grant There is likewise a clause of warranty of which the Grantee should lose the benefit in a great measure if he were in the Post for then he shall not vouch and there are Opinions that he cannot rebut as in Spirt Bence's case There is also a Covenant that after the sealing and delivery and due execution of c. the party shall quietly enjoy c. now what execution can be meant but by Livery of seisin Foxe's case 8 Rep. has been objected in which it is resolved that the Reversion in that case should pass by way of bargain and sale though the words of grant were demise grant set and to Farm let all words proper to a Common-Law-Conveyance I answer the consideration of money there expressed is so strong a consideration as to carry it that way but the consideration of natural Affection is not so strong and so the cases are not alike the consideration of money has been held so strong as to carry an Estate of Fee-simple in an use without words of Inheritance Winnington contra He insisted upon the intention of the party the consideration of blood and natural affection and the necessity of making this deed good by way of Covenant to stand seized because it could not take effect any other way The clause of warranty and covenant for quiet enjoyment he said were but forms of Conveyances and words of Clerks but the effectual words are those that contain the inducement of the party to make the Conveyance and the words that pass the Estate he cited Plowd queries placito 305. Rolls 2 part 787. placito 25. 1 Inst 49. Poph. 49. in Fosters case which had been cited against him he said the deed was as unformal to pass the Estate one way as another In Osburn Churchman's case he said this point was started but that the resolution was not upon this point it came in question neither upon a special Verdict nor a demurrer Tibs Purplewell's case 40 41 Eliz. Rolls 2 part 786 787. answers all Objections against our case and is in form and substance the same with it He cited one Saunders Savin's case adjudged in the late times in the Common-Pleas viz. That where a man seiz'd in Fee of a Rent-charge granted it to a Kinsman for life and the grantor dyed before attornment it was resolved that upon the sealing and delivery of the deed an use arose Wherefore he prayed that the Iudgment might be affirmed Turner Chief Baron of the Exchequer Turner and Littleton Barons and Atkyns Wyndham and Ellis Iustices of the Court of Common-Pleas were for affirming the Iudgment Vaughan Chief Iustice of the Common Pleas and Thurland puisne Baron contra The six Iudges argued 1. That in a Covenant to stand seized those words of covenanting to stand seized to the use of c. are not absolutely necessary and that it is sufficient if there are words that are tantamount 2. That no Conveyance admits of such variety of words as does this of a Covenant to stand seized 3. That Iudges have always endeavoured to support Deeds ut res magis valeat c. 4. That the grantor in this case by putting in plenty of words shews that he did not intend to tye himself up to any one sort of Conveyance 5. That if the words give and grant had been alone in the deed there would have been no question and that if so then utile per inutile non vitiatur 6. That every mans deed must be taken most strongly against himself 7. That the words give and grant enure sometimes as a grant sometimes as a Covenant sometimes as a Release and must be taken in that sense which will best support the intent of the party 8. That the very point of this case has received two full determinations upon debate and that it were a thing of ill consequence to admit of so great an uncertainty in the Law as now to alter it 9. That there is here a clear intent that the daughter should have this Estate a Deed a good consideration to raise an use and words that are tantamount to a Covenant to stand seized Wherefore the Iudgment was affirm'd Thurland said The intention of the party was not a sure rule to construe deeds by that if Lands were given in connubio soluto ab omni servitio the intent of the giver is to make a gift in Frank-marriage but the Common Law that delights in certainty will not understand his words so because he does not say in libero maritagio In our case the first intent of the Father was to settle the Land upon his Daughter his second intent was to do it by such or such a Conveyance what Conveyance he meant to do it by we must know by his words the words give and grant do generally and naturally work upon something in esse strained constructions are not favoured in the Law Nor ought Heirs to be disinherited by forced and strained constructions If this Deed shall work as a Covenant to stand seized it will be in vain to study forms of Conveyances it is but throwing in words enough and if the Lands pass not one way they will another He cited Crook 279. Blitheman Blitheman's case And 34 35 Dyer 55 he said Pitfield Pierce's case in March was later then that of Tibs Purplewell and of better Authority Vaughan accordant It is not clear that the words give and grant are sufficient to raise an use but supposing that they are by a forced Exposition when nothing appears to the contrary will it thence follow that they may be taken in a sense directly contrary to their proper and genuine sense in such a place as this where all the other parts of the deed are wholly inconsistent with and will not by any possibility admit of such a construction he mentioned several clauses in the deed which he said were proper only to a Conveyance at Common Law He appealed to the Law before the Statute of Vses and said that where an use would not rise by the Common Law there the Statute executes no possession and that by such a deed as this no use would have risen at the Common Law but the Iudgment was affirmed Gabriel Miles his Case HE and his Wife recovered in an Action of Debt against one Cogan 200 l. and 70 l. damages the Wife dies and the Husband prays to have Execution upon this Iudgment The Court upon the first motion enclin'd that it should not survive to the Husband but that Administration ought to be committed of it as a thing in Action but this Term they agreed that the Husband might take out Excution and that by the Iudgment it became his own debt due to him in his own right And accordingly he took out a Scire facias Beaumond Long 's case Cr. Car. 208. was cited Anonymus THe Plaintiff in an Ejectione firmae declared upon a Lease made the tenth day of October habend '
have but one Elegit At another day the Iudges gave their Opinions severally that Iudgment ought to be given in this Court upon the whole Record for that it is an entire Record and the Execution one and if Iudgment were to be given there upon the demurrer there must be two Executions And because the Record shall not be remanded Twisden said the Record it self was here and that it had been so adjudged in King and Holland's case and in Dawkes Batter's case though my Lord Chief Baron being then at the Bar urged strongly that it was but the tenour of the Record that was sent hither And it is a Maxim in Law that if a Record be here once it never goes out again for that here it is coram ipso Rege so that if we do not give Iudgment here there will be a failer of Iustice because we cannot send the Record back The Iury that tries the Issue must assess the damages upon the demurrer The Record must not be split in this case Accordingly Iudgment was given here Willbraham Snow TRover Conversion Vpon Issue Not-guilty the Iury find a special Verdict viz. that one Talbot recovered in an Action of Debt against one Wimb and had a Fierr facias directed to the Sheriff of Chester whereupon he took the Goods into his possession and that being in his possession the Defendant took them away and converted them c. and the sole point was whether the possession which the Sheriff has of Goods by him levied upon an Execution is sufficient to enable him to bring an Action of Trover Winnington I conceive the Action does not lie An Action of Trover and Conversion is an Action in the right and two things are to be proved in it viz. a Property in the Plaintiff and a Conversion in the Defendant I confess that in some cases though the Plaintiff have not the absolute property of the Goods yet as to the Defendants being a wrong-doer he may have a sufficient property to maintain the Action against him But I hold that in this case the property is not at all altered by the seizure of the Goods upon a Fieri facias for that he cited Dyer 98 99. Yelvert 44. This case is something like that of Commissioners of Bankrupts they have power to sell and grant and assign but they cannot bring an Action their Assignees must bring all Actions It is true a Sheriff in this case may bring an Action of Trespass because he has possession but Trover is grounded upon the right and there must be a Property in the Plaintiff to support that whereas the Sheriff takes the Goods by vertue of a nude Authority As when a man deviseth that his Executors shall sell his Land they have but a nude Authority Cur. The Sheriff may well have an Action of Trover in this case As for the case in Yelvert 44. there the Sheriff seiz'd upon a Fieri facias then his Office determined then he sold the Goods and the Defendant brought Trover And it was holden that the Property was in the Defendant by reason of the determining of the Sheriffs Office and because a new Fieri facias must be taken out for that a venditioni exponas cannot issue to the new Sheriff They compared this case to that of a Carryer who is accountable for the Goods that he receives and may have Trover or Trespass at his Election Twisden said the Commissioners of Bankrupts might have an Action of Trover if they did actually seize any Goods of the Bankrupts as they might by Law Rainsford said let the Property after the seizure of Goods upon an Execution remain in the Defendant or be transferred to the Plaintiff since the Sheriff is answerable for them and comes to the possession of them by the Law it is reasonable that he should have as ample remedy to recover damages for the taking of them from him as a Carryer has that comes to the possession of Goods by the delivery of the party Morton said if Goods are taken into the custody of a Sheriff and the Defendant afterward become Bankrupt the Statute of Bankrupts shall not reach them which proves the Property not to be in the Defendant Twisd I know it hath been urged several times at the Assizes that a Sheriff ought to have Trespass and not Trover and Counsel have pressed hard for a special Verdict Morton My Lord Chief Justice Brampston said he would never deny a special Verdict while he lived if Counsel did desire it Gavell Perked ACtion for words viz. You are a Pimp and a Bawd and fetch young Gentlewomen to young Gentlemen Vpon Issue Not-guilty there was a special Verdict found Jones The Declaration says further whereby her Husband did conceive an evil Opinion of her and refused to cohabit with her But the Iury not having found any such special damage the question is whether the words in themselves are Actionable without any relation had to the damage alledged I confess that to call one Bawd is not Actionable for that is a term of reproach used in Scolding and does not imply any act whereof the Temporal Courts take notice for one may be said to be a Bawd to her self But where one is said to be a Bawd in such actions as these it is actionable 27 H. 8. 14. If one say that another holds Bawdry it is Actionable 1 Cro. 329. Thou keepest a Whore in thy House to pull out my Throat these words have been adjudged to be Actionable for that they express an act done and so are special and not general railing words In Dimock's case 1 Cro. 393. Two Iustices were of Opinion that the word Pimp was Actionable of it self But I do not relie upon that or the word Bawd but taking the words all together they explain one another the latter words show the meaning of the former viz. that her Pimping and Bawdry consisted in bringing young men and women together and what she brought them together for is sufficiently expressed in the words Pimp and Bawd viz. that she brought them together to be naught And that is such a Slander as if it be true she may be indicted for it and is punishable at the Common Law The Court was of the same Opinion and gave Iudgment for the Plaintiff Nisi c. Healy Warde ERror of a Iudgment in Hull Weston The Action is brought upon a promise cum inde requisitus foret and does not say cum inde requisitus foret infra Jurisdictionem Twisd Though the agreement be general cum inde requisitus foret yet if he does request within the Iurisdiction it is good enough and so it has been ruled and this Error was disallowed Boswill Coats TWo several Legacies are given by Will to Alice Coats and John Coats the Executors deposit these Legacies in a third persons hand for them and take a Bond of that third person conditioned That if the Obligor at the request of
_____ shall bring in Alice and John Coats when they shall come to their Ages of Twenty one years to give such a Release to the Executors of Francis Gibbs as they shall require then c. one of the Legatees comes of age and during the minority of the other the Bond is put in Suit and this whole matter is disclosed in the Pleading And the question was whether the Defendant was obliged to bring him in to give a Release that was of Age before the Action brought or might stay till both were of Age before he procured a Release from either The Court was of Opinion that it must be taken respectively and because it appears that the Legacies were several that several Releases ought to be given upon the reason of Iustice Wyndham's case 5th Report And Twisden said if there were no more in it then this sc when they shall come to their Ages of c. it were enough to have the Condition understood respectively for they cannot come to their Ages at one and the same time And Iudgment was given accordingly Twisden If an Executor plead several Iudgments you may reply to every one of them obtent per fraudem or you may plead separalia Judicia c. obtent per fraudem but in pleading separalia Judicia obtent per fraudem if one be found to be a true debt you are gone Keeling Twisden Notwithstanding the Stat. of 23 H. 6. which obliges the Sheriff to take Bail yet he can make no other Return of a Capias then either cepi corpus or non est inventus for at the Common Law he could return nothing else and the Statute though it compels him to take Bail does not alter the Return and so in a case betwéen Franklin Andrews it has been adjudged here Crofton OFfley moved for a Certiorari to the Iustices of Peace for Middlesex to remove an Indictment against one Crofton upon the late Statute made against Non-conformist Ministers coming within five miles of a Corporation the Indictment was traversed He urged that by the Statute no Indictment will lie for such Offence For where an Act of Parliament enacts that the Penalty shall be recovered by Bill Plaint or Information as the Statute upon which this Indictment is grounded does there an Indictment will not lie 2 Cro. 643. Twisd If the Statute appoint that the penalty shall be recovered by Bill Plaint c. and not otherwise there I confess an Indictment will not lie but without negative words I conceive it will though the Statute be Introductive of a new Law and create an Offence which was none at the Common Law For whenever a thing is prohibited by a Statute if it be a publick concern an Indictment lies upon it and the giving other remedies as by Bill Plaint c. in affirmative words shall not take away the general way of proceeding which the Law appoints for all Offences Keeling differed in Opinion and thought that where a Statute created a new Offence and appointed other remedies there could be no proceeding by way of Indictment Afterward Offley moved it again and cited 2 Cro. 643. 3 Cro. 544. Mag. Chart. 201. 228. Vpon the second motion Keeling came over to Twisden's Opinion But it was objected That upon an Indictment the Poor of the Parish would lose their part of the penalty to which Twisden said that he knew it to have been adjudged otherwise at Serjeants-Inn and that where a Statute appoints the Penalty to be divided into thrée parts one to the Informer another to the King and the third to the Poor that in such case where there is no Informer as upon an Indictment there the King shall have two parts and the Poor a third The King versus Baker AN Indictment in Hull for saying these words viz. That whenever a Burgess of Hull comes to put on his Gown Sathan enters into him Levings moved that these words would not bear an Indictment Keeling The words are a Scandal to Government Levings The Indictment concludes in malum exemplum inhabitantium whereas it should be quamplurimorum subditorum Domini Regis in tali casu delinquentium And for this adjudged naught Twisden If the Defendant in an Action of Debt for Rent plead nil debet he may give in Evidence a suspension of the Rent A Parson Libels in the Spiritual Court against several of his Parishioners for Tythe-Turfe They pray a Prohibition Keeling Turfe Gravel and Chalke are part of the Fréehold and not Tythable They granted one Prohibition to all the Libels but ordered the Plaintiffs to declare severally Maleverer versus Redshaw DEbt upon a Bond of 40 l. the Condition was for appearing at a certain day and concluded if the party appeared then the Condition to be void The Defendant pleaded the Statute of 23 H. 6. Coleman The Bond is void by the express words of the Statute being taken in other form then the Statute prescribes Keeling If the Condition of a Bond be That if the Obligor pay so much money then the Condition to be void in that case the Bond is absolute Twisden I have heard my Lord Hobart say upon this occasion that because the Statute would make sure work and not leave it to Exposition what Bonds should be taken therefore it was added that Bonds taken in any other form should be void For said he the Statute is like a Tyrant where he comes he makes all void but the Common Law is like a Nursing Father makes void only that part where the fault is and preserves the rest Keeling If the Condition had béen that the party should appear and had gone no further it would then have been well enough Twisd Then why may not that which follows be rejected as idle and surplusage Cur. Advisare vult Jones versus Tresilian AN Action of Trespass of Assault and Battery Defendant pleads de son assault demesne The Plaintiff replies That the Defendant would have forced his Horse from him whereby he did molliter insultum facere upon the Defendant in defence of his possession To this the Defendant demurred Morton Molliter insultum facere is a contradiction Suppose you had said that molliter you struck him down Twisden You cannot justifie the beating of a man in defence of your possession but you may say that you did molliter manus imponere c. Keeling You ought to have replyed that you did molliter manus imponere quae est eadem transgressio Cur. Quer ' nil capiat per billam unless better cause be shown this Term. Rich Morris IN an Action of Debt for not performing an Award The Plaintiff declares that inter alia Arbitratum fuit c. Twisd That is naught Crisp versus the Mayor of Berwick AN Action of Covenant is brought against the Mayor Burgesses and Corporation of Berwick upon an Indenture of Demise wherein the Plaintiffs declare that the Defendants did demise to them a House in Berwick with a Covenant
for an excessive Distress for it is a private matter and the party ought to bring his Action To stay Haman Truant AN Action upon the Case brought upon a bargain for Corn and Grass c. The Defendant pleads another Action depending for the same thing The Plaintiff replies that the bargains were several absque hoc that the other Action was brought for the same cause The Defendant demurs specially for that he ought to have concluded to the Country Polyxfen When there is an affirmative they ought to make the next an Issue or otherwise they will plead in infinitum 3 Cro. 755. and accordingly Iudgment was given for the Defendant Fox alii Executors of Mr. Pinsent Vide supra 47. INdebitat Assumpsit The Defendant pleads that two of the Plaintiffs are Infants and yet they all Sue per Attornatum The question is if there be two Executors and one of them under age whether the Infant must sue per Guardianum and the other per Attornatum or whether it is not well enough if both sue per Attornat Offley spake to it and cited 2 Cro. 541. Pasch 11 Car. 288. Powell's case Styles 318. 2 Cro. 577. 1 Inst 157. Dyer 338. Morton I am of Opinion that he may Sue by Attorney as Executor though if he be Defendant he must appear by Guardian Rainsford I think it is well enough and I am led to think so by the multitude of Authorities in the point And I think the case stronger when Infants joyn in Actions with persons of full age He Sues here in auter droit and I have not heard of any Authority against it Twisden concurred with the rest and so Iudgment was given Moreclack Carleton UPon a Writ of Error out of the Court of Common Pleas one Error assigned was that upon a relicta verificatione a misericordia was entred whereas it ought to have been a capiatur Twisden The Common-Pleas ought to certifie us what the practice of their Court is Monday the Secondary said it was always a Capiatur It s true in 9 Edw. 4. it is said that he shall but be amerced because he hath spared the Iury their pains and 34 H. 8. is accordingly but say they in the Common Pleas a Capiatur must be entred because dedicit factum suum So they said they would discourse with the Iudges of the Common Pleas concerning it The King versus Holmes MOved to quash an Indictment of Forcible Entry into a Messuage passage or way for that a passage or way is no Land nor Tenement but an Easement and then it is not certain whether it were a passage over Land or Water Yelv. 169. the word passagium is taken for a passage over Water Twisd You need not labour about that of the passage we shall quash it as to that but what say you to the Messunge Jones It is naught in the whole for it is but by way of recital with a quod cum he was possessed c. Et sic possessionatus c. but that Twisden said was well enough Jones Then he saith that he was possessed de quodam Termino and doth not say annorum Twisden That 's naught And the Indictment was quash'd An Action was brought against the Hundred of Stoak upon the Statute of Hue and Cry and at the Trial some House-keepers appeared as Witnesses that lived within the Hundred who being examined said they were Poor and paid no Taxes nor Parish Duties and the question was whether they were good Witnesses or not Twisden Alms-people and Servants are good Witnesses but these are neither Then he went down from the Bench to the Iudges of the Common-Pleas to know their Opinions and at his return said That Iudge Wyld was confident that they ought not to be sworn and that Iudge Tyrrell doubted at first but afterwards was of the same Opinion their reason was because when the money recovered against the Hundred should come to be levied they might be worth something Hoskins versus Robins Hill 23 Car. 2. Rot. 233. IN this case these points were spoke to in Arrest of Iudgment viz. 1. Whether a Custom to have a several Pasture excluding the Lord were a good Custom or not It was said that a prescription to have Common so was void in Law and if so then a prescription to have sole Pasture which is to have the Grass by the mouth of the Cattle is no other then Common appendant Daniel's case 1 Cro. so that Common and Pasturage is one and the same thing They say that it is against the nature of Common for the very word Common supposeth that the Lord may feed I answer if that were the reason then a man could not by Law claim Common for half a year excluding the Lord which may be done by Law But the true reason is that if that were allowed then the whole profits of the Land might be claimed by prescription and so the whole Land be prescribed for The Lord may grant to his Tenants to have Common excluding himself but such a Common is not good by prescription The second point was whether or no the prescription here not being for Beasts levant couchant were good or not for that a difference was made betwixt Common in grosse and common appendant viz. That a man may prescribe for Common in grosse without those words but not for Common appendant 2 Cro. 256. 1 Brownl 35. Noy 145. 15 Edw. 4. fol. 28. 32. Rolls tit Common 388. Fitz. tit Prescription 51. a third point was whether or no these things are not help'd by a Verdict As to that it was alledged that they are defects in the Title appearing on Record and that a Verdict doth not help them Saunders contra In case of a Common such a prescription is not good because it is a contradiction but here we claim solam Pasturam Now what may be good at this day by grant may be claimed by prescription As to the Exception that we ought to have prescribed for Cattle levant couchant its true if one doth claim Common for Cattle levant couchant is the measure for the Common unless it be for so many Cattle in number but here we claim the whole Herbage which perhaps the Cattle levant couchant will not eat up Hales Notwithstanding this prescription for the sole Pasture yet the Soil is the Lords and he has Mynes Trees Bushes c. and he may dig for Turfes And such a grant viz. of the sole Pasturage would be good at this day 18 Edw. 3. though a grant by the Lord that he will not improve would be a void grant at this day Twisden My Lord Coke is express in the point A man cannot prescribe for sole Common but may prescribe for sole Pasture And there is no Authority against him And for levant couchant it was adjudged in Stoneby Muckleby's case that after a Verdict it was help'd And Iudgment was given accordingly Anonymus AN Action of
enters Mr. Attorney Finch The first question will be whether this Proviso be a Condition or a Limitation 2. Whether notice be requisite in this case or not For the first I take it to be a Limitation and that it must so be expounded and not as a Condition Dyer 10 Eliz. 317. Plowd queres 108. Moor. 312. 29 Eliz. Com. Banc. 1 Leon. Plac. 383. 2 Leon. 581. Poph. 6 7. 1 Roll. Condition 411. and the same case is in Owen's Reports 112. In case of a Devise a Condition must be construed as a Limitation 3 Cro. 388. There seems to be an Authority against me in Mary Portingtons case 10 Rep. in a reason there given but it is an accumulative reason and does not come to the point adjudged I shall insist upon Wellock Hamond's case in Leon. it is reported likewise in Boraston's case 3 Rep. and my Lord Coke says that it doth resolve a Quaere in Dyer 327. so that express words of Condition may by construction in a Will amount to no more then a Limitation The second point is whether he shall be excused for breach of this Condition for want of notice First I shall consider it in respect of the person Secondly I respect of the grounds of notice in any case First in respect of the person now he may be considered in two capacities as an Infant and as a Devisée Now his Infancy cannot excuse him for the Condition was annexed to the Devise expresly because he was an Infant Secondly He is a Purchasor Now if an Infant purchase an Advowson and the Incumbent dye Laps shall incur though he had notice of the death of the Incumbent and there is the same reason in this case where he is Deviseé Thirdly An Infant is bound by all Conditions in Déed though not by Conditions in Law Com. 57. indeed 31 Ass 17. is against it but in Bro. Condition Plac. 114. that case is said to be no Law and Bro. agreeth with Plowd 375. Secondly Consider him as Devisée and then there will be less ground to excuse the want of notice I take it to be a good difference betwixt Lands devised to an Heir upon Condition and Lands devised to a Stranger upon Condition To the Heir notice must be given but not to a Stranger for the Heir is in by Descent and a Title by Law cast upon him And he may very well be supposed to take no notice of a Devise because the Law takes no notice of a Devise to him Now a Stranger as he must needs take notice of the Estate given so he may very well be obliged to take notice of the terms upon which it is given 4 Report 83. As for the grounds and reasons of the Law when notice in any case is requisite and when not First I take it for a rule that every man is bound to take notice when none is bound to give him notice 1 H. 7. 5. 13 H. 7. 9. 5 Rep. Sir Henry Constable's case 3 Leon. Burleigh's case in the Exchequer 1 Cro. 390. Rolls 856. Litt. Sect. 350. My second ground is that where persons are equally privy and concerned there needs no notice Mich. 1649. Leviston's case 1 Leon. 31. 7 Rep. 117. Mallorie's case 14 H. 7. 21. The third consideration ariseth from the circumstances and strict formality of all notice You must not give notice of a Will by word of mouth but you must leave a Copy of it compared 8 Rep. Fraunce's case Now the Infant in Remainder is incapable of observing these circumstances and they being both Strangers are both to take notice at their peril Now to answer Objections one is that the Condition is penal and inflicts a forfeiture of an Estate and that therefore notice ought to be given I say this is rather a declamation then an argument in Law I will put a case where he that is subject to a penalty must give notice to preserve himself Poph. 10. so that penalty or no penalty is not the business but privity or no privity guides the case And Fraunce's case 8 Report was ruled upon the privity not upon the penalty 2 Cro. 56. and a case adjudged in this Court betwixt Lee and Chamberlyne seem against me but they differ from ours and the 1 Cro. a case between Alford and the Communalty of London is an Authority for me Mr. Solicitor North pro Defendente I will not speak much to that point whether it be a Condition or a Limitation I shall relie for that upon Mary Portington's case that express words of Condition cannot be construed to be a Limitation Dyer 127. Now if this be a Condition then the Heir regularly ought to enter which he cannot do in this case because a Remainder is here limited over The Law does interpret Conditions according to the nature and circumstances of the thing and not strictly always according to the Letter I do not observe that in any case the Law suffers a man to incur a forfeiture where he hath not notice or is not in the Law supposed to have notice He cited 2 Cro. 144. Molineux Molineux and Fraunce's case 8 Report He said it was not the intention of the party that the Devisée should be strip'd of his Estate and be never the wiser Saunders Gerard's case is for me of which I have a private report He urged also the case of Curtis Wolverton Dyer 354. and Penant's case 4 Report It is objected That they that are to have the benefit of the Estate ought to take notice I answer the same Objection might be made in Fraunce's case Another reason given to excuse the not-giving of notice is that the Condition imports no more then Nature teacheth but I answer in case the Executor consent it is no matter whether the Grand-mother consent or not And for their Authorities I shall rely upon 1 Cro. 391. and upon Fraunce's case for answering them So he prayed Iudgment for the Defendant Hales All the difference betwixt this case and Fraunce's is that in that case there is an Heir at Law and not in this Now the Chancery is so just as to observe the Civil and Canon Law as to personal Legacies but not as to Land Anonymus AN Action upon the case upon a promise to pay money three months after upon a Bill of Exchange The Defendant pleads non Assumpsit infra sex annos urged that as this promise is laid he ought to have pleaded that the cause of Action did not accrue within six years Sympson Non Assumpsit infra sex annos relates to the time of payment as well as to the promise Hales That cannot be Twisden If I promise to do a thing upon request and the promise were made seven years ago and the request yesterday I cannot plead the Statute but if the request were six years ago it must be pleaded specially viz. that causa actionis was above six years since Bradcat Tower AN Action was brought upon a Charter-party And
man be accursed barred of the Company or Society of Christians cut off from the body of Christ accounted as a Heathen and Publican for not allowing maintenance to his wife when the Church enjoyns him so to do and shall not this be accounted a sufficient remedy for the wife I fear it is the want of Religion and due credence to the Censures of the Church which occasions this Objection rather then real want of sufficient remedy in Law for her relief The last matter to be answered is rather the Opinion of my Brother Twisden and Tyrrell in their arguments then an Objection in this case namely if an Action upon the case doth not lye against the husband upon the Contract of the wife for necessary Apparel yet an Action of Trover and Conversion doth lye against him for the Stuff and so one way or other the husband must pay the reckoning If the Law should be so it were a Conversion with a witness for then the husband should seem to be sub potestate foeminae he might glory in the words of St. Paul I would have you know that the head of the woman is the man But if the wife shall set his cap or lay his headship in the Gaol it shall not be in the power of the husband to prevent or avoid it one kind of Divorce between husband and wife is when Action of Trespass is brought against them and the husband only appears and Process issue out against the wife until she be waived and outlawed she can never purchase her pardon or reverse the outlawry unless the husband will appear so that if the husband please he is divorced 14 H. 6. 14. a. If the wife be outlawed by erronious Process and the husband will not bring a Writ of Error he may by this way be rid of a Shrew and that doth countervail a Divorce 18 E. 4. 4. a. By these books it appears that the Law puts a power in the husband to be rid of his wife and provides a remedy to tame a Shrew but I never heard before that the Law hath left it in the power of the wife to do so by her husband and I do not remember that my Brothers did vouch any Authority or give any reason for maintenance of their Opinions and therefore I may with freedom deny the Law to be as they have said besides the nature of an Action of Trover proves that it lies not in this case The count is that the Plaintiff was possessed of such Goods and names them as of his own proper Goods and casually left them that the Goods came to the Defendants hands by finding yet he knowing them to belong to the Plaintiff refuseth to deliver them to him but hath converted them to his own use so that an Action is grounded upon a wrong supposed to be done by the Defendant in converting the Goods of the Plaintiff knowingly to his own use against the will of the Plaintiff and that is the reason why the Plaintiff in that Action must prove a demand of the Goods and an actual Conversion by the Defendant or else he fails in the Action In an Action of the Case for that the Defendant did find the Goods of the Plaintiff and delivered them to persons unknown Non deliberavit modo forma is no Plea without saying Not-guilty where the thing rests in Feasance and if the Action be that the Plaintiff was possessed Ut de bonis propriis and the Defendant did find and convert them to his own use It is no plea that the Plaintiff was not possessed Ut de bonis propriis but he must plead Not-guilty to the misdemeanour and give the other matter in Evidence 33 H. 8. Mar. Bro. Action sur le case In Trover the Plaintiff declares that he was possessed of such Goods and casually left them and the Defendant found them and converted them to his own use the Defendant did plead that the Plaintiff did gage the Goods unto him for 10 l. and that he detained the Goods for 10 l. this is no Plea but he ought to plead Not-guilty and give this matter in Evidence for the Action doth suppose a wrong which the Defendant ought to answer 4 E. 6. Action sur le case 113. What wrong is done to the Plaintiff in our case when he himself sells and delivers the Goods It is not like the case where two men by mutual consent Wrastle or play at Football together will an Action of Assault and Battery lye for the one against the other when the act is done by their mutual agreement before hand Put the case of Sale made to a man upon credit and the Vendee promiseth to pay for the Goods at Michaelmas but fails to pay the money accordingly shall the Salesman have Trover against the Vendee because he pays not the money at the day and will the Sale to this Feme Covert alter the case or the Law as to the Action its true that for a Conversion by the woman before Coverture or by the wife during the Coverture an Action of Trover lies against the husband and wife but that is for a Conversion by wrong when she takes the Goods and converts them against the will of the owner 1 Cro. 10. 254. Remis Humfrey's case as in case where a man comes to buy Goods and offers 10 l. for them and the owner agreés to accept the money whereupon the buyer takes the Goods away without payment or delivery by the owner there an Action of Trespass or Trover lies notwithstanding the bargain 21 H. 7. 6. otherwise it is if they agree upon a price and the Vendor takes the Vendee's word for payment and delivers the Goods unto him there the Vendor is put to his Action for the money upon the Contract and shall not bring Trover for the Goods 14 H. 8. 22. If an Infant give or sells Goods and delivers them with his own hand he shall have no Action of Trespass against the Donee or Vendee by reason of the delivery 21 H. 7. 39. 26 H. 8. 2. but if an Infant give or sell Goods and the Vendee or Donee takes them by force of the gift or sale the Infant may have an Action of Trespass against him So in our case If a Feme Covert takes Wares of a Shop-keeper against his will upon pretence of buying them an Action lies against the husband but if the owner sell the Goods to the wife upon trust and delivers the Goods unto her he shall not have an Action of Trespass against the husband by reason of this delivery If a man take my wife and cloath her this amounts unto a gift of the Apparel unto her 11 H. 4. 83. and I may take my wife with the Apparel and no Action lies against me by the same reason when a man delivers Stuff or other Wares to my wife knowing her to be a Femé Covert to make Apparel without my privity or allowance this shall be
of ordinary Iurisdiction If this Commitment had been by any inferiour Court it could not have been maintained But the Commitment is by a Court tht is not under the comptroll of this Court and that Court is in Law sitting at this time and so the expressing of the Contempt particularly is matter which continues in the deliberation of the Court 'T is true this Court ought to determine what the Law is in every case that comes before them and in this case the question is only whether this Court can judge of a Contempt committed in Parliament during the same Session of Parliament and discharge one committed for such Contempt When a question arises in an Action depending in this Court the Court may determine it but now the question is whether the Lords have capacity to determine their own priviledges and whether this Court can comptroll their determination and discharge during the Session a Peer committed for Contempt The Iudges have often demanded what the Law is and how a Statute should be expounded of the Lords in Parliament as in the Statute of Amendments 40 E. 3. 84. 6. 8. Co. 157 158. a fortiori the Court ought to demand their Opinion when a doubt arises on an Order made by the House of Lords now sitting As to the duration of the Imprisonment doubtless the pleasure of the King is to be determined in the same Court where Iudgment was given As also to the determination of the Session the Opinion of Coke is good Law and the addition of Proviso's in many Acts of Parliament is only in majorem cautelam Jones Attorney General to the same effect As to the uncertainty of the Commitment it is to be considered that this case differs from all other cases in two circumstances First the person that is a Member of the House by which he is committed I take it upon me to say that the case would be different if the person committed were not a Peer Secondly The Court that doth commit which is a superiour Court to this Court and therefore if the Contempt had been particularly shewn of what Iudgment soever this Court should have been as to that Contempt yet they could not have discharged the Earl and thereby take upon them a Iurisdiction over the House of Peers The Iudges in no age have taken upon them the Iudgment of what is Lex consuetudo Parliamenti but here the attempt is to engage the Iudges to give their Opinion in a matter whereof they might have refused to have given it if it had been demanded in Parliament This is true if an Action be brought where priviledge is pleaded the Court ought to judge of it as an incident to the Suit whereof the Court was possessed but that will be no warrant for this Court to assume a Iudgment of an original matter arising in Parliament And that which is said of the Iudges power to expound Statutes cannot be denied but it is not applicable in this case By the same reason that this Commitment is questioned every Commitment of the House of Commons may be likewise questioned in this Court It is objected That there will be a failer of Iustice if the Court should not discharge the Earl but the contrary is true for if he be discharged there would be a manifest failer of Iustice for Offences of Parliament cannot be punished any where but in Parliament and therefore the Earl would be delivered from all manner of punishment for his Offence if he be discharged For the Court cannot take Bail but where they have a Iurisdiction of the matter and so delivered out of the hands of the Lords who only have power to punish him It is objected That the Contempt is not said to be committed in the House of Peers but it may well be intended to be committed there for it appears he is a Member of that House and that the Contempt was against the House And besides there are Contempts whereof they have cognizance though they are committed out of the House It is objected That it is possible this Contempt was committed before the general pardon but surely such Injustice should not be supposed in the supream Court and it may well be supposed to be committed during the Session in which the Commitment to Prison was It would be great difficulty for the Lords to make their Commitments so exact and particular when they are imployed in the various affairs of the Realm and it hath been adjudged on a Retorn out of the Chancery of a Commitment for a Contempt against a Decreé that it was good and the Decrée was not shewn The limitation of the Imprisonment is well for if the King or the House determine their pleasure he shall be discharged for then it is not the pleasure of both that he should be detained and the addition of these words during the pleasure is no more than was before imply'd by the Law for if these words had been omitted yet the King might have pardoned the Contempt if he would have expressed his pleasure under the Broad Seal If Iudgment be given in this Court that one should be imprisoned during the Kings pleasure his pleasure ought to be determined by Pardon and not by any act of this Court. So that the King would have no prejudice by the Imprisonment of a great Minister because he could discharge him by a Pardon the double limitation is for the benefit of the Prisoner who ought not to complain of the duration of the Imprisonment since he hath neglected to make application for his discharge in the ordinary way I confess by the determination of the Session the Orders made the same Session are discharged but I shall not affirm whether this present Order be discharged or no because it is a Iudgment but this is not the present case for the Session continues notwithstanding the Royal Assent given to several Bills according to the Opinion of Cooke and of all the Iudges Hutton 61 62. Every Proviso in an Act of Parliament is not a determination what the Law was before for they are often added for the satisfaction of those that are ignorant of the Law Winington Solicitor General to the same purpose In the great case of Mr. Selden 5 Car. 1. the Warrant was for notable Contempts committed against us and our Government and stirring up Sedition and though that be almost as general as in our case yet no objection was made in that cause in any of the arguments Rushworths Collections 18 19. in the Appendix But I agree that this Retorn could not have béen maintained if it were of an inferiour Court but during the Session this Court can take no cognizance of the matter And the inconveniency would be great if the Law were otherwise taken for this Court might adjudge one way and the House of Peers another way which doubtless would not be for the advantage or liberty of the Subject for the avoiding of this mischief it was agreed by
cannot deprive us of the benefit of the Common Law and in the Vice-Chancellors Court they proceed by the Civil Law If you allow this demand there will be a failer of Justice for the Defendants being a Corporation cannot be arrested they can make no stipulation the Vice-Chancellors Court cannot issue Distringas's against there Lands nor can they be excommunicated Presidents we find of Corporations suing there as Plaintiffs in which case the afore-mentioned inconvenience does not ensue but none of Actions brought against Corporations Maynard contra Servants to Colledges and Officers of Corporations have been allowed the priviledge of the Vniversity which they could not have in their own right and if in their Masters right a fortiori their Masters shall enjoy it The word persona in the demand will include a Corporation well enough Vaughan Chief Justice Perhaps the words atque confirmat ' c. in the demand of Conisance are not material for the priviledges of the Vniversity are grounded on their Patents which are good in Law whether confirm'd by Parliament or not The word persona does include Corporations 2 Inst 536. per Coke upon the Statute of 31 Eliz. cap. 7. of Cottages and Inmates A demand of Conisance is not in derogation of the Common Law for the King may by Law grant tenere placita though it may fall out to be in derogation of Westminster-Hall Nor will there be a failer of Justice for when a Corporation is Defendant they make them give Bond and put in Stipulators that they will satisfie the Iudgment and if they do not perform the Condition of their Bond they commit their Bail They have enjoyed these priviledges some hundreds of years ago The rest of the Iudges agreed that the Vniversity ought to have Conisance But Atkyns objected against the form of the demand that the word persona privilegiata cannot comprehend a Corporation in a demand of Conisance howsoever the sense may carry it in an Act of Parliament Ellis Wyndham If neither Schollars nor priviledged persons had been mentioned but an express demand made of Conisance in this particular cause it had then been sufficient and then a fault if it be one in Surplusage and a matter that comes in by way of Preface shall not hurt Atkyns It is not a Preface they lay it as the foundation and ground of their claim The demand was allowed as to matter and form Rogers Danvers DEbt against S. Danvers and D. Danvers Executors of G. Danvers upon a Bond of 100 l. entred into by the Testator The Defendants pleaded that G. Danvers the Testator had acknowledged a Recognisance in the nature of a Statute Staple of 1200 l. to J. S. and that they have no assets ultra c. The Plaintiff replied that D. Danvers one of the Defendants was bound together with the Testator in that Statute to which the Defendants demur Baldwin pro Defendente If this plea were not good we might be doubly charged It is true one of us acknowledged the Statute likewise but in this Action we are sued as Executors And this Statute of 1200 l. was joynt and several so that the Conisee may at his Election either sue the surviving Conisor or the Executors of him that is dead so that the Testators Goods that are in our hands are lyable to this Statute It runs concesserunt se utrumque eorum if it were joynt the charge would survive and then it were against us It is common for Executors upon pleinment administer pleaded to give in Evidence payment of Bonds in which themselves were bound with the Testator and sometimes such persons are made Executors for their security The Opinion of the Court was against the Plaintiff whereupon he prayed leave to discontinue and had it Amie Andrews ASsumpsit The Plaintiff declares that whereas the Father of the Defendant was endebted to him in 20 l. for Malt sold and promised to pay it that the Defendant in consideration that the Plaintiff would bring two Witnesses before a Iustice of Peace who upon their Oaths should depose that the Defendants Father was so endebted to the Plaintiff and promised payment assumed and promised to pay the money then avers that he did bring two Witnesses c. who did swear c. The Defendant pleaded non Assumpsit which being found against him he moved by Sergeant Baldwin in Arrest of Iudgment that the consideration was not lawful because a Iustice of Peace not having power to administer an Oath in this case it is an extrajudicial Oath and consequently unlawful And Vaughan was of Opinion that every Oath not legally administred and taken is within the Statute against prophane swearing And he said it would be of dangerous consequence to countenance these extrajudicial Oaths for that it would tend to the overthrowing of Legal proofs Wyndham Atkins thought it was not a prophane Oath nor within the Statute of King James because it tended to the determining of a controversie And accordingly the Plaintiff had Iudgment Horton Wilson A Prohibition was prayed to stay a Suit in the Spiritual Court commenced by a Proctor for his Fees Vaughan Wyndham No Court can better judge of the Fees that have been due and usual there then themselves Most of their Fees are appointed by constitutions Provincial and they prove them by them A Proctor lately libell'd in the Spiritual Court for his Fees and amongst other things demanded a groat for every Instrument that had been read in the cause the Client pretended that he ought to have but 4 d. for all They gave Sentence for the Defendant the Plaintiff appealed and then a Prohibition was prayed in the Court of Kings Bench. The Opinion of the Court was that the Libell for his Fees was most proper for the Spiritual Court but that because the Plaintiff there demanded a customary Fee that it ought to be determin'd by Law whether such a Fee were customary or no and accordingly they granted a Prohibition in that case It is like the case of a modus for Tythes for whatever ariseth out of the custom of the Kingdom is properly determinable at Common Law But in this case they were of Opinion that the Spiritual Court ought not to be prohibited and therefore granted a Prohibition quoad some other particulars in the Libell which were of temporal cognisance but not as to the suit for Fees Wyndham said if there had been an actual Contract upon the Retainer the Plaintiff ought to have sued at Law Atkyns thought a Prohibition ought to go for the whole Fées he said had no relation to the Iurisdiction of the Spiritual Court nor to the cause in which the Proctor was retain'd No Suit ought to be suffered in the Spiritual Court when the Plaintiff has a remedy at Law as here he might in an Action upon the case for the Retainer is an implied Contract A difference about the grant of the Office of Register in a Bishops Court shall be
Defendants as Executors also they pleaded severally plene administravit Vpon one of the Issues a Special Verdict was found viz. that the said Defendant being Executor durante min ' aetate of an Infant had paid such and such Debts and Legacies and had delivered over totum residuum status personalis of the Testator to the Infant Executor when he came of Age. Iustice Atkyns This special Verdict does not maintain the Defendants plea of fully administred for that cannot be pleaded unless all Debts c. are discharged as far as the Assets will reach which is not done here for residuum status personalis is delivered over c. and that residuum is lyable to the payment of this Debt which is yet undischarged But Vaughan Wyndham and Ellis held that however an Executor dischargeth himself of the Estate that was the Testators he may plead fully administred and that it is his safest plea. It was found by the same Verdict that the Testator left a personal Estate to the value of 2000 l. that there were owing by him 500 l. in Debts upon specialties 500 l. more upon simple Contracts and that he had disposed of 400 l. in Legacies and that this Defendant was Executor durante minor ' of the Testators Son that he had paid 1400 l. in discharge of the Debts and Legacies aforesaid and had accounted with the Infant Executor when he came of age and that upon the payment of 91 l. to him the Infant Executor released to him all Actions c. and whether upon this whole matter this Defendant should be said to have administred was the question Vaughan When an Infant Executor comes of age the power of an Executor durante minore aetate ceaseth and the new Executor is then lyable to all Actions if the former Executor wasted the new one hath his remedy against him but he is not lyable to other mens Suits Nor is there any inconvenience in this for still here is a person lyable to all Actions It is objected that possibly the new Executor is not of ability to satisfie I answer if in some particular case it fall out to be so that is by accident and to argue from the possibility of such an accident is to suppose the Law fitted to answer all emergencies Atkyns accorded Vaughan It is said that here are 1500 l. lyable to pay this Debt for to pay debts upon simple Contracts or Legacies before it is a devastavit especially the Defendant having notice of this debt which was also found That is a mistake upon which some books run but it is certainly no Law Debts upon simple Contracts may be paid before Bonds unless the Executors have timely notice given them of those Bonds and that notice must be by Action Atkyns and Ellis agréed with Vaughan Wyndham dubitabat The case was put off to be argued next Trinity Term but in the mean time the Plaint discontinued Scudamore Crossing Exch. Chamber EJectione firmae A special Verdict it was found that a man by Deed did give and grant bargain and sell alien enfeoff and confirm to his daughter certain Lands but no consideration of money is mention'd nor is the Deed enroll'd there is likewise no consideration of natural Affection expressed other then what 's implyed in naming the Grantee his daughter there is no Livery endorsed nor any found to have been made nor was the daughter in possession at the time of the Deed made The question was whether this were a void Deed or had any operation at all in the Law and what was wrought by it In the Kings Bench it was adjudged by the whole Court to be a good Deed and that it carried the Estate to the daughter by way of covenant to stand seized Vpon a Writ of Error before the Iustices of the Common-Pleas and the Barons of the Exchequer the case was argued at Sergeants-Inn by Sir William Jones against the Deed aud by Sir Francis Winnington in maintenance of it Jones Before the Statute of Vses a man might either have retained the possession and have departed with the use or he might have departed with the possession and have retained the use or he might have departed with them both together The Statute unites the possession to the use but leaves men at liberty to convey their Estates by putting the possession out of themselves and limiting an use or by raising an use and let the possession follow that Now how shall it be known when an Estate must pass one of these ways and when the other That must appear by the intention of the party expressed in the Deed. Some Conveyances contain words that look both ways some one way and some another If the words look both ways then has he to whom the Estate is intended to be conveyed election to take it whether way he likes best Sir Rowland Heyward's case 2 Rep. Adams Steer 2 Cr. 210. so in Mich. 9 Jacob. a man in consideration of money did grant enfeoff bargain and sell and in the deed there was a Letter of Attorney to make Livery resolved to be a good Conveyance by way of bargain and sale if the deed were enrolled Rolls second part 787. Where the words are only proper to pass an Estate by way of use there you shall never take an Estate at Common Law Cr. Jac. 210. in Adams Steer's case Denton Fettyplace's case 30 Eliz. is there cited that by the words of bargain and sale without attornment a Reversion passeth not Vide ibid. 50. Dr. Atkyns case The King bargains and sells c. no use can rise because the King cannot stand seized to an use Moor 113. On the other side where the words are proper to pass the Estate at Common Law there nothing shall pass by way of use Dyer 302. b. a quaere is there made whether or no if a man in consideration of natural affection c. release to his brother who is not in possession whether an use hereby ariseth to the relessee but this Quaere is resolved in a manuscript Report that I have of that case viz. That no use does arise He cited Ward Lambert's case Cr. Eliz. 394. Osburn Churchman's case Cr. Jac. 127. which is the case in question In Rolls second part fol. a man in consideration of marriage did give and grant to his wife after his decease to her and the heirs of her body c. and it was resolved that nothing passed This case is much stronger then ours for there is but one way to make this good viz. by raising an use for as a Conveyance at Common Law it cannot be good because a Freé-hold cannot be granted to commence in futuro and yet rather then recede from the words of the party the deed was adjudged to be void He cited Foster Foster's case Trin. 1659. which himself had argued In the deed here in question there are words proper to pass an Estate in possession give and
to chuse every year two Surveyors to take care that no unwholsome Victuals were sold within the Precinct of that Mannor and that they were sworn to execute their Office truly for the space of a year and that they had power to destroy whatever corrupt Victuals they found exposed to sale and that the Defendants being chosen Surveyors and sworn to execute the Office truly examining the Plaintiffs meat who was also a Butcher found a side of Beef corrupt and unwholsome and that therefore they took it away and burnt it prout eis bene licuit c. The Plaintiff demurs North. This is a case of great consequence and seems doubtful It were hard to disallow the Custom because the design of it seems to be for the preservation of mens health And to allow it were to give men too great a power of seizing and destroying other men's Goods There is an Ale-taster appointed at Leets but all his Office is to make Presentment at the Leet if he finds it not according to the Assize Wyndham Atkyns Ellis It is a good reasonable Custom It is to prevent evil and Laws for prevention are better then Laws for punishment As for the great power that it seems to allow to these Surveyors it is at their own peril if they destroy any Victuals that are not really corrupt for in an Action if they justifie by virtue of the Custom the Plaintiff may take issue that the Victuals were not corrupt But here the Plaintiff has confessed it by the demurrer Atkyns said if the Surveyors were not responsible the Homage that put them in must answer for them according to the rule of respondeat superior Iudgment was given for the Plaintiff unless c. Thredneedle Lynham's Case UPon a special Verdict the case was thus The Iury found that the Lands in the Declaration are and time out of mind had been parcel of the demesnes of the Mannor of Burniel in the County of Cornwall which Mannor consists of demesnes viz. Copy-hold tenements demisable for one two or three lives and services of divers Free-hold Tenants that within the Mannor of Burniel there is another Mannor called Trecaer consisting likewise of Copy-holds and Free-holds and that the Bishop of Exeter held both these Mannors in the right of his Bishoprick Then they find the Statute of 1. Eliz. in haec verba They find that the old accustomed yearly Rent which used to be reserved upon a demise of these two Mannors was 67 pounds 1 s. and 5 d. then they find that Joseph Hall Bishop of Exeter demised these two Mannors to one Prowse for 99 years determinable upon three lives reserving the old and accustomed Rent of 67 l. 1 s. and 5 d. that Prowse living the Cestuy que vies assigned over to James Prowse the demesnes of the Mannor of Trecaer for that afterwards he assigned over all his Interest in both Mannors to Mr. Nosworthy excepting the demesnes of Treacer then in the possession of James Prowse That Mr. Nosworthy when two of the lives were expired for a sum of money by him paid to the Bishop of Exeter surrendred into his hands both the said Mannors excepting what was in the possession of James Prowse and that the Bishop Joseph Hall's Successor redemised unto him the said Mannors excepting the demesnes of Trecaer and excepting one Messuage in the occupation of Robert and excepting one Farm parcel of the Mannor of Burniel for three lives reserving 67 l. 1 s. 5 d. with a nomine poenae and whether this second Lease was a good Lease and the 67 l. 1 s. 5 d. the old and accustomed Rent within the intention of the Statute of 1 Eliz. was the question After several arguments at the Bar it was argued at the Bench in Michaelmas Term Ann. 26 Car. 2. And the Court was divided viz. Vaughan Ellis against the Lease Atkyns Wyndham for it This Term North Chief Justice delivered his Opinion in which he agreed with Atkyns Wyndham so that Iudgment was given in maintenance of the Lease and the Iudgment was affirmed in the Kings Bench upon a Writ of Error The Chapter of the Collegiate Church of Southwell versus the Bishop of Lincoln and J. S. Incumbent c. IN a Qua. imp the Incumbents Title was under a grant made by the Plaintiffs who were seized of the Advowson ut de uno grosso in the right of their Church of the next avoidance one Esco being then Incumbent of their Presentation to Edward King from whom by mean assignments it came to Elizabeth Bley who after the death of Esco presented the Defendant Vpon a demurrer these points came in question 1. Whether the grantors were within the Statute of the 13 Eliz. or not 2. Whether a grant of a next avoidance be restrained by the Statute 3. If the grant be void whether it be void ab initio or when it becomes so And 4. Whether the Statute of 13 Eliz. shall be taken to be a general Law for it is not pleaded Serjeant Jones For the first point argued that the Grantors are within the Statute the words are Deans Chapters which he said might well be taken severally for of this Chapter there is no Dean If they were to be taken joyntly then a Dean were not within this Law in respect of those possessions which he holds in the right of his Deanry but the subsequent general words do certainly include them and would extend even to Bishops but that they are superiour to all that are expressed by name For the second he said the Statute restrains all gifts grants c. other then such upon which the old Rent c. He cited Cr. Eliz. 440. 5. Co. the case of Ecclesiastical persons 10 Co. the Earl of Salisbury's case For the third point he held it void ab initio it must be so or good for ever For here is no Dean after whose death it may become void as in Hunt Singleton's case the Chapter in our case never dies For the fourth point he argued that it is a general Law because it concerns all the Clergy Holland's case 4 Rep. Dumpor's case ibid. 120. b. Willmote contra North Chief Justice Atkyns Wyndham Ellis Iustices all agreed upon the three first points as Serjeant Jones had argued Atkyns doubted whether the 13 of Eliz. were a general Law or not but was over-ruled They all agreed that the Action should have been brought against the Patron as well as against the Ordinary and the Incumbent but that being only a plea in abatement that the Defendant has waived the benefit thereof by pleading in Bar. And Iudgment was given for the Plaintiff Nisi causa c. Hunt Singleton's case being mentioned Atkyns said he thought it a hard case considering that the Dean and the Chapter were all persons capable that a grant should hold in force as long as the Dean lived and determine then He thought they being a Corporation aggregate of
common right the words of reservation ought to be pursued but as to this the Court delivered no Opinion Ognell versus the Lord Arlington Guardian of Sir John Jacob. UPon a Trial at Bar the Court delivered for Law to the Iury that if there be Tenant by Elegit of certain Lands and a Fine be levied of those Lands and five years with non-claim pass that the interest of the Tenant by Elegit is bound according to Saffyn's case 5 Rep. otherwise if the Land had not been actually extended Also that if an Inquisition upon an Elegit be found the party before entry has the possession and a fine with non-claim shall bar his right for before actual entry he may have Ejectione firmae or Trespass and so not like to an interesse termini Barry Trebeswycke IF a Parson have a Pension by Prescription he may either bring an Action at the Common Law or commence a Suit in the Spiritual Court but if he brings a Writ of Annuity at the Common Law he can never after sue in the Spiritual Court for that his Election is determined Wakeman Blackwell IN a Quare impedit the Defendant pleaded a recovery in this manner viz. that John Wakeman Grandfather to the Plaintiff was seized in fee of the Mannor to which c. and that a Praecipe was brought against one Prinne Philpotts adtunc tenentes liberi tenementi c. who appeared and vouched John Wakeman c. and that this Recovery was to the use of J. S. under whom the Defendant claims Strode pro Defendente it is not necessary that the Tenant in a Common Recovery have a Freehold at the time of the purchase of the Writ if he have at the time of the return it sufficeth 7 Ed. 3. 42. 7 Ed. 3. 70. Ass of no. diss 43 Ed. 3. 21. in these Authorities the person against whom the Praecipe is brought comes in by right after the purchase and before the return of the Writ But in 26 Ed. 3. 68. there is an example where the Tenant to the Praecipe comes in by tort but there is this difference if he comes to the Land by his own act be it by right or by wrong there he makes the Writ good otherwise if he come to it by act of Law 8 Ed. 3. 22. a. Formedon 25 H. 6. 4. the reason why you shall not abate the Plaintiffs Writ by your own act is because you cannot give him a better The demandant here is estopped to say that there was not a Tenant to the Praecipe in this Recovery for the Writ is but abatable if brought against one that is not Tenant and as long as it stands not abated but is pleaded to c. it shall conclude all that are parties and privies and all claiming under them 34 Ed. 3. F. tit droit 39. here is in our case an estoppell with a recompence Wakeman the Grandfather who was the first Vouchee in this Recovery might have counterpleaded the lien and extorted the warranty but having vouched over he is past that advantage and is concluded being made a party by Voucher This being a common Recovery the Court will do all they can to make it good A Fine is levied by Dedimus potestatem by Baron and Feme The Commissioners did not return the examination of the wife and yet that is the discriminating difference upon which depends whether the wife shall be bound by the Fine or not 15 Ed. 4. 28. a. Litt. Sect. 670. 6 Ed. 3. 22. a. The Court must needs in this case intend that Prinne Philpots came in by conveyance because Wakeman came in upon the Voucher which he would not have done if there had not been a lien He cited Cro. Jac. 454. Lincoln Colledge case 3 Rep. 48. Hob. 262. Duncomb Wingfield's case To which Pemberton answered that tunc tenens is a sufficient averment in the pleading of a Recovery which is favoured in Law but it is not good alone when in the same sentence a matter is set forth that is inconsistent with it and plainly contradictory as in this case and of that opinion was the Court. The case in Hob. they said was upon a special Verdict where many things may be intended which shall not be so in pleading and in Lincoln Col ' case the Writ is said to be brought against one Edw. Chamberlain in one part of the Record and the Mother is said to be Tenant in another part of the Record and by the other party but here in the same sentence unto flatu there is a flat contradiction Burrow Haggett FOrmedon in the descender The Defendant pleaded in abatement of the Count and took these exceptions 1. That the demandant declares that the right descended to him after the death of Leonard as Brother and heir to Leon and Son and Heir of the Donee but does not alledge that Leonard died without issue 8 Rep. 88. Buckmere's case In ancient Registers the clause is eo quod the issue dyed without issue Co. Ent. 254. b. c. Rast Entr. 365. C. Yelv. 227. Glasse Gyll's case 9 Ed. 4. 36. a man that entitles himself as heir must shew how he is heir Seyse contra The presisidents are on our side and the difference is betwixt a Formedon in the descender and a Formedon in the remainder or reverter In the former they do not mention the dying without issue of him after whose death they claim for the Count there is in effect only to set out their pedigreé but in a Formedon in the Remainder or Reverter it is otherwise 39 Ed. 3. 27. Old Book of Ent ' 339. tit Formed ' bar plac ' 3. Co. Lit. Mandevile's case 26 b 7 H. 7. fol. 7. b. there our case is put in express terms the exception taken to the Count there by Keble is the same that is taken to ours here and there it is over-ruled North I have looked into presidents and find the Count in this case according to them It is a plain and reasonable difference betwixt a Formedon in the discender and a Formedon in the remainder or reverter nor could the demandant be brother and heir to Leonard if Leonard had left children c. Another exception was that the demandant does not set forth that he was Son and heir of John begotten on the body of Jane his wife for it was a gift in special tail But this was over-ruled for in the Writ that is set forth and in the Declaration after the words filio haeredi praedict Johannis came an c. which c. let the words of the Writ into the Count and so it was held good The Prothonotaries said that the forms of Counts were accordingly And Iudgment was given to answer over Nisi causa c. Term. Mich. 28 Car. II. in Communi Banco Blythe versus Hill DEbt upon an Obligation for the payment of money at a day certain The Defendant pleaded that the Plaintiff being
have the security given by the Defendant for his appearance it is all one to him whether it be good or no. Strode contra Why must the Sheriff always aver that he has taken sufficient Sureties if their sufficiency be not material Why is an Action allowed to lie if the Sheriff take no Sureties at all since according to my Brothers Opinion the party has no interest in them If the Law be as they argue the Statute has left the Plaintiff in a worse condition then he was at the Common Law for it has deprived him of the remedy that he had before and the Amercements belong not to him but to the King Cur ' The sufficiency of the bail is not material it is only for the Sheriffs own security If he take no bail at all an Action lies against him for then he does not act by colour of this Law Atkyns The Statute is not advantagious to the Plaintiff at all unless the Sheriff let go the prisoner without taking any bail and then he must render treble damages And by the Opinion of the whole Court Iudgment was given for the Defendant Moor versus Field A Custom was alledged that all persons in a Parish that had Shéep upon their ground on Candlemas-day should be discharged of Tythes of all Sheep that should be upon their ground after in that year upon payment of full Tythes for all the Sheep that were there upon that day and this was adjudged an unreasonable Custom Serjeant Turner argued for it and cited Rolls Abr ' 2 part 647 648. Term. Hill 28 29 Car. II. Communi Banco Strode versus l'Evesque de Bath Wells and Sir George Horner and Masters QUare Impedit the Plaintiff entitles himself by vertue of a Grant of the next Avoidance made by Sir George Horner and counts that Sir George was seized in fee of the Mannor of Dowling to which the advowson was appendant and presented J. S. who was admitted instituted c. and that then he granted the next Avoidance to the Plaintiff and that J. S. died and it belongs to him to present Serjeant Barton The Plaintiff has failed in his Count he says That Sir George was seized and presented but he does not say That he presented tempore pacis F. N. B. 33. Hob. 102. 6 Co. 30. 1 Inst 249. F. N. B. 31. 5 Co. 72. Vaug. 53. Strode When the Plaintiff makes his Title by a Presentation he ought to say That it was tempore pacis but Sir Georges Title is by reason of his being seized of the Mannor of Dowling to which the Advowson is appendant So that the difference as to that will be betwixt an Advowson in gross and an Advowson appendant Cur. When a man shews a precedent Right and then alledges a Presentation in pursuance of that Right as in this case the Plaintiff does in Sir George Horner there it needs not be alledged to have been tempore pacis but where no Title is alledged so that the Presentation only makes the Title there it must be pleaded tempore pacis Davies Cutt. DAvies as Administrator to Eliz. B. a feme Covert brings an Action of Debt upon a Bond against Cutt. The Defendant pleads That Administration of the Wives goods ought de jure to be committed to the Husband who was then alive upon this there was a Demurrer and it was resolved for the Plaintiff for he is rightful Administrator till his Letters of Administration are repealed James Johnson TRespass For taking and driving away some Beasts of the Plaintiff the Defendant justifies for that he and all they whose Estate he has in such a Mannor the Mannor of Blythe have had a Toll for all Beasts driven over the said Mannor viz. ½ d. a Beast if under twenty and if above then 4 d. a score Issue being joyned upon this justification a special Verdict was found viz. That the Mannor aforesaid was parcel of the Possessions of the Priory of Blythe that the Prior had by Prescription such a Toll as appurtenant to the said Mannor that by the dissolution it came to the Crown and so to Sir Gervase Clifton and at last to one Bingley in whose Right as Servant to him the Defendant justifies but then they conclude that if the Defendant may entitle himself to it by a que estate they find for the Defendant if not then for the Plaintiff Serjeant Baldw. For the Plaintiff it does not appear whether the Toll which the Defendant claims be a Toll-thorough or a Toll-traverse or what sort of Toll it is A Toll-thorough is against common Right because it is to be taken in the Kings High-way And no Prescription can be for it unless he that claims it shew that the Subject has some advantage by it And when a man claims a Toll-traverse he must lay it to be for a way over his own Freehold Keil 148. Statham Toll 2. Pl. 236. Moor 574. Cr. Eliz. 710. Keil 152. A Toll supposeth a Grant from the Crown and therefore when the Mannor of Blythe came to the Crown the Toll was disjoyned from the Mannor and became in gross Nor can a Toll be appendant to a Mannor nor claimed by a que estate Serjeant Maynard The Iury have found exactly whatever the Defendant has disclosed in his Plea and have made a special conclusion upon a Point of pleading Toll may be appurtenant to a Mannor as well as any other profit a prendre Nor does it become in gross by the Mannor coming to the Crown The difference is as to that betwixt things that had a being in the Crown before they were granted out to Subjects and things which had not 9. Rep. The Case of the Abbot of Strata Marcella There is no such legal difference between a Toll-thorough and a Toll-traverse as has been offered the words are used promiscuously in our Books A Toll-thorough may be by Prescription without any reasonable cause alledged of its commencement for having been paid time out of mind the true cause of its beginning in the intendment of the Law cannot be known And for the que estate indeed a thing that lies in grant cannot be claimed by a que estate directly by it self but it may be claimed as appurtenant to a Mannor by a que estate in the Mannor c. Cur. accord and gave Iudgment for the Defendant Atkyns When Toll is claimed generally it shall be intended Toll-thorough and so is the case in Cr. Eliz. 710. Smith Shepheard Lord Townsend versus Hughes AN Action upon the Stat. de Scandalis Magnatum for these words viz. My Lord Townsend is an unworthy Person and does things against Law and Reason Vpon issue Not Guilty there was a Verdict for the Plaintiff and four thousand pounds damages given The Defendant moved for a new Trial because of the excessiveness of the damages and a President was cited a of new Trial granted upon that ground and no other And Atkins was for granting a new Trial. North
Windham and Scroggs contr for that the Iury are the sole Iudges of the damages At another day it was moved in arrest of Iudgment That the words are not actionable And of that Opinion was Atkyns But North Windham Scroggs contr And so the Plaintiff had Iudgment Atkyns The occasion of the making of the Stat. of 5 Rich. 2. appears in Sir Robert Cotton's Abr. of the Records of the Tower fol. 173. num 9. 10. he says there That upon the opening of that Parliament the Bishop of St. Davids in a Speech to both Houses declared the Causes of its being summoned and that amongst the rest one of them was to have some restraint laid upon Slanderers and Sowers of Discord which sort of men were then taken notice of to be very frequent Ex malis moribus bonae Leges The Preamble of the Act mentions false News and horrible Lyes c. of things which by the said Prelates c. were never said done nor thought So that it seems designed against telling stories by way of News concerning them The Stat. does not make or declare any new Offence Nor does it inflict any new Punishment All that seems to be new is this 1. The Offence receives an aggravation because it is now an Offence against a positive Law and consequently deserves a greater Punishment as it is held in our Books That if the King prohibit by his Proclamation a thing prohibited by Law that the Offence receives an aggravation by being against the King's Proclamation 2. Though there be no express Action given to the party grieved yet by operation of Law the Action accrews For when ever a Statute prohibits any thing he that finds himself grieved may have an Action upon the Statute 10 Rep. 75. 12 Rep. 100. there this very Case upon this Statute was agreed on by the Iudges So that that is the second new thing viz. a further remedy An Action upon the Stat. 3. Since the Stat. the party may have an Action in the tam quam Which he could not have before Now every lye or falsity is not within the Stat. It must be horrible as well as false We find upon another occasion such a like distinction It was held in the 12 Rep. 83. That the High-Commission Court could not punish Adultery because they had Iurisdiction to punish enormous Offendors only So that great and horrible are words of distinction Again it extends not to small matters because of the ill consequences mentioned Debates and Discord betwixt the said Lords c. great peril to the Realm and quick subversion and destruction of the same Every word imports an aggravation The Stat. does not extend to words that do not agree with this Description and that cannot by any reasonable probability have such dire effects The Cases upon this Statute are but few and late in respect of the antiquity of the Act. It was made Anno 1379. for a long time after we hear no tydings of an Action grounded upon it And by reading it one would imagine that the makers of it never intended that any should be But the Action arises by operation of Law not from the words of the Act nor their intention that made it The first Case that we find of an Action brought upon it is in 13 H. 7. which is 120 years after the Law was made so that we have no contemporanea expositio which we often affect That Case is in Keil 26. the next in 4 H. 8. where the Duke of Buckingham recovered 40 l. against one Lucas for saying that the Duke had no more conscience than a Dog and so he got money he cared not how he came by it He cited other Cases and said he observed That where the words were general the Iudges did not ordinarily admit them to be actionable otherwise when they charged a Peer with any particular miscarriage Serjeant Maynard observed well That the Nobility and great men are equally coucerned on the Defendants part for Actions upon this Statute lie against them as well as against the meanest Subject Acts of Parliament have been tender of racking the King's Subjects for words And the Scripture discountenances mens being made Transgressors for a word I observe that there is not one case to be met with in which upon a motion in arrest of Iudgment in such an Action as this the Defendant has prevailed The Court hath sometimes been divided the matter compounded the Action has abated by death c. but a positive Rule that Iudgment should be arrested we find not So that it is time to make a President and fix some Rules according to which men may demean themselves in converse with great persons Misera est servitus ubi jus est vagum Since we have obtained no Rules from our Predecessors in Actions upon this Statute we had best go by the same Rules that they did in other Actions for words In them when they grew frequent some bonnds and limits were set by which they endeavoured to make these Law certain The Actions now encrease The stream seems to be running that way I think it is our part to obviate the mischief So he was of Opinion That the Iudgment ought to be arrested but the Court gave Iudgment for the Plaintiff North. There are three sorts of Hab. Corp. in this Court 1. Hab. Corp. ad respondendum and that is when a man hath a cause of suit against one that is in prison he may bring him up hither by Hab. Corp. and charge him with a Declaration at his own suit 2. There is a Hab. Corp. ad faciendum recipiendum and that Defendants may have that are sued in Courts below to remove their Causes before us Both these Hab. Corp. are with relation to the suits properly belonging to the Court of Common Pleas. So if an inferiour Court will proceed against the Law in a thing of which we have Conisance and commit a man we may discharge him upon a Hab. Corp. this is still with relation to Common Pleas. A third sort of Hab. Corp. is for priviledged Persons But a Hab. Corp. ad subjiciendum is not warranted by any Presidents that I have seen Term. Pasch 29 Car. II. in Communi Banco Hall Booth NOrth In Actions of Debt c. the first Process is a Summons if the Defendant appears not upon that a Cap. goes and then we hold him to Bail The reason of Bail is upon a supposition of Law that the Defendant flies the Iudgment of the Law And this supposition is grounded upon his not appearing at the first For if he appear upon the Summons no Bail is required And this is the reason why it is held against the Law for any inferiour Court to issue out a Capias for the first Process For the liberty of a man is highly valued in the Law and no man ought to be abridged of it without some default in him A Church is in decay the Bishops Court must
to have gone to one Iustice c. first as the Statute directs that he might take order and direction in it and then if he could not compound and agree it he might have applyed himself to the Sessions For the Statute intended there should be if possible a Composure in private and the power of the Session is Conditional viz. if the one Iustice cannot end it In Case of a Bassard Child they cannot go to the Sessions per Saltum and we doubt they cannot in this Case It is a new Case And then the matter will be whether this ought to be set down in the Pleading Adjornatur Rex versus Ledginham INformation setting forth that he was Lord of the Mannor of Ottery St. Mary in the County of Devonshire wherein there were many Copyholders and Freéholders and that he was a man of an unquiet mind and did make unreasonable Distresses upon several of his Tenants and so was communis oppressor perturbator pacis It was proved at the Trial that he had distrained four Oxen for three pence and six Cows for eight pence being Amercements for not doing Suits of Court and that he was Communis oppressor perturbator pacis The Defendant was found guilty It was moved in arrest of Iudgment that the Information is ill laid First It is said he disquieted his Tenants and vexed them with unreasonable distresses It is true that is a fault but not punishable in this way For by the Statute of Marlebridge cap. 4. V. 2 In. 106 7. he shall be punished by grievous Amercements and where the Statute takes care for due punishment that method must be observed 2. As to the matter it self they do not set forth how much he did take nor from whom so that the Court cannot judge whether it is unreasonable or no nor could we take Issue upon them 3. As to the words Communis oppressor perturbator pacis they are so general that no Indictment will lie upon them 2 Ro. 79. Jones 302. Cornwalls Case which indeed goeth to both the last points Twisden Communis oppressor c. is not good such general words will never make good an Indictment save only in that known Case of a Barretor for Communis Barrectator is a term which the Law takes notice of and understands It is as much as I have heard Iudges say as a common Knave which contains all Knavery For the other point an Information will not lie for taking outragious distresses It is a private thing for the which the Statute gives a remedy viz. by an Action upon the Statute tam quam Cur̄ It is naught Adjorn Roberts versus Marriot AN Action of Debt brought upon a Bond to submit to an award The Defendant pleads Nullum fecerunt arbitrium The Plaintiff replies and sets forth an award made by two Prebends of Westminster and that it was delivered to the party according to the condition of the Bond c. The Defendant rejoyns that it was not delivered c. Et hoc paratus est verificare The Plaintiff demurs Serjant Baldwynne and Winington pro defend Jones pro querente Cur. The Defendant having first pleaded Nullum fecer ' arb and then in his Rejoynder that it was not delivered which is a Confession that there was an award made has committed a departure and so it has been judged If he had pleaded Nullum fec̄ arbitrium c. absque hoc that it was tendered c. it had been naught and it is as bad now Also when the Plaintiff replies that the award was delivered and the Defendant saith It was not he should have concluded to the Country and not as he doth hoc paratus est verificare for otherwise the party might go in infinitum and there would be no end of pleading Note there was an Exception taken to the award viz. that it was awarded that there should be a release of all Specialties among other things whereas Specialties were not submitted Cur. Then the award is void as to that only But indeéd if the breach had been assigned in not releasing the Specialties it had béen against the Plaintiff But now take Iudgment Wood versus Davies TRov conv de tribus struibus foeni Anglice Ricks of Hay Moved in arrest of Iudgment that it was too uncertain For no man could tell how much was meant by strues It was urged it should have been so many Cart loads or the like For loads was adjudged uncertain in Glyn's time here But Rainsford and Moreton who only were in Court judged it well enough John Wooton versus Penelope Hele. Vide Mich. 21 Rot. 210. COvenant upon a Fine The Plaintiff declares That whereas quidem finis se levavit in Curia nuper pretens Custodum libertatis Angliae authoritate Parliamenti de Banco apud Westmonnast ' c. a die Sancti Michaelis in unum mensem anno Domini 1649. Coram Olivero St. John Johanne Pulison Petro Warburton Leonard ' Atkins Justic̄ c. inter praed Johannem Wotton c. quer ' praed ' Johannem Hele Penelopen Hele per nomina Johannis Hele Armigeri Penelopes uxoris ejus deforc̄ inter alia de uno Messuagio c. Per quem finem praed ' Johannes Hele Penelope concesserunt praed tenementa praed John W. habendum tenendum c. pro termino 99 annorum proximorum post decessum Gulielmi Wootton c. si Johannes Wootton modo querens Gracia Wootton tamdiu vixerint aut eorum Alter tamdiu vixerit praed ' J. H. Penelope haered ipsius Johannis Warrant̄ praed Jo. W. praed ' tenementa c. Contra omnes homines pro toto termino praed prout per Recordum finis praed c. plenius apparet Virtute cujus quidem finis praed J. W. fuit possessionat̄ de interesse praed termini c. sic inde possessionat̄ existens praed ' Guliel W. c. postea scil sexto die c. obierunt post quorum mortem praed J. W. in tenementa praed c. intravit fuit inde possessionat̄ c. sic inde possessionat̄ existens praed J. H. postea scil c. obiit praed Penelope ipsum supervixit idem Johannes W. in facto dicit quod quidem Hugo Stowel Armiger post commensationem termini praed durante termino illo ante diem Impetrationis hujus Billae scil c. habens legale jus titulum ad tenementa praed c. in super possessionem termini praed ipsius J. W. in eisdem intravit ipsumque J. W. contra voluntatem ipsius J. W. per debitum Legis processum a possessione occupatione tenementorum praed ejecit expulit amovit ipsumque J. W. sic inde expuls a possessione sua inde custodivit Extra tenuit adhuc Extra tenet Contra formam effectum finis warrant̄ praed sic idem praed J. W. dicit quod praed
against the Infant Sir Heneage Finch Solicitor General The Witnesses who swear that the Earl said He would give the Estate to her prove nothing to the purpose For he did so but upon a condition That they did not hear The after-consent of the Earls or the Countess ought not to make it good which consent at last perhaps was extorted by importunity or compassion For at first they disapproved the Marriage Marrying without consent and dying without issue are coupled in the same Line and the Estate shall as effectually pass over to the Defendant upon the one Limitation as the other For such consent is matter ex post facto and suspitiously to be scan'd For we ought in this Case by Law to proceéd strictly and not derogate from my Lord Newport's intent which plainly appears by the letter of his Will that his Grand-Child should ask consent of such he had thereby appointed to consent before her Marriage were solemnized the actual solemnization of which was an act so permanent that it would admit of no alteration or dissolution An act of such force and efficacy tending clearly and immediatly to the ruine of their Right and Title to the Estate in question and rendring it wholly uncapable of Reviver by any other means than what the Common and Civil Laws of this Realm do permit The post-consent therefore will not avail the Plaintiffs in this Court. Otherwise the Defendant claiming by this Limitation should have indeéd advantage but such as is inconsiderable being liable to alteration by the pleasure of this Court. And for a strict observation of the Testators words the same ought to be in Equity as well as at Law What great respect the old Heathens paid to the Wills of deceased persons may appear in these following Verses Sed Legum Servanda fides suprema voluntas Quod mandat fierique jubet parere necesse est The Countess saying likely in passion That she might marry whom she would c. did not amount to a dormant Warrant to her to marry without consent I am upon Conjecture still that the Plaintiff will insist upon these particulars for it looks as if they would because they read them Doubtless the primary intention of the Clause was in terrorem But the Secondary was that if she offended she should undergo the penalty His intention is to be gathered out of the words only and what ever they say the Earl intended does not press the Question Our Frée-hold is setled in us by vertue of an Act of Parliament I lay it down for a Foundation That a Father may settle his Estate so as that the Issue shall be deprived of it for Disobedience and not be relievable in Equity And now 't is not possible that any Council could advise a man to do it stronger than it is done in this Case And shall a Child break these Bonds and look Disobedience in the face here V. 1 Cr. 476. post 694. 696. If it had been only provided that she should marry with the consent c. and no further it might have been somewhat But since he goes on and makes a Limitation over c. he becomes his own Chancellour and upon this difference are all the Presidents and even those of devising portions viz. devising them over or not as I have understood Infancy can be no excuse in case of the breach of a condition of an Estate in which the Infant is a Purchasor So that nothing rests now in this Case but the point of Notice And why should not the Infant be bound to take notice in this Case as he is to take notice in case of a Remainder wherein he is a Purchasor But if notice be necessary it is not to be tried here now If we had brought an Ejectment and supposing notice had been necessary we had failed in the proof thereof should we have beén har'd for ever as by this perpetual Injunction we should be and shall it be done now without proof If we are not bound to prove Notice at Law much less are we bound to prove it here This Case is Epidemical and concerns all the Parents of England that have or shall have Children that the Obligations which they lay upon their Children may not be cancelled wholly and this Court under colour of Equity protect them in it and be a City of Refuge for relief of such the foulness of whose actions deny them a Sanctuary Pecke If Infancy would excuse such a Clause would signifie nothing For most persons especially of that Sex marry before full age The Lords give no reason why they changed their Opinions Serjeant Fountain Yelverton's Case in 36 Eliz. is a President in the Point for us and Shipdam's Case is much like it This being of a devise Land and that of Money which if it were paid the Land was to go over The grand Objection is That here is an Estate vested by a settlement which is not to be avoided or defeated But I doubt whether a man can lay such a Restraint that there shall not be Relief in any case of Emergency and Contingency Part 712. 3. V. in Leo. 37. It is a part of the fundamental Iustice of the Nation that men should not make Limitations wholly unalterable as by the Common Law men cannot make a Feé unalienable You give relief every day where there are express Clauses that there shall be no relief in Law or Equity where a thing is appointed to be c. without relief in Law or Equity you relieve against them and look upon them to be void In our Case suppose she had married a great Lord or suppose a person had brought notice of the Trustees consent would you not have given relief But secondly I deny the Assumption This Case is not so I agrée it had been well done if they had askt my Lady Newports consent But is there a word in the Will that if the Plaintiff did not he should have no relief in Equity The Estate was devised to my Lady Newport during her life so that the Plaintiff could not be in possession and she might have lived till the Plaintiff was 21 years old Could not my Lady Newport have said Have a care how you marry for you forfeit the Estate if you marry without the consent of two of us three All Ingredients and Circumstances must be taken in a matter of Equity Is it an argument to say He has no Estate therefore take away his Wifes Estate then there will be nothing to maintain her It is agréed That if the Approbation had been precedent it had been well Now she had no notice before the Marriage that it was necessary and when she had that notice she got the approbation and that though subsequent is good enough because it was askt and gotten as soon as she had Notice that she ought to have it The Will is hereby sufficiently observed for the intent of the Will was that she should have such an
Husband as those persons should approve and this marriage is so approved I rely upon this matter but especially upon the word of Notice Serjeant Ellis There was a Case of a Proviso not to marry but with the consent of certain persons first had in writing Consent was had but not in writing and yet you rul'd it good Had this been a Condition in Law as 't is in fact the Law would have helped her If the Estate had been in her there might have been some reason that she should have 〈◊〉 taken notice how it came to her and of the Limitation c. Had the Earl been alive and consented to the Marriage after it was solemnized he would have continued his affection and the Plaintiffs have had the Estate still Why now the consent of the Lords and Countess is as much as his consent he had tranferred his consent to them This is a Ratihabitio you cannot have a Case of more Circumstances of Equity 1. An Infant 2. No notice 3. Consent after 4. Their Declaration that they thought my Lord meant it in terrorem c. What if two of the Trusteés had died should she never have married surely you would have relieved her Serjeant Baldwin Here is as full a consent to the Marriage as could well be in this Case For since the Plaintiff had no notice of the necessity of the Earls consent before the Marriage it had been the strangest and unexpectedest thing in the world that she should have gone about to have askt it The Heir should not have taken notice of such a Forfeiture and why should a man that is named by way of remainder In case of a personal Legacy this were a void Proviso by the Civil Law For I have informed my self of it It is a Maxim with them Matrimonium esse Liberum This amounts to as much as the Condition that the person should not marry at all For when 't is in the Trustées power they may propose the unagreeablest person in the World 't is a most unreasonable power and not to be favoured Sir Thomas Grimes setled his Land so that his Son should pay portions and if he did not he demised the Lands over and it was adjudged relieveable If I limit that my Daughter shall marry with the consent of two c. if each of them have a design for a different Friend if you will not relieve she can never marry Is it not more probable that if the Earl had lived he would rather have given her a Maintenance than have concluded her under perpetual misfortune and disherison Keeling Chief Justice I do not sée how an averment or proof can be received to make out a mans intention against the words of the Will 4 Co. 4. a. 5 Co. 68. Plo. 345. In Vernon's Case though it were a Case of as much Equity as could be it was denied to be received and so in my Lord Cheney's Case Here was a Case of Sir Thomas Hatton somewhat like this Case wherein no Relief could be had Vaughan Chief Justice I wonder to hear of citing of Presidents in matter of Equity For if there be equity in a Case that Equity is an universal Truth Vi. 1 In. 216. and there can be no President in it So that in any President that can be produced if it be the same with this Case the reason and equity is the same in it self And if the President be not the same Case with this it is not to be cited being not to that purpose Bridgman Lord-Keeper Certainly Presidents are very necessary and useful to us for in them we may find the reasons of the Equity to guide us and beside the authority of those who made them is much to be regarded We shall suppose they did it upon great Consideration and weighing of the matter and it would be very strange and very ill if we should disturb and set aside what has been the course for a long Series of time and ages Thereupon it was Ordered That they should be attended with Presidents and then they said they would give their Opinions Three weeks after they came into Chancery again and delivered their Opinions Seriatim in this manner viz. Hale Chief Baron The general question is whether this Decrée shall pass I shall divide what I have to say into these three questions or particulars First I shall consider whether this be a good Condition or Limitation or conditional Limitation For so I had rather call it It being a Condition to determine the Estate of the Plaintiff and a Limitation to let in the Defendant I think it is good both in Law and Equity and my reasons are first because it is a collateral Condition to the Land and not against the nature of the Estate and she is not thereby bound from Marriage Secondly it obliged her to no more then her duty she had no Mother and in case of Marriage she ought to make application to her Grandmother who was in loco Parentis and since the Estate moved from the Grandfather she was Mistris of the disposition and manner of it 'T is true by the Civil Ecclesiastical Law regularly such a Condition were void And therefore if the question were of a Legacy there might be a great deal of reason to question the validity of it because in those Courts wherein Legacies are properly handled it would have been void But this is a case of Land Devise Indeed it is agreed that this is a good Condition and not to be avoided in it self Secondly This being a good Condition and Limitation over The Question is whether there be relief against it in Equity admitting it were a wilful breach I think there ought not to be any I differ from the reasons pressed at the Bar as first That it was a devise by Will by virtue of the Statute c. but that doth not stick with me For if there may not be a relief against a breach of a Condition in a Will there would be a great shatter and confusion in mens Estates and some of those settled by great advice and there have been Presidents of relief in such cases 2 Car. Fitz versus Seymour And 10 Car. Salmon versus Bernard Secondly It has been urged there should be no relief because there is a Limitation over But that I shall not go upon neither There have been many reliefs in such Cases I will decline the latitude of the Objection for that would go a great deal further then we are aware But yet I think there ought to be no relief in this Case It is not like the case of payment of money because there the party may be answered his debt with damages at another day and so may be fully satisfied of all that is intended him But here my first reason is That it is a Condition to contain the party in that due Obedience which Law and nature require 2 'T is a voluntary settlement to the Grandaughter in