chargeth the Defendant with cutting of Wood without the assent and assignment of the Lessor so he would compel us to prove more than we ought for if he did it with their assent only or by their assignment only it is sufficient but if the Covenant had been in the copulative both was necessary And for the nature of Copulatives he cited the Case where two Churchwardens bring an Action of Trespass the Defendant pleads That the Plaintiffs are not Churchwardens upon which they are at Issue The Iury find That the one was Church-warden and the other not and for that the Plaintiffs could not have Iudgment for if the one of them be not Churchwarden then the Plaintiffs are not Churchwardens for the copulatives ought not to be disjoyned And he cited the case lately ruled in the Common Pleas betwixt Ognel and Underwood concerning Crucifield Grange A. leased unto B. certain Lands for forty years B. leased part of the same to C. for ten years A. grants a Rent-charge out of the Lands in tenura occupatione B. It was resolved That the Lands leased to C. should not be charged with that Rent for although it was in tenura B. yet it was not in his occupation and both are exquisite because in the copulative So here the Lessee may cut Wood with the assent of the Lessor without any assignment Also here the substance of the covenant cannot charge the Defendant for although it be in the Negative yet it is not absolute in the Negative but doth refer unto the covenant precedent for the words are That the Lessee shall not cut Woods aliter quam according to the intent of the Indenture where the covenant precedent is not that the Lessee shall not cut Woods but in the Dole but that the Lessor might cut down any Trees in the Dole leaving sufficient for the Lessee which covenant in it self doth not restrain the Lessee to cut down any Trees in any part of the Lands demised nor abridgeth the power which the Law giveth to him by reason of the demise Then when this last covenant comes i. e. That the Lessee will not cut aliter then according to the meaning of the Indenture without the assent c. the same doth not restrain him from the power which the meaning of the Indenture gives and so no breach of covenant can be assigned in this For by virtue of the Lease the Lessee of common Right may take necessary Fuel upon any part of the Land leased Also this first covenant being in the Affirmative doth not abridge any Interest as 28 H. 8. 19. The Lessor covenants That the Lessee shall have sufficient Hedge-boot by assignment of the Baily It is holden by Baldwin and Shelley That the Lessee may take it without assignment because there are no Negative words non aliter So 8 E. 3. 10. A Rent of ten pounds was granted to Husband and Wife and if the Husband overlive his Wife that he shall have three pounds Rent and if the Wife do over-live the Husband she shall have forty shillings there it was holden that the Rent of ten pounds continued not restrained by the severance of any of them And although peradventure it appeareth here that the meaning of the parties was That the Lessee should not cut down any Wood but in the Dole yet forasmuch as such meaning doth not stand with the Law it shall be rejected as it was holden to be in the case betwixt Benet and French where a man seised of divers Lands devised parcel of it called Gages to the erecting of a School and another parcel unto B. in fee and all his other Lands unto one French in Fee The devise of Gages was holden void because too general for no person is named and it was further holden that it passed by the general devise to French and yet that was not the meaning of the Devisor Also the Plaintiff is not Assignee but of parcel of the Reversion for if the Reversion is granted to him for years Owen Rep. 152. 1 Co. 215. and such Assignee cannot have an Action of Covenant for a Covenant is a thing in Action and annexed to the Reversion so that if the Reversion doth not continue in its first course as it was at the time of the creation of the Covenant but be altered or divided the Covenant is destroyed and therefore it was holden 32 H. 8. betwixt Wiseman and Warringer where a Lease for years was made of one hundred Acres of Lands rendring ten pound Rent and afterwards the Lessor granted fifty Acres of it that the Grantee should not have any part of the Rent but all the Rent was destroyed So in our case here the Grantee hath but parcel of the estate a Term for years and so is not an Assignee intended as the case betwixt Randal and Brown in the Court of Wards â— Co 96â—â—â—â— Randal being seised of certain Lands covenanted with B. that if he pay unto him his Heirs and Assigns five hundred pounds that then he and his Heirs would stand seised to the use of the said B. and his Heirs Randal devised the Land to his Wife during the minority of his Son the Remainder to his Son in Fee and died having made his Wife his Executrix Brown at the day and place tendred the money generally the Wife having but an estate for years in the Land took the money It was holden that the same was not a sufficient tender for the Wife is not Assignee for she hath an Interest but for years and here the Son is to bear the loss for by a lawful Tender the Inheritance shall be devested out of him and therefore the Tender ought to be made to him and not to his Wife Also as the case is here he is no Assignee for although Charles Grice and his Wife hath the Reversion to them and the Heirs of the body of Charles and levy a Fine without Proclamations nothing passeth but his own estate and then the Conusee hath not any estate Raph. Rep. 91. â— Câ—o. 804. â—05 but during the life of Charles and then when a man is seised to him and his Heirs during the life of another he hath not such an estate as he can devise by the Statute and then when he deviseth it to his Wife for years it is void c. It was adjorned CCCXL Smith and Hitchcocks Case Trin. 33 Eliz. In the Kings Bench. Assumpsit â— Câ—o. 201. IN an Action upon the Case the Plaintiff declared that whereas the Defendant was indebted to him 19 Maii 30 Eliz. The Defendant in consideration that the Plaintiff would forbear to sue him until such a day after promised at the said day to pay the debt The Defendant pleaded how that 29 Maii 29 Eliz. he was indebted unto the Plaintiff in the said sum for assurance of which afterwards he acknowledged a Statute to the Plaintiff upon which he had Execution and had levied the money absque
every issue begotten betwixt William and Joan should have an estate for life successive and a Remainder in tail expectant as right heir of the body of William A Contingent shall hinder the execution of an estate in possession and this estate tail shall not be executed in possession by reason of the mesne Remainder for life limited to the heir of the body of William and Joan and although that these mesne Remainders are but upon a contingent and not in esse yet such regard shall be had to them that they shall hinder the execution of the estates for life and in tail in possession As if an estate be made to A. for life the Remainder to the right heirs of B. in tail the Remainder in Fee to A. although the estate tail be in abeyance and not in esse during the life of B. yet in respect thereof the Free-hold and Fee shall not be conjoyned Southcote Iustice To the same purpose And he put a case lately adjudged betwixt Vaughan and Alcock Vaughan and Alcocks case Land was devised to two men and if any of them dieth his heirs shall inherit these devisees are Tenants in common because in by devise but contrary if it were by way of Grant Lands are devised to A. and B. to be betwixt them divided they are Tenants in common Wray William and Thomas have but for life for they are purchasors by the name heir in the singular number but when he goes further and says for want of such issue to the heirs of the body of William in the plural number now Will. hath an Inheritance And if a devise be made to one for life and then to his heir for life and so from heir to heir in perpetuum for life here are two estates for life and the other Devisees have Fee for estates for life cannot be limited by general words from heir to heir but by special words they may And here Thomas being next heir of the body of William and Joan hath an estate for life and also being heir of the body of the said William hath a Remainder in tail to him limited the mesn remaineth limited to others i. e. to the next heir of the body of Thomas being in abeyance Co 11. Rep. 80. because limited by the name heir his Father being alive shall not hinder the execution of these estates but they shall remain in force according to the rules of the common Law Then Thomas so being seised levyeth a Fine against the Provision of the Will by which Thomas hath forfeited his estate for life and so his next heir shall have the Land during his life And a great reason wherefore the heirs ut supra after the two first limitations shall have tail is because that if every heir should have but for life they should never have any Interest in the Lands by these limitations for by the express words of the devise none shall take but the heir of the first heir for ever i. e. When Thomas aliens by which the use vests in Francis and when afterwards Francis levieth a Fine then the use vests in Percival Hâ—rt being next heir of the said Francis at the time of the Fine levyed notwithstanding that afterwards Francis had a Son which is his next heir and therefore the use in Percival by the birth of the said Son in Francis shall not be devested Estate vested shall not be devested because it was a thing vested in him before by purchase 9 H. 7. 25. A enfeoffs B. upon condition on the part of A. to be performed 1 Cro. 61. and dyeth having issue a Daughter the Daughter performs the condition and afterwards a Son is born the Daughter shall hold the Lands against the Son So 5. E. 4 6. A woman hath issue a Daughter and afterwards consents to a Ravisher the Daughter enters and afterwards a Son is born yet the Daughter shall hold the Lands for ever i. e. And Geofries Iustice said Francis being in by force of the Forfeiture shall not be subject to the limitation of the Will i. e. to any forfeiture if he alien for the estate which Francis hath for his life is but an estate gained by the offence of his Father and the use was limited to him upon the Will of Richard and then the said estate is not subject to the Proviso of the Will and then hath not Francis committed any forfeiture And admit Francis shall forfeit yet Percival shall get nothing thereby but the estate which Francis had at the time of the Fine levied scil the Free-hold only for no estate of Inheritance was in him living his Father As to the regress of the Feoffees Geofries was of opinion That where an use is limited to a person certain and thereupon vested in the person to whom it is limited That the Entry of the Feoffees in such case is not requisite notwithstanding that the first estates be discontinued but where the use as in our case is not limited to a person certain in esse but is in abeyance not vested in any person upon the limitation of it some estate ought to be left in the Feoffees to maintain that use and to render it according to the limitation and in our case these uses not in esse at the time of the making of the Statute of 27 H. 8. could not be executed by the said Statute but now at the appointed time by the limitation shall be raised and revived by the Entry of the Feoffees but here by the Fine and Non-claim the Feoffees are bound and their Entry taken away and so no use can accrue to Percival Hart by such Entry Southcote Iustice was of opinion that the Feoffees cannot enter at all because that by the Statute of 27 H. 8. nothing is left in them at the time of the making of the Statute which saves the right of every person c. other than the Feoffees so as no right is saved to them but all is drawn out of them by the operation of the Statute and the second saving of the Statute saves to the Feoffees all their former Right so as the Right which the Feoffees had by the Feoffment to the use is utterly gone But Percival Hart may well enter for he is not bound to the five years after the Fine levied for he had not right at the time of the Fine levied but his right came by the Fine Wray chief Iustice The Feoffees are not to enter for the Statute of 27 H. 8. hath two branches 1. gives the possession to Cestuy que use in such manner as he hath in the use 2. takes away all the right out of the Feoffees and gives it to Cestuy que use so as nothing at all remains in the Feoffees for if an Act of Parliament will give to me all the Lands whereof my brother Southcote is seised and that I shall be in the Seisin thereof now is the actual possession in me without my
petit quod inquiratur per patriam praedict Brett similiter It was moved that the parties should replead for this matter upon which they are at Issue scil the appearance is not triable by Iury but by the Record And the Court was clear of opinion that the parties should replead for the cause aforesaid And it was moved by the Lord Anderson that if A. be bound to appear in the Kings Bench at such a day and A. at the said days goe to the Court but there no process is returned then the party may go to one of the chief Clerks of the Court and pray him to take a Note of his appearance And by Nelson we have an acient form of entry of such Appearance in such Cases Ad hunc diem venit I. S. propter indemnitatem suam Manucaptorum suorum petit quod comparentia sua in Curia hic recordetur And see for the same 38 H. 6. 17. And afterwards the Lord Anderson inspecto Rotulo ex assensu sociorum awarded a Repleader And so by Nelson it hath been done oftentimes here before and put in ure The same Law is where at the day of appearance no Court is holden or the Iustices do not come c. he who was bound to appear ought to have an Appearance recorded in such manner as it may be and if the other party pleadeth Nul tiel Record it behoveth that the Defendant have the Record ready at his peril for this Court cannot write to the Iustices of the Kings Bench for to certifie a Record hither CXV Baxter and Bales Case Mich. 29 30 Eliz. In the Common Pleas. Debt not extinct by administration BAxter brought Debt upon a Bond as Executor of I. against Bale who pleaded that the Plaintiff after the death of the Testator was cited to appear before the Ordinary or his Commissary to prove the Will of the said I. and at the day of his appearance he made default upon which the Ordinary committed Letters of Administration to the Defendant by force of which he did administer so the debt is extinct c. but the whole Court was clear of opinion that the debt was not extinct for now by the probate of the Will the administration is defeated and although the Executor made default at the day which he had by the Citation before the Ordinary yet thereby he is not absolutely debarred but that he may resort to the proving of the Will whensoever he pleaseth But if he had appeared and renounced the Executorship it had been otherwise and the debt is not extinct by the Administration in the mean time CXVI Mich. 29 30 Eliz. In the Common Pleas. IN a Franchise the parties are at Issue upon a matter triable out of the Franchise And it was moved if now the Record should be sent into the Common Pleas and there tryed and after trial sent back into the Franchise Which Periam and Anderson utterly denied and by Periam there is no reason that we should be their Ministers to try Issues joyned before them And it is not like 2 Len. 37. where in a Liberty or Franchise a Forrein Voucher is to warrant Lands in such cases we shall determine the Warranty but that is by a special Statute of Glocester cap. 12. And Nelson Prothonotary said that such an Issue was tryed here of late Quod nota CXVII The Earl of Arundel and the Lord Dacres Case Mich. 29 30 Eliz. At Serjeants Inne PHilip Earl of Arundel and the Lord William Howard his Brother marryed the Daughters and Co-heirs of the late Lord Dacres And now came Francis Lord Dacres as heir male of the said Family and claimed the Inheritance c. And after long sute betwixt both parties they submitted themselves to the award of Gilbert Lord Talbot and of Arthur Lord Grey of Wilton and Windham and Periam Iustices And before them at Serjeants Inne the matter was well debated by the Council learned on both sides and as unto Greistock Lands parcel of the Lands in question the Case was That Tenant in tail makes a Feoffment in fee unto the use of himself for his life the Remainder in tail to his eldest Son with divers Remainders over with a Proviso that if any of the Entailees do any act to interrupt the course of any entail limited by the said Conveyance that then the use limited to such person should cease and go to him who is next inheritable And afterwards Tenant in tail dieth his eldest Son to whom the use in tail was first limited entreth and doth an Act against the said Proviso and yet held himself in and made Leases the Lessees enter the Lessor dieth seised his Heir being within age and in ward to the Queen It was holden by Shutleworth Serjeant Yelverton Godfrey Owen and Coke who were of Council with the Heirs general of the Lord Dacres that here is a Remitter for by this Act against the Proviso the use Remitter and so the possession doth accrue to the enfant Son of him to whom the use in tail was limited by the Tenant in tail Then when the Tenant in tail after his said Feoffment holds himself in this is a disseissin for a Tenancy by sufferance cannot be after the cesser of an estate of Inheritance But admit that he be but a Tenant at sufferance Hâ—b 255. Dy. 54. yet when he makes Leases for years the same is clearly a disseisin and then upon the whole matter a Remitter and although the Enfant taketh by the Statute yet the right of the tail descending to him afterwards by the death of his Father doth remit him as if Tenant in tail maketh a Feoffment in fee to the use of himself for life the Remainder in tail to his eldest Son inheritable to the first intail notwithstanding that the eldest Son takes his Remainder by the Statute and so be in â—â— force thereof yet when by the death of his Father the right of the Entail descends to him he is remitted CXVIII Butler and Ayres Case Mich. 29 30 Eliz. In the Common Pleas. Dower BUtler and his Wife brought a Writ of Dower against Thomas Ayre Son and Heir of Bartholmew Ayre first Husband of the said Margaret Wife of the Plaintiff and demanded Dower of Lands in A. and B the Tenant pleaded never seised que Dower and the Iury found that the said Bartholmew was seised during the Coverture de omnibus tenementis infra script preterquam the Tenements in sic ut dicta Margareta dotari potuit Exception was taken to this Verdict because that this preterquam c. doth confound the Verdict To which it was said by the Court that the preterquam is idle and surplusage for it is of another thing than that which is in demand and the seisin of the first Husband of Lands in A. and B. is confessed and the preterquam works nothing Another matter was objected because here the Iury have assessed damages
the Plaintiff and thereupon Iudgment was given for the Plaintiff CCV Read and Nashes Case Trin. 31. Eliz. In the Kings Bench. IN an action of Trespass by Read and his Wife against Nash for entring into a house called the Dayry-house upon Not guilty pleaded The Iury found this special matter Sir Richard Gresham Knight was seised in Fee of the Mannours of I. and S. and of diverse other Lands mentioned in his Will and 3 Edw. 6. devised the same to Sir Thomas Gresham his Son for life the Remainder to the first son of the said Sir Thomas Gresham in tail the Remainder to the second son c. the Remainder to the third son c. The Remainder to Sir John Gresham his brother Proviso That if his Son go about or made any Alienations or discontinuance c. whereby the premisses cannot remain descend and come in the form as was appointed by the said Will otherwise than for Ioyntures for any of their Wives for her life only or leases for 21. years whereupon the old and accustomed Rent shall be reserved That then such person shall forfeit his estate Sir John Gresham dyed Sir Thomas Gresham his son built a new House upon the Land and 4 Mariae leased to Bellingford for one and twenty years rendring the antient Rent And afterwards 2 Eliz. he levyed a fine of the said Manours and of all his Lands and 5 Eliz. he made a Iointure to his Wife in this manner sci He covenanted with certain persons to stand seised to the use of himself and his Wife for their lives and afterwards to the use of his Right Heirs and afterwards 18 Eliz. he leased unto Read and his wife for one and twenty years to begin presently which was a year before the expiration of the said Lease made unto Bellingford which Lease being expired Read entred It was argued by Cook That here upon the words contained in the Proviso Sir Thomas had power and authority not being but Tenant for life to make a Lease for years or Iointure and that upon implication of the Will which ought to be taken construed according to the intent of the parties for his meaning was to give a power as well as an estate otherwise the word otherwise should be void and it is to be observed That the parties interessed in the said conveyance were Knights and it is not very likely That the said Sir Richard Gresham did intend that they should keep the Lands in their own manurance as Husbandmen but set the same to Farm for Rent And it is great Reason although he willeâ— that the order of his Inheritance should be preserved yet to make a Provision for Iointure and it is great reason and cause to his family to enable and make them capable of great Matches which should be a strengthning to his posterity which could not be without great Iointures wherefore I conceive it reasonable to construe it so That here they have power to make Iointures for their Wives It hath been said That no grant can be taken by implication as 12 E. 3. Tit. Avow 77. Land was given to I. and A. his wife and to the heirs of the body of I. begotten and if I. A. dy without heir of their bodies betwixt them begotten that then it remain to the right heirs of I. and it was holden that the second clause did not give an estate tail to the wife by implication being in a grant but otherwise it is in Case of a devise as 13 H. 7. 17. and there is no difference as some conceive when the devise is to the heir and when to a stranger but these cases concern matter of Interest but our case concerns an Authority And admit that Sir Thomas hath power and authority to make this lease Then we are to consider if the Iointure be good for if it be Then being made before the Lease Use cannot rise out of a power it shall take effect before and the woman Iointress is found to be alive But I conceive That this Iointure is void and then the Lease shall stand for an use cannot rise out of a power but may rise out of an estate of the Testator and out of his Will 19 H. 6. A man deviseth That his Executors shall sell his reversion and they sell by Word it is a good Sale for now the Reversion passeth by the Will. But an use cannot be raised out of an use and a man cannot bargain and sell Land to another use than of the Bargainee And it is like unto the case of 10 E. 4 5. The disseisee doth release unto the disseisor rendring Rent the render is void for a rent cannot issue out of a right so an use cannot be out of a Release by the disseisee for such release to such purpose shall not enure as an Entry and Feoffment Also here after that conveyance Sir Thomas hath built and erected a New house and no new Rent is reserved upon it and therefore here it is not the ancient Rent for part of the sum is going out of the new house But as to that It was said by the Iustices do not speak to that for it appears that the Rent is well enough reserved Another matter was moved for that That a year before the Expiration of the Lease made to Billington this Lease was made to Reâ—d for 21 years to begin presently from the date of it although by the same authority he cannot make Leases in Reversion for then he might charge the Inheritance in infinitum But yet such a Lease as here is he might make well enough for this Lease is to begin presently and so no charge to him in the Reversion as in the Case betwixt Fox and Colliers upon the Statute of 1 Eliz. A Bishop makes a Lease for three years before the Expiration of a former Lease to begin presently It was holden a good Lease to bind the Successor for the Inheritance of the Bishop is not charged above one and twenty years in toto But if a Bishop make a Lease for years and afterwards makes a Lease for three lives the same is not good 8 Eliz. Dy. 246. Tenant in tail leaseth to begin at Michaelmas next ensuing for twenty years it is a good Lease by the Statute of 32 H. 8. so is a lease for 10 years and after for eleven years and yet the Statutes are in the Negative but this power in our Case is in the Affirmative and the Inheritance is not charged in the whole with more than one and twenty years CCVI. Kinnersly and Smarts Case Trin. 31 Eliz. In the Kings Bench. 〈◊〉 upon a usurious Contract 1 Cro 155. IN Debt upon a Bond The Plaintiff declared That the Bond was made in London The Defendant pleaded That an usurious Contract was made betwixt the parties at D. in Stafford-shire that the Obligation was made for the same contract The Plaintiff by Replication saith that the Bond was made bona
good will of I.S. which he cannot obtain the same remainder is not good And if one covenant to stand seised to the use of Salisbury plain for the life of I. S. and after the remainder to A it is a plain case That he in the remainder shall take presently 37 H. 6. 36. Cestuy que use willed That his Feoffees should make an estate to A. for life the remainder to C. in fee A. would not take the estate C. shall have a Subpoena against the Feoffees after the death of A. See there the case And if Land deviseable be devised to one for life the Remainder over to another in Fee and the Devisee for life doth refuse Quaere if the Devisee in Remainder shall enter presently See Fitz. Subpoena And also he put the Case where Land is devised to a Monk for life the Remainder over to another in Fee he in the Remainder shall enter presently see the same Case in Perkins 108. for the Monk never took any thing by the devise notwithstanding that there is not any particular estate upon which a Remainder can depend yet the intent of the Devisor shall be observed in as much as it may and the particular estate limited to the Monk is meerly void of which every stranger shall take advantage c. And it was resembled to a Case in Baintons Case where an use in Remainder limited upon good consideration shall be good in Law although the particular use be not grounded upon good consideration so faileth And he urged a Case alleadged by Popham in the Case of the Earl of Bedford that if in Cranmers Case the estate for years limited to the Executors 2 Leâ— 5. 6. had been limited to Administrators it had been meerly void and the use in tail limited in tail should begin presently that was by reason of the interval betwixt the death of Cranmer the taking of the Letters of Administration in which mean time there is not any person capable and therefore the Remainder shall vest presently which is a fit case to prove the Case at Bar And he remembred that in the Argument of Cranmers Case Lovelace Serjeant would have an Occupancy in the Case of such a Term limited to Administrators quod omnes Justiciarii negaverunt and in the said Case of Cranmer it was holden that the Lease for years being void the estate in the Remainder did begin presently without expecting the effluxion of the years c. And truly a Term imports in it self an Interest but if the limitation had been after the Term of twenty four years c. the same implyeth but a bare time And to that purpose he cited the Case 35 H. 8. Br. Exposition 44. A. Leaseth to B. for ten years it is covenanted betwixt them that if B. pay unto A. within the said ten years one hundred pounds that then he shall be seised to the use of B. in Fee B. surrenders his Term to A. and within the said ten years pays the one hundred pounds to A. here B. shall have Fee for the years are certain contrary if the Covenant had been If he pay within the Term. Popham Attorney General Contrary The use shall not go beyond the Contract here the Term doth not vest in that it was Limited for want of sufficient consideration of the Lord Paget the intent was not that his son should have possession of the land before the term of 24. years expired Use what it is A use is a thing in Conscience according to confidence to be guided by the intent of the parties upon such Case at the Common Law W. Paget should not have a Subpoena before the years expired and this word Term doth not alter the Case and there is a great difference betwixt an use raised by Feoffment and an use raised by Covenant For in the first case the Feffor doth dipossess himself utterly if it takes not effect to one purpose it shall take effect to another purpose But in the Case of a Covenant it is otherwise for the use riseth according to the contract not otherwise here the Contract is That W. Paget shall have the Land not immediatly after the death of his Father but after the 24 years expire Owen Serjeant It hath been agreed of both sides That every use shall go according to the intent of the parties and here it appeareth That it was the intent of the Lord Paget to put all the use out of himself and I see not any difference betwixt an use raised by Covenant and a use raised by Feoffment For a use limited utrovis modo to Pauls Steeple for the life of A. and after to the use of B. in Fee the first use is void but the second good and here the meaning of the Lord Paget plainly appears for there is a Proviso in the Indenture That after the said debts and legacies paid the use limited for 24 years shall cease and it is exprestly averred that they are paid 11. H. 4. A. leaseth for life the remainder in tail to himself the Remainder over to a stranger in Fee the mean Remainder limited by A. to himself is void and the remainder over shall be immediate to the estate for life Egerton The words of the Indenture and the intent of the parties are the rules of uses The first use is void For the intent of the Lord Paget was void because contrary to the Law and Eusal to whom the use for years was limited could not take presently for his estate is limited to begin after the death of the Lord Paget and there is a great difference betwixt uses raised by Covenant and by Feoffment For when a use is raised by Feoffment there all is out of the Feoffor the land is gone the use is gone the trust is gone nothing remaineth but a bare authority to raise uses out of the possession of the Feoffees being new uses there although some of them be void yet the other shall stand but where a use is raised by way of Covenant there the covenantor continues in possession there the uses limited if they be according to Law shall raise draw the possession out of him but if not the possession shall remain in him until a lawful use shall arise which before its time shall not rise for any defect in the precedent use And here is no Term therefore no end for that which hath not a begining hath no ending And if there be no estate then no Term if there be so then it is to be taken for the time of 24. years which is not as yet expired and then was there in the Lord Pawlet an estate descendable for 24 years which by the Attainder doth accrue unto the Queen And he cited the Case of 13 Eliz. Dyer 300. Feoffment to the use of himself for life and afterwards to the use of a woman which he entendeth to marry until the issue which he
Entry holden lawful But Error was brought upon it And also Calthrops case was cited to the same purpose 16 Eliz. Dyer 336. This estate limited to Ambrose doth refer to the estate limited to Muriel and Ann and not to the time for ever the first estate is to be respected as 23 Eliz. Dyer 371. He in the Remainder in Fee upon an estate for life deviseth it to his Wife yielding and paying during her natural life yearly 20 shillings and dieth living Tenant for life the Rent shall not begin until the Remainder falleth So as the general words refer to the beginning of the estate although the words imply that the Rent shall be paid presently And see also such construction 9 Eliz. 261. A Lease was made for thirty years and four years after the Lessor makes another Lease by these words Nos dictis 30 annis finitis dedisse concessisse c. Habend tenend a die confectionis praesentium termino praedict finito usque terminum c. And although prima facie the beginning of this Term seems incertain yet the Iustices did respect the former estate and so the Lessee hath the Interest of the Term from the making of the Deed but no estate until the first Term expire Then Ambrose before his age of 21 years levying a Fine the Fine shall not bind the Feoffee for it enures only by way of conclusion and so binds parties and privies but not a stranger And the party needs not to plead against this Fine quod partes to the Fine Nihil habuerunt for that appeareth upon their own shewing Wiat contrary The state of Ambr. accrues and rises when any of the said times come first full age return death for the words are And after the return of Ambrose from beyond the Seas and the age of 21 years or death c. This word or before death disjoyns all and makes the sentence in the Disjunctive and he cited a case lately judged in the Common Pleas A Lease was made to Trewpeny and his Wife for one hundred years if he and his Wife or any Child or Children betwixt them begotten should so long live the Wife died without Issue the Husband held the Land c. for the Disjunctive before Child made the sentence Disjunctive Gawdy Iustice That had been Law if no such word had been in the Case And Wiat said That although the return be incertain yet it is certain enough that he shall come to the age of 21 years or dye And also this is by way of use which needs not to depend upon any estate and if the Remainder shall vest presently upon his return then it would be doubtful what Remainder it is if it be a Remainder depending upon the estate for the life of Ann and Muriel or for years i.e. until Ambrose shall come of the age of 21 years But be it incertain yet the Fine is good for here is a Remainder in Ambrose and both are but particular estates and there is not any doubt but that one may convey by Fine or bar by Fine such contingent uses for which see the Statute of 32 H. 8. All Fines to be levied of any Lands intailed in any wise to him that levieth the Fine or to any his Ancestors in possession reversion c. which word use goes to contingent uses for at the time of the making of that Statute there was no other use Fenner Iustice remembred the Case adjudged M. 30 31 Eliz. betwixt Johnson and Bellamy 2 Len. 36. which ruled this Case Gawdy Iustice Here is a certainty upon which the Remainder doth depend i. e. the death of Ambrose but the Case had been the more doubtful if no certainty at all had been in the Case Atkinson contrary Here the Lord Vaux is Tenant for life the Remainder to George in tail now when the Lord Vaux levies a Fine this is a forfeiture and then the Entry of George is lawful It hath been objected on the other side that this Remainder was future and contingent and not vested therefore nothing passed to George by Ambrose The words are quousque Ambrose shall return This word quousque is a word of Limitation and not of Condition and then the Remainder may well rise when the Limitation hapneth It hath been said that this Remainder is contingent and then the Remainder which is to vest upon a contingency cannot be granted or forfeited before that the contingent hapneth And he cited the Case of 14 Eliz. 314. Dyer A Fine is levied to A. to the use of B. for life the Remainder to E. in Tail the Remainder to B. in fee. Proviso That if B. shall have Issue of his Body that then after such Issue and 500 l. paid to c. within six months after the birth of such issue the use of the said Lands after the death of the said B. and the said six months expired shall be to the said B. and the heirs of his body And it was holden that before the said contingent hapneth B. had not any estate tail for there it was incertain if the said contingent would happen but in our case the contingents or some of them will happen or run out by effluxion of time and that makes the Remainder certain in Ambrose And he also argued that the Limitations are several by reason of the Disjunctive and the last part of the sentence and that the said sentence is in the Disjunctive appeareth by the subsequent words which of the said days or times shall first happen And then the return of Ambrose for that first hapned vests the Remainder in him and therefore the Plaintiff ought to be barred Buckley contrary The estate of the Daughters doth depend upon a Copulative i.e. the return of Ambrose and his full age and both is but one Limitation it is clear that the first Limitation is upon a contingent and the remainder cannot vest until both are performed And as to that which hath been said that there is a certain Limitation i. e. the return of Ambrose 18 Eliz. the Case was Lands were given to Husband and Wife the Remainder to such of them as should survive the other for years the Husband makes a Lease for years and dieth it was holden that although the Limitation was upon a certain estate yet because it is not known in which of the parties the estate secondly limited shall begin the Lease is void So here it is not certainly appointed when the estate limited to Ambrose shall begin upon the return full age or death of Ambrose and he said that here are but two times of Limitation first return and full age second death return and full age determines the estate of the Daughters and also the death if it shall first happen and if these three times shall be construed in the Disjunctive 2 Len. 2â— the same would overthrow the estate of the Daughters which is an estate for years determinable upon the death of themselves or Ambrose
commanded a Court Baron to be holden there which was holden accordingly by the sufferance of the Executors and the said Executors were also present at which time the Executors in the presence of the said Lord said these words viz. We have nothing to do with this Manor Return of the Sheriff 4 Co. 67. And upon this Verdict two things were moved If because the Liberate was not returned the Execution was good And as to that divers Books were cited 21 H. 6. 8. 18 E. 3. 25. And it was said that there was a difference betwixt a Liberate and a Capias ad Satisfaciendum and a Fieri facias for these Writs are conditional Ita quod Habeas Corpus c. Ita quod habeas denarios hic in Curia 3 H. 7. 3. 16 H. 7. 14. But contrary in the Writ of Liberate Habere facias seisinam for in such Writs there is not such clause and therefore if such Writs be not returned the Execution done by virtue of them is good enough And see 11 H. 4. 121. If the Sheriff by force of an Elegit delivers to the party the moiety of the Land of the Defendant and doth not return the Writ if now the Plaintiff will bring an Action of Debt de Novo the Defendant may plead in Bar the Execution aforesaid although the Writ of Execution were not returned and yet the Execution is not upon the Record And see the case there put by Hankford And it is not like to the case of Partition made by the Sheriff the same ought to be returned because that after the return thereof a new and secondary Iudgment is to be given i. Quod partitio praedicta firma stabilis maneat in perpetuum firma stabilis in perpetuum teneatur see the Book of Entries 114. And Egerton Solicitor cited a case lately adjudged betwixt the Earl of Leicester and the Widow Tanfeild Earl of Leicester and Tanfeilds Case That such Execution without return was good enough Another matter was moved Admit that here be a good Execution if now the Executors being in possession of the said Manor by force of that Execution and permitting and suffering the Conusor to hold a Court there in the Manor-house and saying in his presence the words aforesaid if the same doth amount to a Surrender by the Executors to the said Conusor Surrender or not And Wray chief Iustice said That here upon this matter is not any Surrender for here the words are not addressed to the said Conusor who is capable of a Surrender nor to any person certain And it is not like to the case of 40 E. 3. 23 24. Chamberlains Assize where Tenant for life saith to him in the Reversion That his will is that he enter the same is a good Surrender for there is a person certain who can take it but contrary in this case for here it is but a general speech It was adjorned CCCLXXIX Baskervile and the Bishop of Herefords Case Pasch 28 Eliz. In the Common Pleas. Quare Impedit IN a Quare Impedit by Walter Baskervile against the Bishop of Hereford c. The Plaintiff counted That Sir Nicholas Arnold was seised of the Advowson as in gross and granted the same to the said Baskervile and others to the use of himself for life and afterwards to the use of Richard Arnold his Son in tail Proviso That if the said Nicholas die the said Richard being within age of twenty three years that then the Grantees and their Heirs shall be seised to them and their Heirs until the said Richard hath accomplished the said age Nicholas dieth Richard being of the age of fourteen years by force of which the Grantees were possessed of the said Advowson and afterwards the Church became void and so it belonged to them to present And Exception was taken to the Count because the Plaintiff had not averred the life of Richard upon whose life the Interest of the Plaintiffs doth depend Averment And Gawdy Serjeant likened it to the Case of the Parson which hath been adjudged That where the Lessee of a Parson brought an Ejectione firmae and it was found for him and in arrest of Iudgment exception was taken to the Declaration because that the life of the Parson was not averred and for that cause Iudgment was stayed Anderson chief Iustice Vpon the dying of Sir Nicholas Rich being but of the age of fourteen years an absolute Interest for nine years vests determinable upon the death of Richard or rather they are seised in fee determinable upon the coming of Richard to the age of twenty three years Rhodes and Windham contrary That here is an Interest in the Grantees determinable upon the death of Richard within the Term for if Richard dieth without issue within the Term the Remainder is limited over to a stranger And as to the Exception to the Count Dyer 304. â— 2 Cro. 622 637. 10 Co. 59. it was argued by Puckering Serjeant that the Count was good enough for although the life of Richard be not expresly averred yet such averment is strongly implied and so supplied For the Count is That dictus Nicholas obiit dicto Ric. being of the age of fourteen years non amplius by force of which the Plaintiff was possessed of the said Advowson quo quidem sic possessionato existente the Church became void and possessed he could not be if the said Richard had not been then alive and the same is as strong as an Averment See 10 E. 4. 18. In Trespass for breaking his Close the Defendant pleads That A. was seised and did enfeoff him to which the Plaintiff said That long time before A. had any thing B. was seised and leased to the said A. at will who enfeoffed the Defendant upon which B. did re-enter and leased to the Plaintiff at will by force of which he was possessed until the Defendant did the Trespass and the same was allowed to be a good Replication without averring the life of B. who leased to the Plaintiff at will for that is implied by the words i. Virtute cujus 1 Cro. 766. the Plaintiff was possessed until the Defendant did the Trespass And see also 10 H. 7. 12. in an Assize of Common The Plaintiff makes title that he was seised of a Messuage and of a Carve of Land to which he and all those whose estate c. have had Common appendant c. And doth not say that he is now seised of the Messuage But this Exception was disallowed by the Court for seisin shall be intended to continue until the contrary be shewed It was adjorned CCCLXXX Caries Case Pasch 28 Eliz. In the Exchequer IN an Information in the Exchequer by the Queen against Cary Tithes More Rep. 222. the Case was this A man grants situm Rectoriae cum decimis eidem pertinent Habend situm praedict cum suis pertinentiis for twenty years the first Grantee dieth within the Term.
But if they be collateral considerations which are not pursuant as if I in consideration that you are of my Counsel and shall ride with me to York promise to give to you 20 l. in this case all the considerations ought to be proved otherwise the Action cannot be maintained So in our case the considerations are collateral and therefore they ought to be proved and afterwards Iudgment was given for the Plaintiff CCCCVI Fooly and Prestons Case Hill. 28 and 29 Eliz. In the Common Pleas. IN an Action upon the Case the Plaintiff declared 1 Cro. 200. 2 Len. 105. That whereas John Gibbon was bound unto the Plaintiff in quodam scripto obligatorio sigillo suo sigillat and coram c. recognito in forma Statuti Stapul The Defendant in consideration that the Plaintiff would deliver to him the said Writing to read over promised to deliver the same again to the Plaintiff within six days after or to pay to him 1000 l. in lieu thereof upon which promise the Plaintiff did deliver to the Defendant the said Writing but the Defendant had not nor would not deliver it back to the Plaintiff to the great delay of the Execution thereof and the Defendant did demur in Law upon the Declaration It was objected that here is no sufficient consideration appearing in the Declaration upon which a promise might be grounded but it was the opinion of the whole Court that the consideration set forth in the Declaration was good and sufficient and by Anderson it is usual and frequent in the King Bench If I deliver to you an Obligation to rebail unto me I shall have an Action upon the Case without an express Assumpsit and afterwards Iudgment was given for the Plaintiff CCCCVII Wallpool and Kings Case Hill. 28 and 29 Eliz. In the Common Pleas. WIlliam Wallpool was bound to King by Recognizance in the sum of 400 l. and King also was bound to Wallpool in a Bond of 100 l. Wallpool according to the Custom of London Attachment in London affirmed a Plaint of Debt in the Gulldhall London against the said King upon the said Bond of 100 l. and attached the debt due by himself to Wallpool in his own hands and now King sued Execution against the said Wallpool upon the said Recognizance and Wallpool upon the matter of Attachment brought an Audita querela and prayed allowance of it and by Gawdy Serjeant such a Writ was allowed in such case 26 Eliz. Anderson at the first doubted of it but at last the Court received the said Writ de bene esse and granted a Supersedeas in stay of the Execution and a Scire facias against King but ea lege that Wallpool should find good and sufficient Sureties that he would sue with effect and if the matter be found against him that he pay the Execution CCCCVIII Hill. 28 and 29 Eliz. In the Common Pleas. A Copy-holder with license of the Lord leased for years Copyholder Surrender Hob. 177. 1 Roll. 294 3 Len. 197. and afterwards surrendred the Reversion with the Rent to the use of a stranger who is admitted accordingly It was moved if here need any Attornment either to settle the Reversion or to create a Privity and Rhodes and Windham Iustices were of opinion that the surrender and admittance are in the nature of an Inrolment and so amount to an Attornment or at least do supply the want of it CCCCIX. Ruddall and Millers Case Mich. 28 Eliz. In the Common Pleas. Devise IN Trespass the Case was this William Ruddall Serjeant at Law 18 H. 8. made a Feoffment in Fee to divers persons to the use of himself and his Heirs and 21 H. 8. declared his Will by which he devised his Lands to Charles his younger Son and to the Heirs Males of his body the Remainder to John his eldest Son in Fee upon condition That if Charles or any of his issue should discontinue or alien but only for to make a Ioynture for their wives for the term of their lives that then c. and died The Statute of 27 H. 8. came Charles made a Lease to the Defendants for their lives according to the Statute of 33 H. 8. And levied a Fine with Proclamation Sur Conusans de droit come ceo c. to the use of himself and his wife and the heirs Males of their two bodies begotten the Remainder to himself and the heirs Males of his body the Remainder to the right heirs of the Devisor John the eldest Son entred for the Condition broken upon the Defendants who re-entred upon which Re-entry the Action was brought Gawdy Fleetwood and Shuttleworth Serjeants for the Plaintiffs This Condition to restrain unlawful discontinuance is good Conditions as a Condition to restrain Wast or Felony See 10 H. 7. 11. 13 H. 7. 23. And before the Statute of Quia Emptores terratum If A. had enfeoffed B. upon Condition That B. nor his heirs should alien the same was a good Condition by Fleetwood which was granted per Curiam And this Condition was annexed to good purpose or the Serjeant well knew that Cestuy que use might have levied a Fine or suffered a Recovery by the Statutes of 1 R. 3. 4 H. 7. And this Condition annexed or tied to the use by the Will is now knit to the possession which is transferred to the use by the said Statute Although it may be objected that the Condition was annexed to the use and now the use is extinct in the possession and by consequence the Condition annexed unto it as where a Seignory is granted upon Condition and afterwards the Tenancy escheats now the Seignory is extinct and so the Condition annexed to it But as to that it may be answered That our Case cannot be resembled to the Cases at Common Law but rests upon the Statute of 27 H. 8. scil Cestuy que use shall stand and be seised deemed and adjudged in lawful seisin estate and possession of and in such Lands to all intents constructions and purposes in Law of an in such like estates as he had in the use and that the estate right title and possession that was in the Feoffee shall be clearly deemed and adjudged to be in Cestuy que use after such quality manner form and condition as he had in the use And therefore in the common assurance by bargain and sale by Deed enrolled if such assurance be made upon Condition As in case of Mortgage the possession is not raised by the Bargainee but by the Bargain an use is raised to the Bargainee and the possession executed to it by the Statute and the Condition which was annexed to the use only is now conjoyned to the possession and so it hath been adjudged So if the Feoffees to use before the Statute had made a Lease for life the Lessee commits Wast the Statute comes now Cestuy que use which was shall have an Action to Wast as it was ajudged in Iustice
Serjeant this case hath been adjudged 16 Eliz. A Lease to three Habendum to the use of the first for life and after to the use of the second for life and after to the use of the third for life the same is good Clench Iustice this proviso follows the Habendum and is a sentence to explain the sentence Wray Shute it is another sentence although it immediately follows the Habendum Clench if the words had been provided that although it be limited ut supra in the Habendum scil the first named shall have the Lands to himself for life c. it had been good by way of Remainder Wray Our case at Bar is not that any person shall take the Remainder but that any of them shall not take the profits during the life of the other Tanfield took exception to the verdict because the life of Pain is not found in the verdict Coke this is a verdict and no pleading and the opinion of the Court was that the verdict was good notwithstanding the said Exception and afterwards Iudgment was given for the Plaintiff CCCCXLVII Hudson and Leighs Case Mich. 30 31. Eliz. In the Kings Bench. Appeal of Maheim 4 Co. 43. RObert Hudson brought an appeal of Mayhem against Robert Leigh for maiming his right hand and for cutting of his veins and sinews which by that means are become dry so as thereby he hath lost the use of his fingers To which the Defendant pleaded that heretofore the Plaintiff had brought against him an Action of Assault and Battery and wounding and therein had Iudgment to recover and Execution was sued forth by Scire facias and satisfaction acknowledged upon Record Damages of 200 Marks assisted by the Iury for the damages and 11 l. 10 s. de incremento by the Court with averment of all identities Cooper Serjeant the same is a good Bar and although that an Appeal and an Action of Trespass are diverse Actions in nature and in many circumstances yet as to the recovery of Damages the one shall bind the other See 38 E. 3. 17. a good case In Trespass for breaking of his Close and Battery the Defendant pleaded that before that the Plaintiff by Bill in the Marshalsey hath recovered his Damages for the same Trespass c. and vouched the Record and the Record was sent the which was varying from the Record pleaded for the Record vouched was only of Battery without any thing of breaking of the Close and also the Battery is taxed at another day c. and with averment yet as to the Battery it was holden good enough with averment and as to the breaking of the Close the Plaintiff had Iudgment See 41 E. 3. brev 548. 12 R. 2. Coronae 110. and the Case betwixt Rider Plaintiff and Cobham Defendant Pasch 19 Eliz. Rot. 74. it was clearly holden and adjudged that after a Recovery in Trespass an Appeal of Maheim doth not lie and the Book which deceives the Plaintiff is 22 E. 3. 82. where it is said by Thorp That notwithstanding Recovery in Appeal of Maheim yet he may after recover in Trespass but Non dicite contra Popham contrary the Plea in Bar is not good for the Averment is that the stroke and the wounding supposed in the Writ of Trespass and in his Appeal of Maheim are all one but it is not averred that any damages were given for the Maheim or that the Maheim was given in Evidence for it might be that there was not any Maheim when the Trespass was brought but that after by the drying of the wound it became a Maheim and then the Action did rise as if a man upon a Contract promiseth to pay me 10 l. at Michaelmas and other 10 l. at Christmas if he doth not pay the 10 l. at Michaelmas I may have an Action upon the promise for the not payment of that 10 l. and afterwards I may have another Action and recover damages for the not payment of the 10 l. at Christmas but if I do not begin any Action before Christmas I cannot recover damages but once for the whole promise and damages shall be given in Evidence and if I be disseised I may recover damages for the first Entry and notwithstanding that I shall have an Assise and if I do reenter I shall have Trespass and recover damages for the mean profits Ante 302. and the damages recovered for the first Entry shall be recouped and the Book cited before Fitz. Coronae 110 doth not make for the Defendant but rather for the Plaintiff for there it is averred that the Maheim was given in Evidence in the Action of Trespass which it is not in our Case Egerton Solicitor we have shewed That succisio venarum in this appeal specified is eadem succisio vulneratio mentioned in the Trespass Coke Although the identity of the wounding and cutting of the veins are averred yet it is not averred that the damages recovered in the Trespass were given for this Maheim Wray chief Iustice The Iurors are to take consideration of the wound in an action of Trespass and to give damages according to the hurt and we ought to think that they have done accordingly and if they have not so done the party may pray that the Court by inspection would adjudge upon it and so increase the damages But now when the Iury hath given great damages scil 200 Marks with which the party hath been contented it should be hard to give the Plaintiff another Action and if there be any such special matter that it was not become a Maheim at the time of the Action of Trespass brought but it is become a Maheim of later time by drying the Plaintiff ought to have shewed the same to the Court and so have helped himself for otherwise it shall not be so intended but that the averment made by the Defendant is good enough to oust the Plaintiff of this Action and the Iudgment cited 19 Eliz. before was given by me after I was constituted chief Iustice and this Bar as I conceive was drawn out of the pleading in 19 Eliz. and afterwards Iudgment was given against the Plaintiff CCCCXLVIII Crosman and Reads Case Mich. 30 31 Eliz. In the Kings Bench. Intermarriage 1 Cro. 114. THe Case was that I.S. made his wife his Excutrix and dyed I. D. being then endebted to the Testator in sixty pounds upon a simple Contract the Wife Executrix took to Husband the said I.D. I.D. made his Executor and dyed a Creditor of I.S. brought an Action of Debt against the Wife Executrix of I.S. and upon the pleading the matter in question was Debt by Executors If by the entermarriage of the wife with the Debtor of the Testator the same was a Devastavit or not And if the said Debt of sixty pounds due by I.D. should be Assets in her hands And per Curiam It is no Devastavit nor Assets as is supposed For the woman may have an