shall satisfie the said judgement or render his bodie to prison for in this case no part was impossible for after the judgement the principal may render himself in B. R. to the Marshal for the redemption of his suretie and that is the Common course there as he said but he agreed the case to be otherwise if a scire facias issue out of the Kings Bench against the Bail for there the death of the principal is a good plea for a scire facias doth not lie there till default is assigned in the principal in his not comming upon the capias ad satisfaciendum which may not be when he is dead Note that but yet before any capias it is clear he may have an action of debt Sir Robert Hitcham Serjeant of the King to the contrary and he alledged this to be the constant course in the Kings Bench that the Bail is never chargable till there is default assigned in the principal upon the recorn of the Capias ad satisfaciendum which may not be here for the principal is dead and he agreed the case of the other side that when a man is to do two things though the one is become impossible yet he ought to perform the other but when it is in the election of one to make either the one or the other then it is otherwise see Dyer 262. and so he concluded for the Defendant Hobert chief Iustice said that it is inconvenient that the Plantiff shall be forced to sue his Capias ad satisfaciendum against the partie before he have execution against the Bail for perchance he will sue a fieri facias or an elegit against him and that the Corps of the partie will not satisfie him and Browlow Prothonotary said that it had been adjudged in this Court that such plea is not good Winch the course of the Kings Bench is that default shall be assigned upon the retorn of the principal before the Bail shall be charged and though the Plantiff refuse to take his bodie after he had made his election to take his fieri facias or elegit he shall never more resort to the Bail which was granted by Hobert and Hutton as to that last point and it was holden by all the Court that if the principal render his bodie though the Plantiff refuse to take that yet that is a discharge of the Bail and also it was agreed by Hutton Hobert and by Winch that if the course of the Kings Bench be such that the Bail shall not be forfeit till there is a default assigned in the principal the same course also shall be followed here and per Curiam if the course of the Kings Bench be such that such Capias is necessary to be awarded that then a convenient time shall be allowed for the principal to render his bodie gratis and if the principal do die before such time the Bail is discharged but it was said by Winch if he die before convenient time and the Capias is awarded that such death shall not discharge the Bail note that Iones Iustice said that he thought in this case that it is necessary that the principal render himself gratis for when he is let to Bail the law supposeth him to be alwayes in custodie
the demandant who appeared and entred into warranty freely and he pleaded that he had nothing by descent from Christopher Goldingham his father upon which plea the Tenant and the vouchee were at issue and the demandant had judgement against the Tenant to recover but cesset executio until the voucher is determined and after that and before the day of the nisi prius Edward Goldingham died and then at the day the Tenant lost by default so is the Record and now upon the prayer of the demandant to have a writ of seisin these cases were moved First by Serjeant Hendon that the writ of seisin may be stayed because as he said the Tenant may revouch the heir of the heir for it is not possible that the vouchee should lose by default because that he was dead and therefore you may see that he conceived that where it is said in the Record viz. on the back of the postea that the Tenant lost by default he conceived that to be meant of the vouchee and not of the Tenant in the writ of Dower but Hutton was of opinion that admitting that it should be so intended yet he may revouch for there was a judgement given against him with a cesset executio till the voucher is determined and that is now determined by his death and when judgement is once given he had not day in Court but if the vouchee had died after the warranty then he may revouch but here the Court rather intended that the record shall be meant that the Tenant in the writ of Dower made default and then it is not possible that ever he shall revouch but they said it had been more question if the Tenant had appeared at the day of the nisi prius and had pleaded the death of the vouchee after the last continuance and had prayed the advantage of his warranty and at another day Hendon moved that the judgement given against the Tenant was not good for it was absolute with a cesset executio where that ought to be a conditional judgement c. against the Tenant if the vouchee had not assets and if he had then judgement against him according to the Lord Dyer 202. Mich. 3. Ma. Rot. 508. for otherwise the Tenant shall lose the benefit of his warrantie against the voucher and so if the heir do confess the assets yet the judgement shall be conditional for otherwise if he had not assets according to his confession the demandant shall have a new judgement against the Tenant and of this opinion was Iones Iustice But Hutton said that this was very well and that the judgement may be either wayes conditional or absolute and he said that this is no prejudice to the warranty for the Tenant may have a scire facias against the vouchee but in this case day was given over till the next Term and the Prothonotaries were commanded to search the presidents concerning that See more after Mary Over and her second husband against Tucker MAry Over and her second husband brought an action of Dower against one Tucker and demanded Dower of the indowment of one Paul her fiâ—st husband and it was agreed that this trial ought to be by witnesses according to Dyer 155. and it was awarded by the Court that the the Councel of either side should draw up Interrogatories and put their neams to them and then they should be delivered to Master Waller the Prothonotary in whose office the cause is entred and he shall have the examination of the witnesses of both sides and then seal up the Interrogatories again and so remain till they were delivered over to the Court and then qui melius probat melius habet The residue of Easter Term in the two and twentieth year of King James in C. P. AN action of debt was was brought against an Executor who pleaded plene Administravit and the other replied and shewed that before this action brought he brought another action against the Defendant in which he was outlawed and that after the reversal of the outlawrie he took out this writ c. and that he had assets at the first bringing of the first writ and issue was taken upon that and it was found for the Plantiff and it was resolved that the Plantiff shall have judgement for this is in nature of Journeys accompts according as it was in Aldridges case upon the same matter which was long debated by the Court and it was also affirmed to be good law in a writ of error brought of that in the Kings Bench for otherwise if it should not be so the Defendant himself should take an advantage of his own evil plea which the law will not allow by any means to be suffered but then it was said by the Court that in this case the Plantiff in the action ought to bring his second writ immediately after the reversal of the first judgement in the outlawry if he will take any advantage of that Trin. 22. Jac. C. P. Trinity Term in the two and twentieth year of King James in the Common Pleas. HIckford brought an audita querela against Machin and the case in effect was this Richard Davis 43. Eliz. acknowledged a Statute Merchant of 500. l. before the Maior and Clark of Gloucester to Machin and all the circumstances of the Statute de mercatoribus were well observed saving only that no day of payment was mentioned and after the said Machin took a lease for years of part of the land of which the Conusor was seised and after the Conusor died intestate and Hickford took out letters of Administration and Machin sued execution against the said Hickford who brought an audita querela and the single point was whether this Statute be good in regard that no day of payment is appointed and after divers arguments by the Serjeants in other Terms this Term it was argued by all the Court and the effect of their several arguments were in this manner Iones Iustice began and said it seems to me that the Statute is good and that no audita querela will lie and he said here had been 3. objections made against this Statute first that every Act of Parliament which gives directions for the doing of a thing ought to be precisely pursued and shall not have an explanation upon an explanation and he said that notwithstanding this objection he thought the Statute to be good for in every Act of Parliament there is substance and there is form and if the substance be observed though not every circumstance yet that is very good and so is the case concerning conditions which are as strictly to be observed as any thing yet if the substance be observed though not the very letter yet this is very good as the case of Scroop Cook 10. one Covenanted to stand seised to devise uses with a provisee that if he shall be disposed to alter disanul or change the uses c. that then it shall be lawful at all
years then this is void by resignation and so is the case of Packhurst that when he resignes during the years of the Commendam the Patron shall have that and not the King and so also my opinion is clear that if he had died within the 6. years limitted by the Commendam that the King shall not have that for then it is void by death and not by the assumption of the Bishoprick which book proves directly that a Commendam may be aswel for years as for life but yet I do not hold that upon those temporary Commendams if the Bishop continued Parson during the years and made no Act to impeach that then is a void cause S. the assumption of the Bishoprick and then when that is determined the supension is determined and it is void by the original cause S. by the assumption of the Bishoprick and this Commendam doth not turn the second or first Patron to any prejudice for the incumbent is still in by the presentation of the Patron and the determination of the Commendam is not any cause of the avoidance of the benefice but this is quasi non causa which is causa stolida as the Logicians do term it but in this case the assumption is the cause of the Cession and it is like to the case of 25. Ed. 3. 47. where the King brought a quare Impedit against the Arch-Bishop of York for a Prebendary vide the case and ruled in that case that the confirmation of the King had not taken away his title to present and the reason was because the confirmation had not filled the Church but continued that full which was full before and here this temporarie Commendam may not restrain the King to present afterwards for this is not a presentation and therefore may not take away the title of the King and here the Plantiff hath not well expressed it for he hath not shewed in this Court that the presentation of the King was lawful neither that Chardon held that by vertue of the Commendam for all the 6. years but only that the Church became void by the Laws of England and that is not sufficient and then if all before were for the Plantiff yet the question is whether he hath lost his turn and I think that he hath omnis argumentatio est à notoribus and the first is better known then the second and the second may not be the first and there when the devise gave him the first it is idle to say that he shall have the second for that departs from the meaning of the words and in every grant the law implies quantum in se est and no man may say that the devisor did intend to warrant that from antient Titles and so the Lord Hobert concluded his argument and said his opinion was that the Plantiff shall be barred and judgement was commanded to be entred accordingly Mich. 22. Jac. C.P. Michaelmas Term in the two and twentieth year of King James in the Common Pleas. DAvenport moved for the amendment of a Record where a recovery was suffered of lands in Sutton in the Countie of York and the indenture of bargain and sale was by the right name and the indenture of uses by the right name but the writ of entrie was of the Mannor of Sulton and upon the examination of the parties to be recovery that the recovery was to no other uses then is expressed and mentioned in the said indenture this was to be amended Sheis against Sir Francis Glover SHeis brought an action upon the case against Sir Francis Glover and shewed for the ground of his action that where one Harcourt was bound to the Plantiff in a Recognizance c. upon which the Plantiff took forth an elegit and the Defendant being the Sheriff of the Countie took an inquisition upon that upon which it was extended but he refused to deliver this to the Plantiff but yet he returned that he had delivered that and upon that he brought his Action and upon not guiltie pleaded it was found for the Plantiff and now it was moved in arrest of judgement by Serjeant Hendon and the reason he shewed was because he laid his action in an improper Countie for though the return was in Middlesex where the Action was brought yet because the land lies in Oxfordshire where the seisin ought to be delivered the place is Local and for that the Action ought to be brought there and now Serjeant Breamston argued that the Action was well brought in Middlesex for this being but a personal thing he may bring that in either of the Counties as 14. Ed. 4. 13. Ed. 4. 19. expresly in the point and to the second objection that had been made that an Averment may not be against the return of the Sheriff to that Breamston answered that in an other Action an Averment may be against the return of the Sheriff though not in the same Action as 5. Ed. 4. but it was agreed to have a new trial by the preservation of the Iustices for otherwise it seemed the opinion of the Court was that the Plantiff shall have judgement upon the reasons urged by Serjeant Breamston Mary Baker against Robert Baker an Infant in Dower MAry Baker brought a writ of Dower against Robert Baker an Infant who did appear by his Gardian and he pleaded that his father who was husband of the demandant was seised of a Messuage and of land in Socage and devised that to the demandant for her joynture in full satisfaction of all Dower and he shewed that after the death of his father the demandant did enter into the said Messuage and land and was seised of that by vertue of the devise and to that the demandant did replie by protestation that he did not devise and for plea confessed the seisin of the husband and her own entrie but she further shewed that the Infant who was then Tenant was but of the age of 14. years and that she entred as Gardian in Socage to the Infant and disagreed to accept of that by vertue of the devise and traversed the entire and the agreement and it was said by the Court that his bar is good though it had been more pregnant to have alledged that she entred virtute legationis praedictae and so was seised and after it was said that the Replication was very good without the traverse for this was not expresly set down but that was but meerly the consequence of the plea which in veritie was not traversable Hickman against Sir William Fish HIckman had judgement for 600. l. and 10. l. damages against Sir William Fish and he acknowledged satisfaction for 410. l. of the said debt and damages and after there was an agreement between them that if Sir William did not pay the residue by such a day that then it should be lawful for Hickman to take out execution against the said Fish without suing of any scire facias though it was after
the heir may pay that and I think that its impossible to avoid Mr. Littleton and my brothers difference of Morgage is no difference and Littleton saith that the heir may perform that because he hath an interest in the condition and the reason is not because he is charged and so the case of the feoffee may perform that and yet in both cases it is annexed as personally as it may be and Sect. 337. no mention is made of the Morgage but it s in this case if the condition had been that a stranger should pay that then this is meerly personal and so is Hill 28. Eliz. between Waltham and Ashworth if an heir is bound to perform a condition then a stranger may not perform that but any who had an interest as Gardian in Soccage or Chivalry and here by reason of the interest of the heir by the non-payment he had broken the condition for this is an hereditarie condition or limitation by which the heir had an interest now for the third point whether he is bound not having notice and I do conceive that because the notice is ancestrel and he was partie to that and so there was an original notice upon the agreement which is also hereditarie and discends to the heir and that shall force him to take notice of that at his perill but if it had been collateral to the father there I grant that will not binde the son without express notice as in Francis case for there was not any Act by which the father was bound to take notice and I desire no better case then Sir Andrew Corbets case Fourthly the estate for life is not drowned by the common law neither by the Statute for it is grounded upon the Condition and so there is not any Surrender in the case and when an agreement is that such a fine shall be levied now that shall be understood to be meant only of the reversion and he cited Sharingtons case where Tenant for life levied a fine upon conusance of right to him in reversion to the use of others there because it might not appear to be otherwise the estate of the Conusee was saved and Farmers case where a lease was made to Farmer for years rendring rent and after he bargained and sold the reversion for 41. years and then made an indenture between the lessor and the lessee and one of the bargainees that the recovery shall be suffered to the use of them and their heirs and adjudged the reversion for years was saved and so I pray judgement for the Defendant The argument of Serjeant Finch Pasch 1. Carol. ANd the following Term the case was argued by Henage Finch Serjeant of the King for the Plantiff and he said the first point is whether this made a precedent or a subsequent condition in which there had been much Logick used and it had been said that it is a rule in law that when a state is first limited and there are words of condition to devest that in that case there is a subsequent condition which ground I will not denie but I denie that here the estate is first limited for though that seems to be in words yet it is not in the intents of the parties but here first I will note an ordinary difference in our books that proviso and sub conditione are notes of a subsequent condition si of a precedent condition as appears by Mr. Littleton and the reason of this difference is because proviso and sub conditione make a full proposition and so doth not the word si and I compare that with Henry Finches case where aut and alibi never begin a sentence and so si never made an entire proposition but the proposition is that the fine shall be to the use of the Lady if Robert do not pay which is an Hypothetical proposition knit with a copulative conjunction and then the antecedent ought to be si for all doth depend upon that but it hath been objected that this is not an antecedent for it is put in the last place but I say put that where you will si will rule the sentence and will have a construction in the first place S. if Foyn do not pay 10. s. the first of September then that shall be to the use of the Lady and her heirs and there are many cases where si being so transposed will make a precedent condition 1. H. 4. 4. where the Iudges will receive the Attorney of the vouchee if his Master will consent there he is no Attorney till he do assent 3. H. 6. 71. per Martin a man made another his Executor if he will be bound to I. S. in that case before he is bound to I. S. he may not maintain an action as an Executor and so by those authorities 7. Ed. 3. 41. 14. H. 8. Whistlers case and Dyer 159. now for the second point whether by the death of Foyn the condition is discharged and I hold that it hath discharged that and I hold Littletons case where a day is limited and where not will aid me and I conceive that in many cases where Acts are not judicially annexed to the person of a man yet they may be discharged by the death of the parties if they are Colateral Acts and put the case that the use had been so limited that if I. S. do not pay so much money before c. now if I. S. do die before the day it is no question but that the condition is discharged and also if it had been limitted in this manner if Foyn do not pay this to a stranger ther by death also it is discharged and the difference I conceive is when the money is to be paid as a duty and where as a penaltie and this difference I learn of Mr. Plowden in the argument of Sir Thomas Treshams case reported by the Lord Cook and also by the Lord Dyer and by Dyer it is said that such a summe of money to be paid to the feoffes is not my duty and therefore I say this Colateral Act is meerly discharged by the death of Foyn and Littleton seems to implie so much for in all the cases of Morgages he saith that the Executor or heir may pay that but when he comes to such a feofment made to the feoffee to pay money on his part he said that if he alien the land the partie himself or the vendee may pay that but not the heirs nor Executors of the feoffees and there was a case 18th Eliz. in this Court A. levied a fine to B. and his heirs upon condition that if he pay so much to the son of A. when he comes to the age of 18. years then to the use of B. and if not to A. and his heirs and the son died before the day and the opinion was that B. shall have that now for the last point whether the estate for life is gone and I hold that it is and here he agreement of
his son and to Elizabeth Preston and to the heirs of John and so the Defendant claimed by vertue of a lease for 1000. years made by Iohn Buckley and the Plantiff demanded Dyer of the Indenture which was read to this effect that Andrew Buckley by the said Indenture covenanted with Preston that in consideration of a marriage between his son and the daughter of Preston that he will grant a rent charge of 6. l. 13. s. out of his land at Weymouth and at Melcombe Regis payable at 4. usual feasts and he Covenanted for him and his heirs that he would convey the land in Melcombe Regis and Wike Regis to such persons as Preston should appoint provided that the said Andrew Buckley and his wife may injoy that during their lives without impeachment of waste and covenanted that immediately after their deaths the lands shall immediately remain come and be to the said Iohn Buckley and Elizabeth his wife and that the advowson of Bradway shall remain come and be to the said Iohn Buckley and Elizabeth his wife and upon all the matter the question was whether by this last covenant an use will arise of the advowson in Bradway to Iohn Buckley for if an use is raised to him then this lease made by him is good and by consequence the title of the Defendants is good to present to this advowson and if not then the fee alwayes remained in Andrew Buckley the Grandfather and by devise discends did come to Andrew Buckley the Husband of the Plantiff and thâ—n the quare Impedit is maintainable And Hutton began his argument he argued that no use will arise to Iohn Buckley by this Indenture for when a man will raise an use by way of covenant there are 4. necessary things which ought to concur First is a sufficient consideration as of blood or marriage or other Collateral considerations as if I covenant with you that when you infeoffe me of certain land I will stand seised to the use of you and your heirs this is good but if the consideration be for money then this ought to be inrolled or otherwise no use will arise the second point is there ought to be a deed to testifie this agreement for otherwise no use will arise as was resolved 38. Eliz. in Collard and Collards case Thirdly he who covenants ought to be seised of the laâ—d at the time of the covenant as was resolved 37. Eliz. in Yelvertons case a man covenanted to stand seised to the use of his son of such lands as he should afterwards purchase and it was holden void because he was not seised at the time of the covenant and lastly the uses must agree with the rules of the Common law Cook 1. and he cited Chudleys case a man covenanted to stand seised to the use of one for years the remainder to the right heirs of I. S. this remainder is void though this is by way of covenant and use for the free-hold may not be in abeyance and so if I will at this day bargain and sell my lands in fee they shall not pass without the word heirs for it was not the intention of the said Statute to raise uses in such mannor contrary to the rules of the Common law or uses which are uncertain and in our case the intent was that no present use shall arise for out of the same land is granted a rent charge to Iohn Buckley and Eliz. his wife by which it appears plainly that it was not their intent that any present use should arise by the delivery of the indenture and if the use do not arise presently upon the delivery of the Indenture it shall never arise at all also the intent appears for it is that the land shall remain free from incumberances and this sounds only in covenant and for this reason the covenants shall be of the same nature and lastly the covenant is that the land shall remain and be and this is altogether incertaine and for this no use will arise because this failes of words as if I covenant to leave my lanâ— to my son after my death this will not raise an use to my son no more then if I covenant with the friends of my wife that after my death she shall have my goods this will not make my wife to be Executor and he vouched 21 H. 7. 17. 34. H. 8. 59. the Lord Borroughs case Dyer 355. 166. 324. and so be concluded that judgement ought to be given for the Plantiff Iustice Winch argued to the same purpose and he said the first part of the covenant contains that there shall be a marriage before such a day if the parties shall agree and the second part is a covenant that the feme shall have 6. l. 13. s. for her joynture and if this covenant executed an use of the land presently then this destroyes the joynture which was not the intention of the parties Thirdly there is another covenant to convey Coppihold land and if this covenant do raise an use then it will follow that Iohn Buckley shall have the land though the marriage do take effect and besides the covenant doth create an use presently or not at all and then when this use is to be raised by this covenant which contains in that nothing but future and Executory matter this will not create a present use and he cited the books which were vouched at the barre and by Hutton and so he concluded that this covenant will not raise an use presently to Iohn Buckley and that judgement ought to be given for the Plantiff And at another day the case was argued by Hobert chief Iustice for the Plantiff and that no use will arise by this covenant and he said if I will covenant to make assurance of my land to my son or to a stranger this covenant is meerly nugatorie and will not raise an use but on the contrary if I will covenant to stand seised to the use of my son though there is also a covenant to make further assurance yet this will raise a present use for the covenant is declaratory and not obligatory and so is Dyer 235. and there was no word to assure the land or to stand seised to uses but only that the land shall come remain and be in tail or in fee and there was no word to assure the land and this case is agreeable to the case of 21. H. 7. 18. by Rede that no use will arise and the reason is plain because the covenantor had election in which manner he shall have that whether by discent or in any other manner for if I covenant that my land shall descend to my son after my death no use will arise by this covenant and he put the case in Chudleys case that if a man covenant that after his death his son shall have his land in tall it is said that the son shall have an estate executed by the Statute of 27. H. 8. and the