resolved by all the Iustices as he said that it shall passe and he said that himself was of this opinion also And to say that by grant of Land at Common Law the use had been raised out of the possessions of the Land which the Grantor then had and by it passe to the Bargainee and that it shall not be raised and passed to another by grant of Land in consideration of marriage which is a more valuable consideration then money is absurd and against all reason And for the solemnity Vses in such cases in respect of marriage were the cause that they alwaies were left as they were at Common Law and not restrained as the case of bargain and sale is which by Common intendment may be made more easily and secretly then that which is done in consideration of marriage which is alwaies a thing publike and notorious but it is not reasonable that every slight or accidentall speech shall make an alteration of any Vse As if a man ask of any one what he will give or leave to any of his Sons or Daughters for their advancement in marriage or otherwise for their advancement this shall be but as a bare speech or communication which shall not alter or change any Vse But where there is upon the Speech a conclusion of a Marriage between the friends of the parties themselves and that in consideration therof they shall have such Lands and for such an Estate there the Vse shall be raised by it and shall passe accordingly to the parties according to the conclusion which Fennor granted But by Popham If it may be taken upon the words spoken that the purpose was to have the Estate passe by way of making of an Estate as by way of Feoffment c. then notwithstanding the consideration expressed the use shall not change nor no Estate by it but at will untill the Livery made therupon And therfore if a man make a Deed of Feoffment with expresse consideration of marriage although the Deed hath words in it of Dedi Concessi with a Letter of Attorney to make Livery therupon there untill Livery made nothing passe but at will because that by the Warrant of Attorney it appeareth the full intent of the parties was that it shall passe by way of Feoffment and not otherwise if it be of Land in possession And if it be of Land in Lease not untill Attornment of Tenants which was granted by all the Iustices But if a man in consideration of money makes a Deed of Gift Grant Bargain and Sale of his Lands to another and his Heirs by Deed indented with a Letter of Attorny to make Livery if Livery be therupon made before Inrolement there it hath been adjudged to passe by the Livery and not by the Inrolement But by Popham where Land is to passe in possession by Estate executed two things are requisite The one the grant of the said Land the other the Livery to be made therupon for by the bare Grant without Livery it doth not passe as by way of making of an Estate And this is the cause that such solemnity hath been used in Liveries to wit if it were of a Messuage to have the people out of it and then to give Seisin to the party by the Ring of the door of the House and of Land by a Turff and a Twig and the like which may be notorious Yet I agree it shall be a good Livery to say to the party Here is the Land enter into it and take it to you and your Heirs for ever or for life or in tail as the case is And albeit Livery by the View may be made in such manner yet by the sealing of the Deed of Grant upon the Land or by grant of it upon the Land without Livery nothing passe but at will But if therupon one party saith to the other after the Grant or upon it Here is the Land enter upon it and take it according to the Grant this is a good Livery But he ought to say this or somthing which amounts to so much or otherwise it shall not passe by the bare Grant of the Land although it be made upon the Land Clench said That when Thomas said to Eustace Stand forth here I do give to thee and thine Heirs these Lands this amounts to a Grant and a Livery also and by the words of the Reservation of the Estate to himself and his wife for their lives in this the Law shall make an use in the said Thomas and his wife for their lives so that by such means it shal enure as if he had reserved the use therof to him and his wife and so it shall enure to them as it may by the Law according to his intent without doing prejudice to the Estate passed to the said Eustace And afterwards Term Mich. 36 37 Eliz. the Case was again disputed amongst the Iustices and then Popham said That the Case of Baâ—gains and Sales of Lands in Cities as London c. as appeareth in Dyer 6. Eliz. are as they were at Common Law To which all the Iustices agreed and therfore shall passe by Bargain by parole without writing And by Bayntons Case in 6 7 Eliz. it is admitted of every side that an Vse was raised out of a Possession at Common Law by Bargain and Sale by parole and otherwise to what purpose was the Statute of Inrolements and by the same case it is also admitted now to passe by parole upon a full agreement by words in consideration of Marriage or the continuance of Name or Blood For it is agreed there that the consideration of nature is the most forceable consideration which can be and agreed also that a bare Covenant by writing without consideration will not change an Vse therfore the force therof is in the consideration of which the Law hath great respect And therfore the Son and Heir apparant ex assensu patris onely may at the door of the Church endow his wife of his Fathers Land which he hath in Fee and this is good by Littleton although the Son hath nothing in it wherby an Estate passe to the wife which is more then an Vse Nature is of so strong consideration in the Law And therupon after advice Iudgment was given for the Plaintiff the Roll of this appeareth in Banco Regis 1 Hill 35. Eliz. Rot. 355. And upon this Iudgment a Writ of Error was brought and the Iudgment aforesaid reversed in the point of Iudgment in the Exchequer by the Statute of 27 Eliz. Kettle versus Mason and Esterby 6. IN a second deliverance between Joh. Kettle Plaintiff and George Mason Vide this case Coke lib. 1. 146 c. and Francis Esterby Avowants the case appeared to be this Thomas May was seised of the Mannor of Sawters and Hawlin in the County of Kent in his Demesne as of Fee and being so therof seised enfeoffed Thomas Scot and John Fremling and their Heirs
Grantor at his Election provided then afterwards that he shall charge his person is not good Causa patet And all agreed that upon a Rent granted upon equality of partition or for allowance of Dower or for recompence of a Title an Annuity doth not lye because it is in satisfaction of a thing reall and therfore shall not fall to a matter personall but alwaies remains of the same nature as the thing for which it is given And afterwards the same Term Iudgment was given in the Common Bench that the Plaintiff shall recover which is entred c. And in the same case Clark vouched that it was reported by Benloes in his Book of Reports where a Rent was granted out of a Rectory by the Parson who after wards resigned the Parsonage that it was agreed in the Common Pleas in his time that yet a Writ of Annuity lies against the Grantor upon the same Grant to which all who agreed on this part agreed that it was Law Butler versus Baker and Delves 3. IN Trespasse brought by John Butler against Thomas Baker and Thomas See this case in Cookes 3. Report foâ— 25 Delves for breaking his Close parcell of the Mannor of Thoby in the County of Essex upon a speciall Verdict the Case was thus William Barners the Father was seised in his Demesne as of fee of the Mannor of Hinton in the County of Glocester holden of the King by Knights-service in Capite and being so seised after the Marriage had between William his Son and heir apparant and Elizabeth the Daughter of Thomas Eden Esquire in consideration of the same Marriage and for the Joynture of the said Elizabeth assured the said Mannor of Hinton to the use of the said William the Son and Elizabeth his Wife and the Heirs of their two bodies lawfully begotten and died by whose death the Reversion also of the said Mannors descended to the said William the Son whâ—rby he was seised therof accordingly and being so seised and also seised of the Mannor of Thoby in his Demesne as of Fee holden also of the Queen by Knights-servivice in chief and of certain Lands in Fobbing in the said County of Essex which Land in Fobbing with the Mannor of Hinton were the full third part of the value of all the Land of the said William the Son and he made his Will in writing wherby he devised to his said Wife Elizabeth his said Mannor of Thoby for her life in satisfaction of all her Joynture and Dower upon condition that if she take to any other Joynture that then the Devise to her shall be void and after her decease he devised that the said Mannor shall remain to Thomas his Son and the Heirs Males of his body and for default of such Issue the remainder to Thomas brother of the said William for his life the remainder to hir first second and third Son and to the Heirs Males of their bodies and so to every other Issue Male of his body and for default of such Issue the remainder to Leonard Barners his brother and to the Heirs Males of his body the remainder to Richard Barners and the Heirs Males of his body the remainder to the right Heirs of the Devisor William the Son dies having Issue Thomas his Son and Grisell his Daughter Wife to the said Thomas Baker the said Elizabeth by Paroll in pais moved her Estate in the said Mannor of Hinton and after this entred into the said Mannor of Thoby after which the said Elizabeth died and Thomas the Son and Thomas the Uncle died also without Issue Male after which the said Leonard took one Mary to Wife and died having Issue Anthony Barners after which the said Mary took the said John Butler to Husband and after this the said Anthony assigned to the said Mary the said Mannors of Thoby in allowance for all her Dower wherby the said John Butler as in the right of his Wife entred into the said Mannor of Thoby wherby the said Thomas Delves by the commandment of the said Baker entred into the said Close of which the Action is brought as in right oâ— the said Grisell And whether this entry were lawful or not was the question which was argued in the Court in the time of the late Lord Wray and he and Gawdy held strongly that the entry of the said Delves was lawfull but Clench and Fennor held alwaies the contrary wherupon it was adjourned into the Exchequer Chamber But they all agreed that the Waiver made by the said Elizabeth by parole in pais was a sufficient Waiver of her Estate in Hinton and the rather because of the Statute of 27 H 8. cap. 10. the words of which are That if the Joynture be made after the Marriage that then the Wife surviving her Husband may after his death refuse to take such Joynture And now it was moved by Tanfield that Iudgment ought to be given for the Plaintiff for by the Waiver of the Wife the Inheritance of Hinton is now to be said wholly in the Husband ab initio and therfore that with Fobbing being a whole third part of the whole Land which now is to be said to be left to discend to the Heir of the Devisor as to Thoby is good for the whole and if so then no part therof descends to Grisell and therfore the entry of the said Delves in her right is wrongfull Coke Attorney-general to the contrary for he said That it is to no purpose to consider what Estate the Devisor had in the Mannor of Hinton by reason of this Waiver made by his Wife Ex post facto after his death But we are to see what Estate the Devisor had in it in the view of the Law at the time of his death before the Waiver and according to it the Law shall adjudge that he had power to make his Devise by means of the Statute and at this time none can adjudge another Estate in him but joyntly with his wife of which Estate he had no power to make any disposition or to devise it or to leave it for the third part to his Heir for the Statute which is an explanatory Law in this point saies that he ought to be sole seised in such a case And further the Statute of 34 H. 8. at the end is that the Land which descends immediatly from the Devisor shall be taken for the third part and this Land did not descend immediatly for it survived to the Wife untill she waived it and therfore this Land is not to be taken for any third part which the Statute purposed to have been left to the Heir and therfore so much shall be taken from Thoby as with Fobbin shall be a third part to descend wherbâ— Grisell the Heir hath good right yet to part of Thoby and therfore the entry of the said Delves in her right by commandment of her husband not wronfull Periam chief Baron Clench Clark Walmsley and Fennor That now
the Assise in manner and form as the Writ supposeth And further that the said West therof disseised the said Mounson namely of the Tenements in the will of one Mounson And did not find either the words of the Will nor the Will it self what it was c. And the Iustices of Assise upon this Verdict upon advice with the other Iustices gave Iudgment that the Plaintiff shall recover c. upon which a Writ of Error was brought in the Kings Bench where it was moved that the Iudgment was erroneous First because the Iury have not found that the Defendant was Tenant of the Free-hold agreeing with the form of the Plea for the Writ of Assise doth not suppose him to be Tenant of the Free-hold and therfore the Verdict in this point not fully found The second Error is that the Seisin of the Plaintiff is not required of according to the charge given to them as well as the Disseisen for the charge was that they should enquire of the Seisen of the Plaintiff c. But to both these the Court answered that the Verdict is well enough notwithstanding these exceptions for every Assise brought supposeth that there is a Disseisor and a Tenant named in it then this Assise being brought against a sole person supposeth him to be a Disseisor and Tenant also and therfore the Verdict saying that he was Tenant as the Writ supposeth is now as strong in this case as if they had found that he was Tenant of the Free-hold for the Tenant of the Free-hold ought to be named in the Writ But if the Assise had been brought against two or more such a Verdict had not been good for it sufficeth if any of them be Tenant of the Freehold and then the Writ doth not suppose one to be Tenant more then another but supposeth one Tenant to be named in the Writ And therfore in such a case the finding ought to be speciall to wit that such a one is Tenant of the Free-hold or that there is a Tenant of the Free-hold named in the Writ But where one only is named in the Writ to be Disseisor and Tenant it is sufficient to find as here for by this it is certainly found that he is Tenant of the Free-hold And for the other point although it be a good direction for the Iudges to the Iury wherby they may the better perceive that there ought to be a Seisin in him or otherwise there cannot be a Disseisen by the other yet in Deed he cannot be a Disseised who was not then seised But the Assise having found the Disseisen the Seisen in Law is found included in the Disseisen But for the point moved that the Verdict was not perfect in as much as they found the Disseisen with a Nisi it seemed to Gawdy that the Iudgment upon this Verdict was erronious as where a Verdict in another Action is imperfect a Venire facias de novo shall be awarded to try the Issue again And if Iudgment be given upon such a Verdict it is error so here the Verdict in this point being incertain there ought to have been a Certificate of Assise to have this better opened But the three other Iustices held as the case is that the Verdict in this point is certain enough for that which cometh before the Nisi as it is placed is meerly nugator as in the case of the Lord Stafford against Sir Rowland Heyward the Iury found Non assumpsit but if such Witnesses say true as they believe they did Assumpsit c. it was but a meer nugation But it seemed to Popham that if the Verdict had been if the words of the Will do not passe the Land then that he disseised and if they passe then that he did not disseise there if the words of the Will be not found the Verdict had been all imperfect but here the Verdict is full and perfect before the Nisi c. and therfore the Iudgment was affirmed Holme versus Gee 8. A Formedon in Descender was brought by Ralph Holme Demandant against Henry Gee and Elizabeth his Wife Tenants and the Case wâ—s thus Ralph Langley and others gave two Messuages and a Garden with the Appurtenances in Manchester to Ralph Holme the great Grandfather of the Demandant and to the Heirs of his body begotten after which the same great Grand-father by Deed indented dated 20. September 14 H. 7. enfeoffed Iohn Gee of one of the said Messuages and of the said Garden rendring yearly to the said great Grand-father and his Heirs 13 s. 4 d. a year at the Feasts of S. Michael and the Annunciation by equal portions after which the said Iohn Gee died seised of the said Messuages and Garden and it descended to Henry Gee his Son and Heir after which the said great Grand-father by his Indenture bearing date 6. Martii 12 H. 8. enfeoffed the said Henry Gee of the other Messuages rendring also to him and his Heirs yearly 13 s. 4 d. at the said Feast aforesaid by equal portions after which Holme the great Grand-father died Stephen Holme being his Son and next Heir who was seised of the Rents aforesaid and afterwards also died seised Robert Holme being his Son and Heir after which the said Henry Gee died seised of the said two Messuages and Garden and they descended to Eliz. his Daughter and Heir who took to Husband one Richard Shalcroft and had Issue the said Elizabeth wife of the said Henry Gee Tenant in the Formedon after which the said Richard Shalcroft and his wife died after which and before the marriage had between the said Henry Gee and Elizabeth now Tenants in the Formedon the said Elizabeth enfeoffed one Richard Greensearch of the said Messuages and Garden after which to wit at the Feast of the Annunciation of our Lady 3 Eliz. the said Henry Gee husband to the said Elizabeth paid 13 s. 4 d. for the said Rent reserved as is aforesaid to the said Robert Holme after which to wit on Munday next after the Assumption of our Lady at Lancaster before the Justices there a Fine was levied with Proclamations according to the Statute between Thomas Aynsworth and Thomas Holden then being seised of the Tenements aforesaid Complainants and the said Henry Gee and Eliz. his wife Deforceants of the Tenements aforesaid wherby the Conusance was made to the said Thomas and Thomas who rendred them to the said Henry Gee and Eliz. his wife and to the Heirs of their bodies the Remainder to the right Heirs of the said Henry the five years past after the Proclamations in the life of the said Robert Holme after which the said Robert died and Ralph his Son and Heir brought the Formedon upon the Gift first mentioned and the Tenants plead the said Fine with Proclamations in Bar and the Demandant replyed shewing the severall discontinuances made by the great Grand-father as aforesaid and the acceptance of the said Rent by the said Robert by the hands of
where the Plaintiff shews a speciall Title under the Possession of the Defendant As for example In trespasse for breaking of his Close the Defendant pleads that J. G. was seised of it in his Demesne as of fee and enfeoffed J. K. by virtue of which he was seised accordingly and so being seised enfeoffed the Defendant of it by which he was seised untill the Plaintiff claiming by calour of a Deed of Feoffment made by the sayd J. G. long before that he enfeoffed J. K. where nothing passed by the sayd Feoffment entred upon which the Defendant did re-enter here the Plaintiff may well traverse the Feoffment supposed to be made by the sayd J. G. to the sayd I. K. without making Title because that this Feoffment only destroies the Estate at will made by the sayd I. G. to the Plaintiff which being destroyed he cannot enter upon the Defendant albeit the Defendant cometh to the Land by Disseisin and not by the Feoffment of the sayd I. K. for the first Possession of the Defendant is a good Title in Trespasse against the Plaintiff if he cannot shew or maintain a Title Paramounâ— But the Feoffment of the sayd I. G. being traversed and found for him he hath by the acknowledgment of the Defendant himself a good Title against him by reason of the first Estate at will acknowledged by the Defendant to be to the Plaintiff and now not defeated But in the same case he cannot traverse the Feoffment supposed to be made to the sayd I. K. to the Defendant without an especiall Title made to himself for albeit that I. K. did not enfeoff the Defendant but that the Defendant disseised him or that he cometh to the Land by another means yet he hath a good Title against the Plaintiff by his first Possession not destroyed by any Title Paramount by any matter which appeareth by the Record upon which the Court is to adjudge and with this accord the opinion of 31 4. 1. That the materiall matter of the Bar ought alwaies to be traversed or other wise that which upon the pleading is become to be materiall and that which the Plaintiff traversed here to wit the Lease made by Wright to the Defendant is the materiall point of the Bar which destroyeth the Title Paramount acknowledged to the Plaintiff by the colour given in the Bar which is good without another Title made So note well the diversity where in pleading in Trespasse the first Possession is acknowledged in the Plaintiff by the Bar and where it appeareth by the pleading to be in the Defendant and where and by what matter the first Possession acknowledged in the Plaintiff by the Bar is avoided by the same Bar And upon this Iudgment was given for the Plaintiff as appeareth in 34. and 35. Eliz. Rol. Earl of Bedford versus Eliz. Anne Russell Mich. 34. and 35. Eliz. 2. IN tho Court of Wards the Case was thus between the now Earl of Bedford In the Court of Wards and Elizabeth and Anne the Daughters and Heirs of John late Lord Russell which was put ten times to all the Iustices to be resolved Francis late Earl of Bedford was seised of the Mannor of Baruake Chaldon c. in Commitatu Dorset in his Demesne as of see and so seised the fourth year of Queen Eliz. of it enfeoffed the Lord S. John of Bletsoe and others in see to the use of himself for forty years from the date of the sayd Deed and after to the use of the sayd John then his second Son and the Heirs Males of his body and for default of such Issue then to the use of the right Heirs of the sayd Earl the Feoffor for ever Afterwards Edward Lord Russell Son and Heir apparant to the sayd Earl dyed without Issue and after the sayd John Lord Russell dyed without Issue Male having Issue the sayd two Daughters afterwards to wit 27 Eliz. the sayd Francis Earl of Bedford by Indenture made between him and the Earl of Cumberland and others in consideration of the advancement of the Heirs Males of the body of the sayd Earl which by course of descent should or might succeed the sayd Earl in the name and dignity of the Earldome of Bedford and for the better establishment of his Lordships Mannors and Hereditaments in the name and blood of the sayd Earl covenanted and grantes with the sayd Covenantees that he and his Heirs hereafter shall stand seised of the sayd Mannors amongst others to the use of himself for life without impeachment of Waste and after his decease to the use of Francis the Lord Russell and the Heirs Males of his body for default of such Issue to the use of Sir William Russell Knight his youngest Son and the Heirs Males of his body with diverse Remainders over after which the sayd Francis Lord Russell tyed having Issue Edward the now Earl of Bedford and after this the sayd Francâ—s late Earl of Bedford dyed also and after the Daughters of the sayd John Lord Russell or the now Earl of Bedford shall have these Mannors of Barunke c. was the question and upon this it was argued by Cook Sollinton and others for the Daughters that an use at Common-law was but a confidence put in some to the benefit and behoof of others and that Conscience was to give remedy but for those for whose availe the confidence was and that was in this Case for the sayd Daughters which were the right Heirs to the sayd Francis late Earl of Bedford upon the first conveyance made 41 Eliz. for the confidence that he put in the Feoffees as to the profits that he himself was to have was but for the forty years and how can any other say that he shall have any other Estate when he himself saith that he will have it but for forty years and therefore in this case his right Heir shall take as a Purchasor by the intent of the Feoffor which hath power to make a disposition of the use at his pleasure and his pleasure as appeareth was to have it so and it is not as if the use had been limitted to be to himself for life with such a Remainder over in which Case the use of the Fee by the operation of Law ought to execuse in himself for the Free-hold which was in him before As where Land is given to one for life the Remainder to his right Heirs he hath a Fee-simple executed but here he shall have but an Estate for forty years precedent and that the Fee-simple cannot be executed by such a limitation made to the right Heirs but in case of an Estate for years only precedent such a limitation to his right Heirs afterwards is not good but in case of an use it is otherwise for it may remain to be executed to be an use in Esse where the right Heir shall be and therefore not to be resembled to an Estate made in Possession And an Vse is alwaies to be
guided according to that which may be collected to be the purpose and intent of the parties And therefore if a man make an Estate of his Land without limitation of any Vse or confidence the Law shall say that it is to his own use but if it be upon confidence then it shall be to the Vse of the party to whom it is made or according to the confidence which shâ—ll be absolute or according to that which is limitted which may alter that which otherwise shall be taken upon the generall confidence as 30 H. 6. Fitz. Devise If a man devise Lands to another in Fee he hath the use and Title of it but if it be limitted to his use for his life only the use of the Fee shall be to the Heir of the Devisor for by the limitation his intent shall be taken to be otherwise then it should be taken if this limitation had not been and in as much as in this case the Earl reserves to himself but the use for years it is evident that his intent never was to have the Fee to surrender this Term which perhaps he intended to be for the benefit of his will which shall be defeated contrary to his purpose if the Fee shall be also in him by the death of the sayd Iohn without Issue Male and therefore the sayd Daughters ought to have the Land And on the other part it was argued by Glanvil Serjeant and Egerton the Attorney Generall that this limitation made to the right Heirs is void in the same manner as if a man give Lands to another for life the Remainder to the right Heirs of the Feoffor in this case the Heir shall take by descent as a Reversion remaining to the Feoffor and not as a Remainder devested out of him for the ancient right priviledge the Estate which he may take and therfore he shall take it by descent and not by purchase for the name of right Heir is not a name of purchase betwixt the Ancestor and his heir because that doth instance that he happeneth to be heir he takes it by descent and then it comes too late to take by purchase And another reason that the Daughters shall not have it is because that when Sir Iohn Russell dies without Issue Male which Estate might have preserved the Remainder if it shall be a Remainder there was not any right heir of the sayd Francis Earl of Bedford to take this Remainder because that the sayd Earl survived him And therefore it is to bee resembled to this Case Land is given in Tail the Remainder to the right Heirs of I. G. the Donee dyes without Issue in the life of I. G. in this case albeit I. G. dyes afterwards having an heir yet this heir shall never have the Loud because he was not heir in Esse to take it when the Remainder fell and for the mean Estate for years this cannot preserve a Remainder no more then when Land is given for years the Remainder to the right heirs of I. G. this Remainder can never be good if I. G. be then living because such a Remainder cannot depend but upon a Free-hold precedent at least and therefore the Inheritance here shall go to the now Earl of Bedford by the second assurance And upon consideration of the Case and severall Confirmes had upon this amongst the Iudges and Barens it was at last resolved by all but Baron Clarke that the Daughters shall not have the Mannors in the County of Doâ—set but the now Earl of Bedford and principally upon this reason because there was nor right Heir to take as Purchasor where the mean Estate Taile was determined which was by the Lord Iohn without Issue Male for they agreed that the Remainder to the right Heirs if it be a Remainder cannot be preserved by the mean Estate for years for it ought to be a Free-hold at least which ought to preserve such a Remainder untill there be one to take it by name of Purchasor as right Heir And at this day they did not think there was any diversity between the Case of a Remainder in Possession limitted to the right heir of one and of a Remainder in use so limited over to another Mich. 34. and 35. Eliz In the Kings Bench. 3. IN Ejectione firmae upon speciall verdict the case was thus A man possessed of a Term of years in right of his wife made a Lease for years of the same Land to begin after his death which was the Lessor and afterwards he dyed and his wife survived him and the question was whether the wife shall have the Land after the death of the husband or the Lessee for if the husband had devised the same Land to an estranger yet the Wife shall have it and not the Devisee as it happened in the Case of Matthew Smith who made first such a Devise of a Term of his Wife and yet the Wife had it because that by the death of the husband before which the Devise did not take effect the wife had it in her first Right not altered in the life of her Husband but it was agreed in this case by all the Court that the Lessee shall have it during his Term for as the husband during his life might contract for the Land for the whole term which the wife had in it so might he do for any part of the term at his pleasure for if he may devise the Land for one and twenty years to begin presently he also may make it to begin at any time to come after his Death if the term of the Wife be not expired but for the Remainder of the term of the husband made no disposition during his life the Wife shall have it which by Popham this Case happened upon a specialll Verdict in the County of Somerset about 20 Eli. Where he and Sergeant Baber were Practisers in the Circuit there to wit the Lands were demised to husband and wife for their lives the Remainder to the Survivor of them for years the Husband granted over this term of years and dyed and the question was whether the Wife shall have the term of years or the Grantee and adjudged that the Wife shall have it and it was upon this reason because there was nothing in the one or the other to grant over untill there was a Survivor And the same Law had been if the Wife bad dyed after the Grant and the Husband had survived yet he shall have the term against his own Grant as if a Lease were made for Life the Remainder for years to him which first cometh to Pauls if A. grant this Term for years to another and afterwards A. is the first which commeth to Pauls yet the Grantee shall not have this Term because it was not in A. by any means neither in Interest nor otherwise untill he came to Pauls As if a man make a Lease for life the Remainder to the Right heirs of J. S. J. S. hath
albeit he died before the day of payment because this was a summ in grosse limited to be paid to the said Thomas at a certain time But if it shall be taken for a Condition in William he thinks cleerly that the said William ought to have given notice to the Executrix of the said Thomas before he had made his first entry into the Land of the Ten. when he intended to make his entry so that the Executrix might be there at the same time to have made demand of the money which ought to have been done or otherwise there cannot be a refusall in the said William and without his refusall or other default in him the Condition cannot be broken if it had such a relation as to make the payment as George ought to do it And so the Executor of Thomas cannot have notice when William will make his first entry into the Land if he do not give him notice of it and therfore if it shall be a Condition it had been broken on the part of William for want of giving notice to the Executor of the time of his first entry wherby the Executor might have notice of the time to make his demand because without a demand refusall cannot be and the Executor is excused to make demand when he had no notice of the time and therfore the default of William in not giving notice of it shall be taken against him as strongly as if he had made a refusall to pay upon demand for if notice had been given to the Executor and he had demanded the money and William had said nothing to it but omitted to pay it yet this shall be a refusall in Law But of this nothing appeareth in the Verdict whether the Executor had notice given to him or not nor nothing mentioned in the Verdict whether any demand or refusall was made of the money or not and therfore the Verdict as to these points is incertain to judge upon whether it shall be taken to be a Condition in William But it seems as the Verdict is that Iudgment ought to be given against the Plaintiff for the conclusion of the Verdict is upon the entry of the Defendant whether this be lawfull or not and not upon the expulsion or whether upon the other Moyetie his entry was lawfull in right of the said William because they were Tenants in Common 3. IN Trespasse of Assault Battery and Imprisonment made such a day at in the Countie of Cornwall brought by against The Defendant saith that he was Constable of the same Town and that the Plaintiff the said day year and place brought an Infant not above the age of ten daies in his armes and left him upon the ground to the great disturuance of the people there being and that he commanded the Plaintiff to take up the said Infant and to carry it from them with him which the Plaintiff refused to do for which cause he quietly laid his hands upon the Plaintiff and committed him to the Stocks in the same Town where he continued for such a time untill he agreed to take up the Infant again which is the same Assault Battery and Imprisonment of which the Plaintiff complains upon which the Plaintiff demurred Fennor was of opinion that that which the Constable did was lawfull and that it is hard that an Officer shall be so drawn in question for it for this shall be an utter discouragement to good Officers to execute their Offices as they ought to do Popham A Constable is one of the most ancient Officers in the Realm for the conservation of the Peace and by his Office he is a Conservator of the Peace and if he sees any breaking of the Peace he may take and imprisen him untill he find surety by obligation to keep the Peace And if a man in fury be purposed to kill maime or beat another the Constable seeing it may arrest and imprison him untill his rage be passed for the conservation of the Peace And if a man layes an Infant which cannot help it self upon a Dunghill or openly in the field so that the Beasts or Fouls may destroy it the Constable seeing it may commit the party so doing to Prison for what greater breach of the Peace can there be then to put such an Infant by such means in danger of its life And what diversity is there between this case and the case in question for no body was bound by the Law to take up the Infant but he which brought it thither and by such means the Infant might perish the default therof was in the Plaintiff and therfore the Action will not lye And therupon it was agreed that the Plaintiff take nothing by his Writ Hayes versus Allen. 4. TErm Pasch 33 Eliz. Rot. 1308. A Cui in vita was brought in the Common Pleas by Ralph Hayes against William Allen of a Messuage with the Appurtenances in St. Dunstans in the East London in which it was supposed that the said Wil. had no entry but after the demise which John Bradley late husband to Anne Bradley Aunt of the said Ralph whose heir the said Ral was made to Tho. Allen and Jo. Allen and counts accordingly shews how Cosin and Heir to wit Son of Wil. brother of the said Anne Wil. Allen traverse the Demise made to the said Tho. and Jo. Allen and at Nisi prius it was found that the said Jo. Bradley and Anne his wife was seised in their demesn as of fee in right of the said Ann of a Messuage in S. Dunstans aforesaid containing from the North to the South 18 foot and from East to West 12 foot and a half and being so seised during their Marriage by their Deed sealed with their Seals enfeoffed the said Tho. Allen and Jo. Allen therof to hold to them and their heirs to the use of the said Jo. Bradley and Anne his wife for their lives and afterwards to the use of the Church-wardens of S. Dunstans Lond. and of their successors for ever to the use of the poor of the same place and that Livery was made accordingly and that the said Deed was inrolled in the Chancery at Westm and that afterwards the said Anne died and that Jo. Bradley survived her died and that the right of the said Mess descended to the said Ra. as cosin and heir of the said A. And that Sir W. Allen K. was seised of a peece of land in S. Dunst aforesaid containing 6 foot 4 inches contigious and adjacent to the said Mess late the said Jo. Bradleys and A. his wife in his demesn as of fee And that the said Sir Wil. after the said feoffment and before this Writ purchased utterly drew away the said Messuage late the said John Bradleys and Ann his wife and drected a new house upon the Land of the said Sir William and upon part of the Land upon which the other house stood containing from the North to the South thirteen foot from the East
there which to their Office of Sheriff appertaineth or any waies to intermeddle with it except only for the Sheriff of the County of Glocester to hold their County-Courts as is aforesaid And that the Major Aldermen of the said Town for the time being their Successors having power and authority to enquire here determine all things which Iustices of P. or Iustices assigned to hear determine Trespasses and Misdemeanors within the County of Glocest before this time have made or exercised And that the Iustices of Peace of him his Heirs or Successors within the said County of Glocester should not intermeddle with the things or causes which belong to the Iustices of Peace within the said Town c. And upon this Charter divers things were moved by Sir William Periam Knight now chief Baron of the Exchequer before his going into the Circuit 1. Whether by the saving of the Charter they have sufficient power reserved to them to fit within the Town being now exempted from the said Town of Glocester to enquire there of the Felonies done in the said County of Glocester And so for the Assises and Nisi prius taken there of things made in the County of Glocester Then if the the Sheriffs may execute their Warrants made there at the time of the Assises or Goal-delivery notwithstanding the exemption given to them by the Patent And it was agreed by all the Justices that the saving in the Patent is sufficient for the Iustices of Assise and Goal-delivery to sit there for the things which happen within the County of Glocester for as the King may by his Letters Patents make a County and exempt this from any other County so may he in the making of it save and except to him and his Successors such part of the Iurisdiction or priviledge which the other County from which it is exempted had in it before As in divers places of the Realm the Goal of a Town which is a County of it self or which is a place priviledged from the County is the Goal of the County and the place where the Assises or Goal-delivery is holden is within the County of the Town and yet serve also for the County at large as in the Sessions Hall at Newgate which serves as well for the County of Middlesex as for London and yet it stands in London but by usage it hath alwaies been so and nothing can be well prescribed unto by usage which cannot have a lawfull beginning by Award or Grant and this by the division of London from Middlesex at the beginning might be so And so the Goal of Bury c. And although that the words are saving to him and his Heirs yet by the word Heirs it shall be taken for a perpetual saving which shall go to his Successors which is the Queen and the rather because it is a saving for Iustice to be done to the Subjects which shall be taken as largely as it can be And albeit the expresse saving for the Sheriff is but for to hold his turn yet in as much as the authority of the Iustices of Assise and Goal-delivery in holding their Sessions as before was accustomed is saved it is Included in it that all which appertain to the execution of this Service is also saved or otherwise the saving shall be to little purpose And therfore that the Sheriff or other Minister made by the authority of these Courts is well made there and warranted by the Charter And wee ought the rather to make such exposition of the Charter because it hath been alwaies after the Charter so put in execution by all the Iustices of Assise But it seems that by this Commision for the County a thing which happens in the Town cannot be determined albeit it be Felony commited in the Hall during the Sessions but by a Commission for the Towne it may 7. SIr Francis Englefield Knight being seised in his Demesne as of Fee of Vide this case reported in Coke lib. 7. 12 13. the Mannor of Englefield in the County of Berks and of divers other Lands in the first year of Queen Eliz. departed out of the Realm by licence of the Queen for a time and remained out of the Realm in the parts beyond the Seas above the time of his licence wherby the Queen by her Warrant under her privy Seal required him to return upon which he was warned but did not come wherupon the Queen seised his Land for his contempt After vvhich the Statute of Fugatives was made 13. year of the Queen upon which by Commissions found upon this Statute all his Lands were newly seised and afterwards 17 Eliz. by Indenture made between him and Francis Englefield his Nephew and sealed by the said Sir Francis at Rome the said Sir Francis covenanted with his said Nephew upon consideration of advancement of his Nephew and other good considerations to raise an use that he and his Heirs and all others seised of the said Mannor c. shall hereafter stand seised of them to the use of himself for term of his life without impeachment of Wast and afterwards to the use of his Nephew and of the Heirs Males of his body and for default of such Issue to the use of the right Heirs and Assigns of the said Francis the Nephew for ever with a Proviso that if the said Sir Francis shall have any Issue Male of his body that then all the said Vses and Limitations shall be void and with a Proviso further that if the said Sir Francis by himself or any other shall at any time during his life deliver or tender to his said Nephew a King of Gold to the intent to make the said Vses and Limitations void that then the said Vses and Limitations shall be void and that therafter the said Mannors c. shall be as before Afterwards the said Francis was attainted of Treason supposed to be committed by him 18 Eliz. A Le umures in partibus transmarinis le attainder fuit primerment utlagary apres per act de Par. 28 Eliz. by which the forfeiture of the Condition was given to the Queen and at the same Parliament it was also enacted that all and every person or persons which had or claimed to have any Estate of Inheritance Lease or Rent then not entred of Record or certified into the Court of Exchequer of in to or out of any Mannors Lands c. by or under any Grant Assurance or Conveyance whatsoever had or made at any time after the beginning of the Raign of her Majesty by any persons attainted of any Treasons mentioned in the said Act after the 8. day of February 18 Eliz. within two years next ensuing the last day of the Session of the said Parliament shall openly shew in the said Court of Exchequer or cause to be openly shewn there the same his or their Grant Conveyance or Assusance and there in the Term time in open Court the same shall offer
years are past but in this case it ought to be shewn a Term within the two years which is as much as to say that if the Terms be all past so as it cannot be done after it within the two years the Assurance eo instanti upon the finishing of the last Term is become void as if an Assurance be upon condition that if in the Term time within two years he do not levy a Fine to I. S. and his Heirs c. now if the last Term passe without the Fine the Vse change albeit the two years be not expired si Parolls fort Plea And there is great diversity where an Estate is to be defeated or an Vse is to be raised upon an Act to be done or not done within a time certain within two years and where within two years generally for in the first case the Vse change upon the Act done or not done immediatly and in the other not untill the two years are finished because that by presumption alwaies within two years the Act may be done for any thing of which the Law takes conusance But if the Act to be done or not done refer to any time certain within the two years as if he do not pay 10 l. to one before the Feast of S. Michael the Arch-angel within the two years that then the Vse shall change or the Estate shall be void in these cases immediatly upon the last Feast of S. Michael the Arch-angel within the two years the Vse change or the Estate shall be void as the case is and shall not tarry untill the full end of the two years to do it for in the words themselves the diversity appeareth 8. AT the same time there was another Indenture shewn to the said Iudges bearing date the 4. day of May 1 Eliz. made between the said Sir Francis Englefiâ—ld of the one part And Sir Edward Fitton and Sir Ralph Egerton Knights of the other part and inrolled in the Exchequer according to the Statute of the 30. day of October 30 Eliz by which the said Francis for him and his Heirs covenanted with them that as well in consideration of a Marriage had and solemnised between John Englefield brother of the said Sir Francis and Margaret Fitton Sister to the said Sir Edward and for the augmentation and interest of the Ioynture of the said Margaret as for other good causes and reasonable considerations the said Sir Francis especially moving the said Sir Francis before the Feast of S. John Baptist then next ensuing would assure Lands within the County of Warwick of the value of 60 l. a year to the said Sir Edward and Sir Ralph and their Heirs to the use of the said Margaret for her life and for her Ioynture for part of it and for the remainder that it shall also be to the use of the said Margaret for her life in case that the Lady Anne then the wife of the said Sir Francis should recover her Dower of the said 60 l. a year And the said Sir Francis for him and his Heirs did further covenant with the said Sir Edward and Sir Ralph that if it should happen that the said Sir Francis shall die without Issue Male of his body the said Iohn or any Issue of his body upon the body of the said Margaret begotten then living that then after the death of the said Sir Francis as well the Mannor of Englefield as all his other Lands making especiall mention of them should be and might descend remain revert continue or be in possession or rebersion to the said Iohn Englefield and to the Heirs Males of his body upon the body of the said Margaret lawfully begotten if the sayd Iohn were then living or to the Heirs Males of the body of the sayd Iohn upon the body of the sayd Margaret lawfully begotten without any Act or Acts Thing or Things made or to be made by the sayd Sir Francis to the contrary therof And upon this it was moved that there was a variance between this Deed now shewn and this Inrolement and that therfore it doth not appeare whether this Deed was shewn in the Court or delivered there according to the Statute therof made 28 Eliz. for in the Deed it is for other good causes and this word good is not comprised within the Inrolement But as to it all the Iudges and Barons agreed that albeit these defeats hapned by the negligence of the Clerk in writing and examining this Inrollement remaines good in as much as the omissions are in matters and words which are of abundance and not in that which is any substance of the Deed. But the Lords of Parliament which were Committees of this case in the Parliament sent for the Record of the sayd Inrolement and would have had this to have been amended in the Chamber next to the Parliament but as the Officer was in doing of it the Iudges advised that it should not be done as well because this was not the place where it ought to be amended but the Court of Exchequer if it were or needed to be amended And also because that the two years after the Session of Parliament of 28 Eliz. was then past Then it was moved whether by the Covenant and considerations aforesaid the use shall passe or were raised to John Englefield or now to his Son Francis Nephew to the said Sir Francis and begotten upon the body of the sayd Margaret And all agreed that it is not for divers reasons 1. Because it is that if it happen that Sir Francis die without Issue Male that then it shall be to John as before if he be then living or to the Heirs Males of his body as before which is in the disjunctive to wit that it shall remain to John or to his Heirs Male of his body which cannot raise any use but found only in Covenant for the incertainty and also it is upon a future contingent to wit if the said John be then living 2. Because the Covenant is that it shall come or descend c. in the disjunctive and if he had covenanted that it shall descend to Iohn after his death without Issue Male it had been cleer that no use had been raised by it for it shall be but a meer Covenant to wit that he shall leave it to descend to him and here it being in the disjunctive it cannot be any other then a bare Covenant to wit that he shall suffer it to descend or otherwise by conveyance to come to John after his death without Issue Male the one or the other at his pleasure And yet further that it shall descend come or remain to John in possession or reversion so that he may make the one or the other void at his pleasure which cannot be if an Vse shall be raised by it and therfore also it enures but as a bare Covenant which he may perform either the one or the other way at his pleasure Also it is that it
such Estates that the Law allows them to be good against the Lords themselves they performing their Customs and Services and therfore are more commonly guided by the guides and rules of the common Law and therfore as appeareth in Dyer Tr. 12. Eliz. Possessio fratris of such an Estate facit sororem esse haeredem And to say that Estates of Copyhold Land are not warranted but by custom and every Custom lies in Vsage and without Vsage a Custom cannot be is true but in the Vsage of the greater the lesser is alwaies implyed As by Vsage three lives have been alwaies granted by Copy of Court Roll but never within memory two or one alone yet the grant of one or two lives only is warranted by this Custom for the use of the greater number warrants the lesser number of lives but not è converso And so Fee-simples upon a Limitation or Estates in tail are warranted by the equity of the Statute because they are lesser Estates then are warranted by the Custom and these lesser are implyed as before in the greater and none will doubt but that in this case the Lord may make a Demise for life the Remainder over in Fee and it is well warranted by the Custom and therfore it seems to them that it is a good Estate tail to John Gravenor and a good Remainder over to Henry his Brother and if so it follows that the Plaintiff hath a good Title to the Land and that Iudgment ought to be given for him And for the dying seised of Elizabeth they did not regard it for she cannot dye seised of it as a Copyholder for she had no right to be Copyholder of it And by the dying seised of a Copyholder at common Law it shall be no prejudice to him who hath right for he may enter But here in as much as she cometh in by admittance of the Lord at the Court her Occupation cannot be fortious to him and therfore no descent at common Law by her dying seised for it was but as an Occupation at Will But if it shall not be an Estate tail in John Gravenor as they conceive strongly it is yet for the other causes alledged by Gawdy and Clench Iudgment ought to be given for the Plaintiff and the Remainder which is not good shall not prejudice the Fee-simple conditionall granted to John which is no more then if the Surrender had been to the use of Iohn Gravenor and his Heirs the Remainder over because that we as Iudges see that this cannot be good by Law and therfore not to be compared to the case where the Custom warrants but one life and the Lord grants two joyntly or successively there both the one and the other is void And this is true because the custom is the cause that it was void and not the Law and also it is a larger Estate then the Custom warrants which is not here and upon this Iudgment was given that the Plaintiff shall recover And by Popham it hath been used and that upon good advice in some Maâ—nors to bar such Estates tails by a common Recovery prosecuted in the Lords Court upon a Plaint in nature of a Writ of Entry in the Post 2. JUlius Cesar Iudge of the Admiralty Court brought an Action upon the Case for a Slander against Philip Curtine a Merchant-stranger for saying that the said Cesar had given a corrupt Sentence And upon not guilty pleaded and 200. marks Damages given it was alledged in arrest of Iudgment where it was tryed by Nisi prius at the Guildhall by a partiall Inquest because that upon the default of strangers one being challenged and tryed out a Tales was awarded De circumstantibus by the Iustice of Nisi prius wheras as was alledged a Tale could not have been granted in this case for the Statute of 35 H. 8 cap. 6. which give the Tales is to be intended but of commontryals of English for the Statute speaks at the beginning but of such Iuries which by the Law eught to have 40 s. of Free-hold and wills that in such cases the Venire facias ought to have this clause Quorum quilibet habeat 40 s. in terris c. which cannot be intended of Aliens which cannot have Free-hold And it goes further that upon default of Iurors the Iustices have authority at the Prayer of the Plaintiff or Defendant to command the Sheriff or other Minister to whom it appertaineth to make a return of such other able persons of the said County then present at the same Assises or Nisi prius which shall make a full Iury c. which cannot be intended of Aliens but of Subjects and therfore shall be of tryals which are onely of English and not of this Inquest which was part of Aliens And further the Tales was awarded only of Aliens as was alledged on the Defendants part but in this point it was a mistake for the Tales was awarded generally de circumstantibus which ought alwaies to be of such as the principall Pannell was But Per Curiam the exceptions were disallowed for albeit the Statute is as hath been said yet when the Statute comes to this clause which gives that a Tales may be granted by the Iustices of Nisi prius and is generally referred to the former part of the Act for it is added Furthermore be it enacted that upon every first Writ of Habeas Corpora or Distringas with a Nisi prius c. the Sheriff c. shall return upon every Juror 5 s. Issues at the least c which is generall of all And then it goes further And wills that in every such Writ oâ— Habeas Corpora or Distringas with a Nisi prius where a full Jury doth not appear before the Justices of Assise or Nisi prius that they have power to command the Sheriff or other Minister to whom it appertains to nominate such other persons as before which is generall in all places where a Nisi prius is granted and therfore this is not excepted neither by the Letter nor intent of the Law And where it is said such persons by it is to be intended such as the first which shall be of Aliens as well as English where the case requires it for expedition was as requisite in cases for or against them as if it were between other persons And Aliens may well be of the County or place where the Nisi prius is to be taken and may be there for although an Alien cannot purchâ—se Land of an Estate of Free-hold within the Realm yet he may have a house for habitation within it for the time that he is there albeit he be no Denison but be to remain there for Merchandise or the like And by Gawdy where the default was only of strangers the Tales might have been awarded only of Aliens as where a thing is to be tryed by Inquest within two Counties and those of the one County appear but not those of the other the
to the use of Dennis May his Son and Heir apparant and his Heirs upon condition that the said Dennis and his Heirs should pay to one Petronell Martin for his life an annuall Rent of 10 l. which the said Thomas had before granted to the said Petronell to begin upon the death of the said Thomas And upon condition also that the said Thomas upon the payment of 10 s. by him to the said Feoffees or any of them c. might re-enter After which the said Thomas May and Dennis by their Deed dated 30. May 19 Eliz. granted a Rent-charge out of the said Mannor of 20 l. a year to one Anne May for her life after which the said Thomas May paid the said 10 s. to the said Feoffees in performance of the Condition aforesaid and therupon re-entred into the Land and enfeoffed a stranger And whether by this the Rent were defeated was the question And it was mooved by Coke Attorney-generall that it was not but that in respect that he joyned in the part it shall enure against the said Thomas by way of confirmation which shall bind him as well against this matter of Condition as it shall do against any Right which the said Thomas otherwise had And therfoâ—e by Littleton If a Disseisor make a Lease for years or grant a Rent-charge and the Disseisor confirm them and afterwards re-enters albeit Lit. there makes a Quaere of it yet Cook said That the Disseisor should not avoid the Charge or Lease which was granted by the whole Court And by him the opinion is in P. 11. H. 7. 21. If Tenant in Tail makes a Feoffment to his own use upon Condition and afterwards is bound in a Statute upon which Execution is sued and afterwards he re-enter for the Condition broken he shall not avoid the Execution no more the Rent here Fennor agreed with Cook and said further That in as much as every one who hath Title and Interest have joyned in the Grant it remains perpetually good And therfore if a Parson at Common Law had granted a Rent-charge out of his Rectory being confirmed by the Patron and Ordinary it shall be good in perpetuity and yet the Parson alone could not have charged it and the Patron and Ordinary have no Interest to charge it but in as much as all who have to intermeddle therin are parties to it or have given their assent to it it sufficeth Gawdy was of the same opinion and said That there is no Land but by some means or other it might be charged and therfore if Tenant for life grant a Rent-charge in Fee and he in the Reversion confirm the Grant per Littleton the Grant is good in property so here To which Clench also assented but Popham said That by the entry for the Condition the Charge is defeated And therfore we are to consider upon the ground of Littleton in his Chapter of Confirmation to what effect a Confirmation shall enure and this is to bind the right of him who makes the Confirmation but not to alter the nature of the Estate of him to whom the Confirmation is made And therfore in the case of a grant of a Rent-charge by the Disseisor which is confirmed by the Demisee the reason why the Confirmation shall make this good is because that as the Disseisee hath right to defeat the right and the Estate of the Disseisor by his Regresse in the same manner hath he right therby to avoid a Charge or a Lease granted by the Disseisor which Right for the time may be bound by his confirmation But when a man hath an Estate upon condition although the Feoffor or his Heirs confirm this Estate yet by this the Estate is not altered as to the Condition but it alwaies remaineth and therfore Nihil operatur by such a confirmation to prejudice the Condition And so there is a great diversity when hewho confirmeth hath right to the Land and where but a Condition in the Land And by him if a Feoffee upon condition make a Feoffment over or a Lease for life or years every one of these have their Estates subject to the Condition and therfore by a Confirmation made to them none can be excluded from the Condition And the same reason is in case of a Rent granted by a Feoffor upon Condition it is also subject to the Condition and therfore not excluded from it by the Confirmation as it shall be in case of a Right And to prove this diversity suppose there be Grand-father Father and Son the Father disseise the Grand-father and makes a Feoffment upon Condition and dies after which the Grand-father dies now the Son confirms the Estate of the Feoffee by this he hath excluded himself from the Right which descended to him by his Grand-father but not to the Condition which descended to him from his Father And of this opinion were Anderson and other Iustices at Serjeants-Inn in Fleetstreet for the principall Case upon the Case moved there by Popham this Term And as the case is it would have made a good question upon the Statute of Fraudulent Conveyances if the Avowry had been made as by the grant of Thomas May in as much as the Estate made to the use of Dennis was defeasable at the pleasure of the said Thomas in as much as it was made by the Tenant of the Land as well as by him who made the Conveyance which is to be judged fraudulent upon the Statute But this as the pleading was cannot come in question in this case And afterwards by the opinion of other three Iudges Iudgment was given that the Grant should bind the said Thomas May and his Feoffees after him notwithstanding his regresse made by the Condition in as much as the Grant of the said Thomas shall enure to the Grantee by way of confirmation And by Gawdy If a Feoffee upon Condition make a Feoffment over and the first Feoffor confirm the Estate of the last Feoffee he shall hold the Land discharged of the Condition because his Feoffment was made absolutely without any Condition expressed in his Feoffment But Popham denied this as it appeareth by Littleton Tit. Descents because he hath his Estate subject to the same Condition and in the same manner as his Feoffor hath it into whomsoever hands it hapneth to come and therfore the Confirmation shall not discharge the Condition but is only to bind the right of him who made it in the possession of him to whom it is made but not upon Condition Morgans Case 7. RObert Morgan Esquire being seised in his Demesne as of Fee of certain Lands called Wanster Tenements in Socage having Issue John his eldest Son Christopher his second Son and William his youngest Son by his last Will in writing demised to the said Christopher and William thus viz. Ioyntly and severally for their lives so that neither of them stall alienate the Lands and if they do that they shall remain to his Heirs Robert the Father
Richard he made assurance by Fine of his Lands being 174 l. a year viz. Of part therof of the value of 123 l. a year of which part was holden of the Queen by Knights Service in Capite to the use of himself for his life and after his decease to the use of the said William and Margaret and the Heirs of the body of the said William begotten on the body of the said Margaret and for default of such Issue to the use of the right Heirs of the said William And of the residue therof being also holden in Capite of the Queen to the use of himself for his life and after his decease to the use of the first Issue Male of the said Richard and to the Heirs Males of his body and then to other Issues of his body and for default of such Issue to the said William and Margaret and the Heirs of the body of the said William on the body of the said Margaret lawfully begotten and for default of such Issue to the right Heirs of the said William with this Prouiso That it shall be lawfull for the said Richard to make a Joynture to his wife of the Lands limited to his Issue Males and for making of Leases for 21. years or three lives for any part of the said Land rendring the ancient Rent except of certain parcels and that William died without Issue and that Gilbert Littleton was his Brother and Heir and that the said Margaret married the said George Littleton youngest brother to the said William which are yet living And that the said Richard married Dorothy and made her a Joynture according to the Proviso And that the said Richard had Issue Iohn Smith and died the said Iohn being his Son and Heir and within age After which a Melius inquirendum issued by which it was found that the said Margaret was the Daughter of the said Richard and that the said Land was of the value of 12000 l. at the time of the assurance And how much of the Land shall be in ward and what Land and what the Melius inquirendum makes in the case was the question put to the two chief Iustices Popham and Anderson who agreed that the Queen now shall have the third part as well of that which was assured to William and Margaret immediatly after the death of the said Richard as of that which was limited to Dorothy for the life of the said Margaret for although money were paid yet this was not the only consideration why the Lands were assured but the advancement of the Daughter and now by the surviving of the said Margaret shee shall be said to be in the whole which was assured to her by her Father and for her advancement and the Land as it appears was of greater value then the money given and may as well be thought to be given for the Remainder of the Fee And agreeable to this was the case of Coffin of Devonshire about the beginning of the Raign of the now Queen which was that the said Coffin for moneys paid by one Coffin his Cosin having but Dâ—ughters himself conveyed his Land to the use of himself and his wife and to the Heirs Males of his body and for default of such Issue to the use of his said Cosin and his Heirs for which his said Cosin was to give a certain sum of money to the Daughters for their marriage Coffin dies his said Daughters being his Heirs and within age and were in ward to the Queen the Lands being holden by Knights Service in Capite And the third part of the Land was taken from the wife of Coffin for the life of the said wife if the Heirs continue so long in Ward And it was also agreed by them and the Councell of the Court that the Melius inquirendum was well awarded to certifie that the said Margaret was the Daughter of the said Richard of which the Court could not otherwise well take Conusance for they thought that it was not matter to come in by the averment of the Attorney-generall as Dyer hath reported it But now by the Statute it ought to be found by Inquisition and being a thing which stands with the former Inquisition it ought to be supplied by the Melius inquirendum for the same Statute which gives the Wardship in case where Land is conveyed for the advancement of the Wife or Infants or for the satisfaction of Debts and Legacies of the party by the implication of the same Statute this may be found by Inquisitton and if it be omitted in the Inquisition it ought to be found by a Melius inquirendum but not to come in by a bare surmise And therfore if in the Inquisition it be found that the Ancestor had conveyed his Land by the Melius inquirendum it may be found that it was for the payment of his Debts or Legacies or that the party to whom or to whose use it was made was the Son or Wife of the party that made it and that by the very purport of the Statutes 32. 34 H. 8. as by Fitzherbert if it be surmised that the Land is of greater value then it is found a Melius inquirendum shall issue and so shall it be if it be found that one is Heir of the part of the Mother but they know not who is Heir of the part of the Father so if it be not found what Estate the Tenant had or of whom the Land was holden so upon surmise made that he is seised of some other Estate or that he held it by other Services by Fitzherbert a Melius inquirendum shall Issue and upon this order given it was decreed accordingly this Term. Morgan versus Tedcastle 4. IN the same Term upon matter of Arbitrement between Morgan and Tedcastle touching certain Lands at Welburn in the County of Lâ—ncoln put to Popham Walmesley and Ewens Baron of the Exchequer Wheras Morgan had granted to Tedcastle a 100. acres of Land in such a field and 60 in such a field and 20. acres of Meadow in such a Meadow in Welburn and Hanstead in which the acres are known by estimations or limits there be shall take the acres as they are known in the same places be they more or lesse then the Statute for they passe as they are there known and not according to the measure by the Statute But if I have a great Close containing 20. acres of Land by estimation which is not 18. And I grant 10. acres of the same Close to another there he shall have them according to the measure by the Statute because the acres of such a Close are not known by parcels or by meets and bounds and so it differeth from the first case And upon the case then put to Anderson Brian and Fennor they were of the same opinion Quod nota Humble versus Oliver 5. IN Debt by Richard Humble against William Oliver for a Rent reserved upon a Lease for years the case was
35 E. Rot. 258. And Popham said further in this case that to erect an Hospitall by the name of an Hospitall in the County of S. or in the Bishopprick of B. and the like is not good because he is bound to a place too large and incertain But a Colledge erected in Accademia Cantabrig or Oxon. is good and sâ—me are so founded because it tends but to a particular place as a City Town c. King versus Bery and Palmer 2. IN an Ejectione firmae brought by William King against John Bery and William Palmer Defendants for two Messuages and certain Lands in Halstead in the County of Leicester upon a Demise alledged to be made by Dorothy Pool and Robert Smith the case upon a speciall Verdict was this The said Dorothy was Tenant for life of the said Tenants the Remainder over to the said Robert Smith and his Heirs and they being so seised made the Lease in the Declaration upon which the Action was brought And per curiam the Lease found by the Verdict doth not warrant the Lease alledged in the Declaration for although they joyned in the Demise yet during the life of the said Dorothy it is her Demise and not the Demise of the said Robert Smith but as his confirmation for that time for he hath nothing to do to meddle with the Land during the life of the said Dorothy but after the death of the said Dorothy then it shall be said to be the Domise of the said Robert Smith and not before because untill this time Smith hath nothing to do to meddle with the Land And in a more strong case If Tenant for life and he in the Reversion in Fee make a Gift in tail for the life of Tenant for life it shall be said to be his Gift but after his death it shall be said the Gift of him in the Reversion and if the Estate tail had expired during the life of the said Tenant for life he shall have the Land again in his former Estate and there shal be no forfeiture in the case because he in the Reversion of the immediate Estate of Inheritance had joyned in it and therfore hath dispensed with that which otherwise had been a meer forfeiture of the Estate for life wherby it was awarded by the Court that the Plaintif take nothing by his Bill in 33 34 Eliz. Rot. And the Judgment is entred Hill 34. Eliz. Ret. 72. 3. In this Term I hapned to see a Case agreed by the Iustices in 3. 4. Eliz. which was this If a man make a Lease of two Barns rendring Rent and for default of payment a Re-entry if the Tenant be at one of the Barns to pay the Rent and the Lessor at the other to demand the Rent and none be there to pay it that yet the Lessor cannot enter for the Condition broken because there was no default in the Tenant he being at one for it was not possible for him to be at both places together And upon this Case now remembred to the Iustices Popham Walmesley and Fennor said That perhaps also the Tenant had not money sufficient to have been ready to have paid it at either of the said places but it is sufficient for him to have and provide one Rent which cannot be at two places together And by the Case reported here also If Lands and Woods are demised together the Rent ought to be demanded at the Land and not the Woood because the Land is the more worthy thing and also more open then the Wood And therfore by the three Iustices aforesaid Rent ought not to be demanded in any private place of a Close as amongst Bushes in a Pit or the like nor in the open and most usuall passage therof as at a Stile Gate and the like 4. Vpon a Prohibition sued out of the Kings Bench the Case appeared to be this The late Lord Rich Father to the now Lord Rich devised to his Daughter for her advancement in marriage 1500. upon condition that she marry with the consent of certain friends and deviseth further that if his Goods and Chattels are not sufficient to pay his Debts and Legacies that then there shall be 200 l. a year of his Lands sold to supply it and dies making the now Lord Rich his Executor his Goods and Chattels not being sufficient to pay the Debts of the Testator as was averred the said Daughter married with a Husband against the will of those who were put in trust to give their assents and the Husband and the Wife sued in the Spirituall Court for the Legacy And it was surmised that they would not allow the proofs of the said now Lord Rich exhihited to prove the payment of the Debts of his Testator and further that they would charge him for the sale of the Land upon which matter the Prohibition was granted to the Delegates before whom the matter depended and now consultation was prayed in the case Vpon which it was affirmed by a Doctor of the Civill Law that they will allow the proofs for the payment of the Debts according to our Law and that the Legacy shall not be paid untill the Debs are satisfied But he said that by the Law if the Executor do not exhibit his Inventory but neglect it for a year or more that then if any omission or default be in the true value of the Inventory exhibited that then such on Executor for this default shall pay all the Legacies of his Testator of what value soever they are not respecting the Debts or the value of the Goods or Chattels how small soever the omission or default be in the Inventory And so he said was the case of the now Sir Richard S. who did not bring in the Inventory for four years after the death of the Testator and that in the Inventory exhibited the values of every thing were found to be too small and therfore to be charged by their Law albeit he hath not Goods and Chattels sufficient of the Testators To which it was answered that this was quite without reason for by such means every Subject of the Realm may be utterly defeated if he take upon him the charge of an Executorship And if this shall be admitted no man will take upon him the Execution of the Will of any and by such a means none will have their Wills performed which shall be too inconvenient And they said further that in as much as Debts are to be proved by the Common Law of the Realm those of the Ecclesiasticall Courts ought to admit in the proof therof such proofs as our Law allows and not according to the precisenesse of their Law And although by their Law such a Condition as before being annexed to a Legacy is void because that marriage oughr to be free without Coercion yet where we are to judge upon the point as we are here if the Execution happen to be charged because of the sale of Land and for
And if this doth not passe nothing can passe which was in the Tenure of the said Brown because he had nothing in the places comprised in the Patent But it was agreed by all the Court that it shall not passe by the said Patent in this case for the word illa is to be restraind by that which follows in the Patent where it depends upon a generality as here and that it refers but to that in Wells as the liberty of that which was parcell of the possessions of the said Hospitall and in the Tenure of the said John Brown And if it were not of these possessions or not in Wells c. or not in the Tenure of the said John Brown it shall not passe for the intent of the King in this case shall not be wrested according to the particular or the value which are things collaterall to the Patent but according to his intent comprised in or to be collected by the Patent it self And Popham said that by Grant of omnia terras Tenementa Hereditamenta sua in case of the Queen nothing passe if it be not restraind to a certainty as in such a Town or late parcell of the Possessions of such a one or of such an Abbey or the like in which cases it passeth as appeareth by 32 H. 8. in case of the King But if it be Omnia terras tenementa sua vocat D. in the Tenure of such a one and in such a Town and late parcell of the possessions of such a one there albeit the Town or the Tenant of the Land be utterly mistaken or that it be mistaken of what possessions it was it is good for it sufficeth that the thing be well and fully named and the other mistakes shall not hurt the Patent And the word of Ex certa scientia c. will nof help the Patent in the principall case And the case of 29 E. 3. is not to be compared to this case for it was thus The King granted the Advowson of the Priory of Mountague the Prior being an Alien to the Earl of Salisbury and his Heirs for ever And also the keeping and Farm with all the Appurtenances and Profits of the said Priory which he himself had curing the War with the keeping of certain Cellâ— belonging to the said Priory the said Earl died William Earl of Salisbury being his Son and Heir and within age wherupon the King reciting that he had seised the Earls Lands into his hands after his death for the Nonage of the Heir he granted to the said Earl all his Advowsons of all the Churches which were his Fathers and all the Advowsons of the Churches which belong to the Prior of Mountague to hold untill the full age of the said Heir quas nuper concessit prefat Comiti patri c. In which case although the King had not granted the Advowsons to the said Earl the Father aforesaid by the former Patent because no mention was of the Advowsons therof yet they passe by this Patent notwithstanding that which follows after to wit and which he granted to the Father of the Grantee But there it is by a Sentence distinct and not fully depending upon the former words as here to wit Omnia illa Messuagia c in Wells in the Tenure of the party parcell of the Possessions of such an Hospitall or Priory Quod nota and the difference And because the Defendant claimed under the first Patent and the Plaintiff by the latter Patent it was agreed that the Plaintiff should recover Which you may see in the Kings Bench. Harrey versus Farcy 7. IN an Ejectione firmae brought by Richard Harrey Plaintiff for the Moyety of certain Tenements in North-petherton in the County of Somerset upon a Lease made by Robert Bret against Humfrey Farcy Defendant upon not guilty and a speciall Verdict found the case appeared to be this to wit That Robert Mallet Esquire was seised of the said Tenements in his Demesne as of Fee and so seised demised them to John Clark and Elianor Middleton for term of their lives and of the longer liver of them after which the said Tenements amongst others were assured by Fine to certain persons and their Heirs to the use of the said Robert Mallet for term of his life and after his decease to the use of John Mallet his Son and Heir of his body and for default of such Issue to the use of the right Heirs of the aid Robert Mallet After which the said Robert Mallet having Issue the said John Mallet Christian and Elianor Mallet died the said John Mallet then being within age and upon Office found in the County of Devon for other Lands holden of the Queen in Capite by Knights Service was for it in Ward to the Queen Afterwards the said John Mallet died without Issue during his Nonage and the Lands aforesaid therby descended to his said two Sisters to whom also descended other Lands in the County of Devon holden of the Queen in Capite by Knights Service conveyed also by the same Fine in like manner as the Lands in North Petherton the said Christian then being of the age of 22. years and the said Elianor of the age of 15. yeares upon which the said Christian and Elianor 12. Novemb. 31 Eliz. tendred their Livery before the Master of the Wards and before the Livery sued the said Christian took the said Robert Bret to husband and the said Elianor took to husband one Arthur Ackland after which in the Utas of the Purification of our Lady 32 Eliz. the said Robert Bret and Christian his wife levied a Fine of the said Tenements in North-petherton amongst others to George Bret and John Pecksey Sur conusance de droit come ceo que ils ont de lour done by the name of the Moyety of the Mannor of North petherton c. with warranty against them and the Heirs of the said Christian against all men who tendred it by the same Fine to the said Robert Bret and Christian and the Heirs Males of their bodies the remainder to the Heirs Males of the body of the said Christian the remainder over to the right Heirs of the said Robert Bret which Fine was engrossed the same Term of S. Hillary and the first Proclamation was made the 12th day of February in the same Term the second the first day of June in Easter Term 32 Eliz. The third the 8th day of July in Trinity Term next And the fourth Proclamation was made the 4th day of October in Michaelmas Term next after And the said Christian died without Issue of her body The 9th day of February 32 Eliz. between the hours of 3. 7. in the afternoon of the same day And the 22. of March 32 Eliz. the said Robert Bret by his writing indented dated the same day and year for a certain summ of money to him paid by the Queen bargained and sold gave and granted the said Teuements to the
be avoided and in the same manner here But Popham took a diversity where the Possession or the Estate of the Queen is determined and where not for where the Estate is determined there the Subject may enter into the Land without Office or ouster le main But where the Possession continues there the party shall not come to it unlesse by petition Monstrans de droit officio or the like and therfore hee said that if the Queen had an Estate pur auter vie or depending upon any other Limitation if it be determined according to the Limitation the party who hath interest may enter so in the case of the Devise put before And if a Lease be made for life the Remainder in Tail the Reversion in Fee and he in the Remainder in Tail levy a Fine Sur conusance de droit come ceo que il ad de son done to a stranger with proclamations according to the Statute and afterwards the stranger convey the Remainder to the Queen her Heirs and Successors and after the Tenant for life dies and after he in the Remainder in tail dies without Issue now may he in the Remainder in Fee enter because the Estate of the Queen is determined But here the Queen hath a Fee-simple in her self but determinable upon the Estate-tail which yet remaineth which Fee-simple in Reversion cannot be divested out of the possession of the Queen but by matter of Record of so high nature as it is in her to wit by Petition Monstrans de droit or the like As if a Reversson or Remainder be alienated in Mortmain the claim of the Lord sufficeth therâ— to vest the Reversion in the Lord for the Alienation but if the Reversion or Remainder of which such a claim was made be conveyed to the King his remedy is now by Office Monstrans de droit or Petition for claim will not now serve him for this shall be to divest the possession out of the Queen which by such means cannot be done no more then where a Reversion or Remainder is granted to the Queen upon Condition but he ought to have an Office to find the performance of it if it be to be performed by matter in pais and without Monstrans de droit or otherwise it shall not be divested out of the Queens possession yet in the case of a common person a claim will divest it out of them but not so of the Queen And these cases Gawdy agreed but he conceived that in the case in question the claim made determines the Estate of the Queen which is made by means of the Fine upon the Statute And Popham denied the case put in 7 H. 6. to be Law as it is put upon the opinion of Strange there for it is cleer that the claim there does not divest any possession which was in the King by means of the Wardship and if this be not therby defeated the claim does not help the Disseisee against the Descent and this appeareth fully by Littleton who saith so of a Claime which avoids a Descent to wit that it ought to be such upon which the Disseisee may upon every such Claim made have an Action of Trespasse or Assise against the Dissessor or him who is in possession if he continue his possession after such Claim made which cannot be in this case where the possession is in the King which cannot be defeated by such a Claim And in the Lord Dyer where the Feoffee or Mortgagee of Lands holden of the Queen in Capite by Knights Service died before the day of Redemption his Heir being within age wherby upon Office found the Queen had the Wardship of the body and land of the Heir after which the Mortgagee at the day of redemption made payment and of this also an Office was found yet he could not enter either before or after Office but upon Monstrans de droit therupon he had his Ouster le main And the reason why a Claim shall serve in this case between common persons is because that by such Claim the thing it self is devested out of him who had it before and therby actually vested in him who made the claim As where a Villain purchase a Reversion by the Claim of the Lord the Reversion is actually in him as it is of a Possession by Entry But where he is put to his Claim to devest any thing out of a common person he is put to his Suit to devest it out of the Queen Aad to say that Bret should not take advantage of this Conveyance made to make it good by the Fine I think the Law to be clear otherwise as to this point for the Statute of Fines was made tor the security of Purchasors and Possessors of Land and therfore taken more strongly against them who pretend Right or Title and for the greatest advantage that may be for the Possessors of Lands and therfore the Possessor by what ever means he can may make his Fine to be forceable And therfore the Fine upon this Statute differeth much from a Fine at Common Law for where at Common Law an Infent being a Disseisor was disseised by one who levies a Fine and the year and the day passe without claim of the first Disseisee now was the first Disseisee barred yet if afterwards the Infant who was not bound by the Fine enter the first Disseisee may enter upon him because that by this entry the Fine at Common Law was utterly defeated But now by the Statute such a Fine being levied with Proclamations the first Disseisee not pursuing according to the Statute is barred for ever And although the Infant enter at full age and undoes the Fine as to himself yet this Fine remains alwaies to bar the first Disseissee and makes that the Infant hath now Right against all the world and so now takes advantage therof And this is the intent of the Statute for the repose of Controversies and Suits and the quiet of the people And if I procure a Fine to be levied on purpose to bar another of his Action which he may have against me for the Land yet I shall take advantage of this Fine and the other shall have no advantage against me because of this Covin for if this should be admitted it will countervail the benefit which is intended to be by means of the Statute of Fines And if a Disseisor enfeoffee another upon Condition to the intent that a Fine with Proclamations shall be levied to the Feoffee to bar the Disseisee and after the Disseisee is barred the Disseisor enter for the Condition he shall yet take advantage of the Fine against the Disseisee And Popham put a case which was in this Court 23 Eliz. upon a speciall Verdict which was between Okes Plaintiff upon the Demise of John late Lord Sturton of Cottington which was this The Lord Sturton was Tenant for life of certain Lands in Lighe in the County of Somerset the remainder in Tail
alter the intendment that the Law hath otherwise of the words And Gawdy agreed also that in such cases the Defendant may plead the generall Issue and upon the matter also the Jury ought to find him not guilty But Popham and Clench sayd that this was a dangerous matter to be put in the mouthes of the Lay Gents as hath been said before and therfore to put it to the Iudgment of the Law by pleading And for the exception they ought to have shewn here where by whom and against whom the Petition was delivered to this they said that the exception was to no purpose for this was but a conveyance to the Speech used which Speech was the substance of the Bar and in this they put the case of the Lord Cromwell which was in this Court 22 Eliz. Rot. 752. In an Action upon the Statute of Scandalum Magnatum by him brought against Thomas Dye Clark for saying to the Lord Cromwel It is no news though you like not of me for you like of those that maintain Sedition against the Queens proceedings in which the Defendant said that he was Vicar of North Linham in the County of Norf. and that the Plaintff mentioned one Vincent Goodwyn Clark at such a time and one Iohn Trendle at such another time neither of them being licenced to preach in the said Church against the will of the said Defendant and shew how they severally preached there in their Sermons and shew certainly in what point Seditious Doctrine against the Laws of the Church as against the Crosse used in Baptisme and the wearing of the Surplice and that afterwards in speech therupon between the said Plaintiff and him the Plaintiff said to the Defendant That the Defendant was a false Knave and said in English words that he liked not of the Defendant wherupon the Defendant said the words comprised in the Declaration Innuendo That he liked of the said Goodwyn and Trendle who maintain Sedition Innuendo seditious Doctrine against the Queens proceedings Innuendo predict Leges Stat. Ecclâ—siae hujus regni Angl. c. And the Plaintiff was put to answer Scilicet de injuria sua propria absque tali causa c. And note in this case the Defendant would first have justified for the matter preached by one and it was not allowed by the Court but he was put to speak to both or otherwise it had not been good because his speeches were in the plurall number to wit That he liked of those which refers to more then to one And it was said in this case that the word Subject might have severall significations according to the circumstance wherupon it is spoken As Subiect generally without more is to be intended of the Queen but according to the circumstance it may be said Subject of England or Subject of Ireland or Subject to the Law or subject to any other authority or power set over him or subject to his Affections And if a man saith of another that he is a Subject and therfore he ought to serve the Queen in her Warrs and he answers that he is sorry for that and is grieved for it no Action wil lye for this because the grievance refers to service which is to be done and not to his Subjection as a Subject Dillon versus Fraine 9. IN Trespasse brought by William Dillon Esquire against John Fraine See this in Cook lib. 1. 120. bâ— the name of Chudleighs case for breaking of his Close at Tavestock in the County of Devon called Seden upon not guilty and a speciall Verdict the case appeared to be this to wit that Sir Richard Chudleigh Knight was seised in his Demesne as of Fee of the Mannor of Hescot with the Appurtenances in the County of Devon of which the said Close was parcel and so seised 26 April 3 4 Phil. Mar. by his Deed of Feoffment of the same date enfeoffed Sir Tho. Saintleger Knight and others and their Heirs of the said Mannor to the use of the said Sir Richard Chudleigh and his Heirs of the body of the said Elizabeth then the wife of Richard Bainfield Esquire lawfully begotten and for default of such Issue then to the use of the said Sir Richard Chudleigh and of his Heirs of the bodies of other wives of other persons lawfully begotten And for default of such Heirs then to the use of the performance of the Will of the said Sir Richard Chudleigh for 10. years after his decease and after the said Term finished then to the use of the said Sir John Saintleger and his Co-feoffees and their Heirs during the life of Christopher Chudleigh Son and Heir apparant of the said Sir Richard and after the death of the said Christopher then to the use of the first Issue Male of the body of the said Christopher and to the Heirs Males of the body of this first Issue Male and for default of such Issue to the second Issue Male of the body of the said Christopher to the Heirs Males of the body of this second Issue Male and so to the tenth Issue Male And for default of such Issue then to the use of Thomas Chudleigh another Son of the said Sir Richard and of the Heirs of his body lawfully begotten And for default of such Issue to the use of Oliver Chudleigh another Son of the said Sir Richard and of the Heirs of his body lawfully begotten And for default of such Issue to the use of Nicholas Chudleigh another Son of the said Sir Richard and of the Heirs of his body lawfully begotten and for default of such Issue to the right Heirs of the said Sir Richard Chudleigh for ever wherby they were seised accordingly after which the 17th of Novemb. 5 6. Phil. Mar. the said Sir Richard died without any Heir of the body of any of the wives before mentioned And after that the said Christopher took to wife one Christian Strecheley after which to wit the 14th day of August 1 Eliz. the said Sir John Saintleger and the other Feoffees by their Deed of the same date enfeoffed the said Christopher of the said Mannor to have and to hold to him and his Heirs for ever to the use of the said Christopher and his Heirs the said Oliver Chudleigh then being living after which to wit the 20th day of September 3 Eliz the said Christopher had Issue of his body lawfully begotten one Strechly Chudleigh his first Issue Male And after this to wit the 30. day of March 5 Eliz. the said Christopher had Issue of his body lawfully begotten one John Chudleigh his second Issue Male after which to wit the first day of July 6 Eliz. the said Christopher by his Deed indented of the same date and inrolled within six months according to the Statute bargained and sold the said Mannor to Sir John Chichester Knight and to his Heirs and in the interint also between the date of this Deed and in the inrolement therof to
wit the 6th day of July in the same 6th year by his Deed of the same date the said Christopher enfeoffed the said Sir John Chichester and his Heirs of the said Mannor and by the same Deed warranted it for him and his Heirs to the said Sir John Chichester and his Heirs wherupon the said Sir John Chichester entred into the said Mannor after which to wit the first day of October 12 Eliz. the said Christopher died after which the 7th day of November 13 Eliz. the said Stretchley Chudleigh died without Issue of his body And after the death of the said Sir Richard Chudleigh to wit the 6th day of September 7 Eliz. the said Sir John Chichester enfeoffed one Philip Chichester and his Heirs of the said Mannor to the use of the said Philip and his Heirs And the said Close being Copyhold and Customary Land of the said Mannor demisable by the Lord of the same Mannor or his Steward for the time being for life or lives by Copy of Court-roll according to the custom of the said Mannor The said Philip at a Court holden at the said Mannor for the said Mannor the 8th day of December 15 Eliz. by Copy of Court-roll granted the said Close to the said John Frain for Term of his life according to the custom of the said Mannor after which to wit the 11th day of March 28 Eliz. the said John Chudleigh being now Heir to the said Christopher enfeoffed the said William Dillon of the said Mannor to have and to hold to him and his Heirs to the use of the said William and his Heirs for ever wherby he entred and was seised untill the said John Fraine entred into the said Close upon him the 8th day of February 30 Eliz. upon which entry of the said Fraine this Action is brought And for difficulty of the case it was adjourned into the Exchequer Chamber before all the Iustices and Barons of the Exchequer And there it was agreed by all that a Warranty descending upon an Infant shall not bind him in case that the entry of the Infant be lawfull into the Land to which the Warranty is united But the Infant ought in such a case to look well that he do not suffer a descent of the Land after his full age before he hath made his re-entry for then the Warranty when he is to have an Action for the Land shall bind him And they agreed also that a Copyhold granted by a Disseisor or any other who hath the Mannor of which it is parcel by wrong shall be avoided by the Disseisee or any other who hath right to the Mannor by his entry or recovery of the Mannor And so by Popham it was agreed by the Iustices in the case of the Manner of Hasselbury Brian in the County of Dorset between Henry late Earl of Arundell and Henry late Earl of Northumberland but then he said that it was agreed that admittance upon surrenders of Copyholders in Fee to the use of another or if an Heir in case of a Descent of a Copyhold were good being made by a Disseisor of a Mannor or any other who hath it by Tort because these are acts of necessity and for the benefit of a stranger to wit of him who is to have the Land by the surrender or of the Heir And also Grants made by Copy by the Feoffee upon condition of a Mannor before the Condition broken are good because he was lawfull Dominus pro tempore And for the matter upon the Statute of 27 H. 8. what shall become of this future use â—imited to the first second and other Issues Males not in Esse at the time of the Feoffment Ewens Owen Bateman and Fennor said That an Use at Common Law is Use what it is no other then a confidence which one person puts in another for a confidence cannot be in Land or other dead thing but ought alwaies to be in such a thing which hath understanding of the trust put in him which cannot be no other then such a one who hâ—th reason and understanding to perform what the other hath committed to him which confidence shall bind but in privity and yet the confidence is in respect of the Land but every one who hath the Land is not bound to the confidence but in privity shall be said to be in the Heir and the Feoffee who hath knowledge of the confidence and in him who cometh to the Land by Feoffâ—ent without consideration albeit he hath no knowledge therof and yet every Feoffee is not bound although he hath knowledge of the confidence as an Alien Person Attaint and the like not the King he shall not be seised to anothers use because he is not compellable to perform the confidence nor a Corporation because it is a dead body although it consist of naturall persons and in this dead body a confidence cannot be put but in bodies naturall And this was the Common Law before the Statute of 27 H. 8. Then the Letter of the Statute is not to execute any Vse before that it hapneth to be an Vse in Esse for the words are Where any person is seised to the use of any other person that in such a case he who hath the Vse shall have the same Estate in the Land which he had before in the Vse Ergo by the very letter of the Law he ought to have an Estate in the Vse and there ought to be a person to have the Vse before the Statute intends to execute any possession to the Vse for the words are expresse that in every such case he shall have it therfore not another And therfore the Statute had purpose to execute the Vses in possession Reversion or Remainder presently upon the conveyance made to the Vses But for the future Vses which were to be raised at a time to come upon any contingent as to the Infants here not being then born the Statute never intended to execute such Vses untill they happen to have their beeing and in the mean time to leave them as they were at Common Law without medling with or altering of them in any manner untill this time and if before this time the root out of which these contingent Vses ought to spring be defeated the Vse for this is utterly destroyed and shall never afterwards have his being as here by the Feoffment made by the said Sir John Saintleger and his Co-feoffees who then were but as Tenements pur auter vie to wit for the life of Christopher and which was a forfeiture of their Estate and for which Oliver Chudleigh might have entred it being before that the said Strechley or John Chudleigh were born the privity of them from Estate being the root out of which this future use ought to have risen is gone and destroyed and therfore the Contingent Vses utterly therby overthrown As if before the Statute of 27 H. 8. Tenant for life had been the remainder over in Fee to an Vse
to be given for the Plaintiff Gawdy conceived that it is executed by the intent but not by the letter of the Statute for the purpose was to remove all the Estate from the Feoffee and to put it in Cestay que use wholly to wit in possessions to the Vses which were in Esse and in aleyance as to the Vses which were to come and contingent and now by the same Statute the contingency of the possession shal go in licence of the contingent Vse and now an Vse limited to one for life with Remainder over to the Heirs of the body of I. S. or to the first Son of I. S. shall be in the same manner as if Land at this day had been letten to one for life with Remainder over to the Heirs of the body of I. S. or to the first Son of I. S. and not otherwise for the quality which he had in the Vse the same by the very letter of the Statute he shall now have in the possession and Estate of the Land and the Statute is not to undo any Vse but to transfer an Estate in the Land to the Vse But he said That by the Feoffment made to Christopher the Contingent remainder which was devested in Stretchly and Iohn Chudleigh depending upon the Estate which Sir Iohn Saintleger and his Co-feoffees had for the life of Christopher is utterly gone and destroyed in the same manner as where a Lease is made for life the remainder to the right Heirs of I. S. or to the Heirs of the body of I S. if the Tenant for life dies or aliens wherby he makes a forfeiture and determines his Estate in the life of the said I. S. his Heir shall never have the Land by the remainder afterwards because he was not in Esse as an Heir at the time when the Estate ended for there cannot be a remainder without a particular Estate neither can it stand or be preserved And as in this case without a particular Estate of Free-hold a Remainder cannot be no more in the case now in question being now become by means of the Statute as if it had been an Estate executed in possession and for this cause only he conceived that Judgment ought to be given against the Plaintiff And Clench agreed with this opinion in all and both of them agreed if there be none to take the Vse according to the limitation at the time when it falleth to be in Possessions that he shall never take it although it happen to be in Esse afterwards Clark said that Uses were not at Common Law but grew by sufferance of time as appeareth by the words of the Statute it self and the mischief and subtlety which was before this Statute was not in the Fine Feoffment or other Assurances of Land but by means oâ— the Uses limitted therupon contrary to that which was used in the ancient course oâ— the Common Law and the Statute was made to reduce the Common Law to its ancient force and course and therfore ought to conceive such a construction as may agree with the purpose of the makers of the Statute and therfore the best construction of this Statute is not to execute other manner of Uses but in some cases to extinguish them as where it is such as will make the case in as ill or worse condition then it was before the making of the Statute It hath been agreed by all that the Statute doth not execute any Use which was suspended at the time of the making of the Statute as by reason of a Disseisor or the like hapning before and if it doth not execute the Use which is in suspence for the right which he had in the Use how can it execute the Use which hath not any being for in such cases of Infants not born as here untill they be in Rerum natura the Use cannot have any being And in the same manner in all cases where the Vse is not to rise but upon a future contingent And what good shall this Statute do if these leaping Vses shall arise without being impeached Nothing but alwaies nourish a Viper in the bosom of the Law which is quite against the intent of the makers of the Statute The Law was made to preserve peace amongst the Subjects and to assure their Possessions as many other Statutes did that were made about this time as the Statutes of Fines Wills and others But if the exposition of this Statute shall be as the other side hath taken it it will make the confusion which will happen therupon intollerable and much worse then it was before the Statute was made and as Walsh said if no assurance can be made to be forcible against such a contingent Use this will make it worse then it was before And hesaid that it was not to be compared to the interest of Lands to begin at a time to come nor to the case where a man devise that his Land shal be sold in which case be shall not be impeached by any manner of assurance to be made in the mean time by the Heir and the reason is because the Vendee takes by the Will under the Estate of the Heir and not by the sale and therfore upon the matter he conceived that the Plaintiff ought to be barred Periam said that Uses were at Common Law and to prove it he vouched 24 H. 8. abridged in Brook And he said that there have been alwaies trusts Ergo Uses ab initio but they had not such estimation at the beginning as they have had by continuance of time and so it was of Copyholds And these Uses at Common Law bind but in privity according to the trust but do not bind in the possession of him who cometh to the Land in the Post But now by the Statute all trusts are gone and the Estate of the Land it self transferred to the Use and now the Use guides the Land and not the Land the Use And the Statute did not intend to destroy any Use but to bring it back to the Possession according to the course of the common Law and to avoid the fraud And as before the Statute the Use it self in such a case of Contingency was in obeyance for the time so now the Estate it self is in obeyance by the Statute which wills that he shall now have an Estate in the Land it self of such a quality as he had before in the Use for the Statute puts all cleerly out of the Feoffees and it is not inconvenient to have a Possession so to a Contingent Use and if it had not been in the words of the Statute yet as hath been sayd it shall be so taken by the intent of the Statute for it never was the intent of the makers of the Statute to do wrong to any by means of the Statute And therfore he put the case of Cramner who made a Feoffment to the use of himself for his life and after his decease to the use
time to come and therfore by this exposition much more to the disinherison of the Heir then it was before the making of this Statute And which is more mischievous if a Feme putein happen to be in such a house who happen to have Children in Adultery these Bastards shall have the Land against the will of the Father to the utter disinherison of the true Heirs and against the intent of him who made the limitation by which we may see the just Judgment of of God upon these who attempt by humane pollicy to circumvent the divine providence of God for the time to come and of this also I have seen an example And now to the mischief that men do not know against whom to bring their Actions to sue for their Rights and it is cleer that now by such an exposition they shall be now in much worse condition then they were before for before the Action was given against him who received the Profits which is now gone by this Statute in the cases of Free-hold and therfore if the other exposition shall hold place it is cleer that untill the Statute of 13 Eliz. men might have been by means of this Statute put out of all remedy to recover their rights by any manner of Action as some put it in practice as to make Feoffments to the use of the Feoffor and his Heirs untill any intend to bring an Action against him for this Land and then over to others upon the like limâ—tation with a Proviso to make it void at his pleasure and the like and what mischief shall then be for the time upon such an exposition such that Justice therby cannot be done to the Subject and what an absurdity shall it be to say that such an Exposition can stand with the intent of the Makers of the Law And to that which hath been argued on the other side and first to that which was said by Walmsley That the Right Estate and Possession is wholly out of the Feoffee and vested to the Vses which have their beeing by the Statute and that upon the Contingents hapning their Estates uncouple and give place to the contingent Vse then executed and that the execution therof shall be by a Possession dâ—awn to it out of the Possession which was before executed by the Statute in another I say that this Statute can by no means have such an exposition for this is as much as to say that an Vse may arise upon an Vse contrary to what is adjudged 36 H. 8. That a Bargain and Sale by a Deed indented and enrolled cannot be at this day of Land to one to the Vse of another And if a man enfeoff another to the use of I. S. and his Heirs and if I. N. pay such a summ that then the said I. S. and his Heirs shall be seised of the same Land to the use of the said I. N. and the Heirs of his body I. â— paies the money yet the Vse doth not rise out of the Possession of the said I. S. But if it had been that upon the payment the first Feoffee and his Heirs shall stand seised to the use of the said I. N. and the Heirs of his body it shall be otherwise therfore somthing remains to the first Feoffee in the Judgment of the Law And I remember that when I was a Counsellor at Law in the time of the Lord Dyer where a Feoffment was made to the Vse of one for life with Remainders over with restraint to alien and with power given to Tenant for life to make Leases for one and twenty years or three lives it was much doubted whether this power so limited to him without words in the Assurance that the Feoffee and his Heirs shall stand seised to these Vses shall be good to make such Leases or not And therfore suppose that a man bargains and sells Land to one for his life by Deed indented and inrolled and make therin a Proviso that the Tenant for life may make such Leases this is to no purpose as to power to make a Lease but the strongest case which he put was that of 30 H. 8. which I agreed to be Law as it is there put whether it were before or after the Statute of 27 H 8. for it is not there put that the Feoffment was made upon any consideration to the stranger in which case although he had no notice of the first Covenant yet in such a case he shall take the Possession subject to the Vse to which it was bound by the present Covenant But if you consider the case well you shall see that it was a case before the Statute for it followeth presently in the same case that it is there said that it is not like the case where the Feoffees in Vse fell the Land to one who hath no notice of the first Vse wherby it appeareth that it was a case before the Statute for otherwise there had been no cause to have spoken then of the Feoffees to an Vse and by the same it appeareth if the Covenantor had bargained and sold the Land to another the same Vse had never risen upon the Covenant and therfore it is cleer against the Law that the Possession shall be bound wâ—th such an Vse in whosoevers hand it comes And to that which Peâ—â—am said in the case of these Contingent Vses they shall now by the Statute be in the same degree as if Land it self had been so conveyed and that now the Land shall be in Contingency in stead of the Vse and that by such manner it shall be executed and that by such means all is utterly out of the Feoffees because the Statute was made to determine all â—â—â—ter of trust to be hereafter reposed in any Feoffee this is well spoken but not well proved for as I have said before it is an exposition quite contrary to the letter and intention of the Law And I agree as hath been said if there be none to take the Use at the time that it falleth to be in possession according to the limitation that he shall never take it afterwards no more of an Use upon the Statute then of â—n Use at Common Law As if an Use be limitted for life the remainder to the right Heirs of I. S. if the Estate for life be determined in the life of I S. the remainder shall never vest afterwards in the right Heirs of I. S. no more then if an Estate had been so made But this makes for me to wit that the Estate upon the Uses executed by the Statute shall be of the same condition as Estates in possession were at Common Law and that they being executed ought also to be such of which the Common Law makes allowance And by way of argument I agree for the time that it is as hath been said by them who maintain that an Use may be in suspence as to that which is an Use in its proper nature for it is
not properly said an Use untill that it be said in Esse to take the Profits themselves But I am to turn this Argument against him who made it for if it be so the Use can never be in suspence and iâ— so it follows that no Possession by means of any such Use can be in suspence but staies where it was before to be executed when the Use happens to be in beeing But as to that that a Reversion or Remainder may be of that which we call an Use so also may such a Use be in suspence in the same manner as the Possession it self but not otherwise And as to Cramners Case formerly put the Law is so because nothing appeareth in the case to be done to the disturbance of this contingent Vse in the interim before it happen But upon the Case put of the Lady Bray upon which it hath been so strongly relied it was thus The Lord Bray made an assurance of certain Lands to the use of certain of his Councell untill the Son of the said Lord Bray should come to the age of 21. years for the livelyhood of the said Son and of such a Wife as he shall marry with the assent of the said Councell and then to the use of the said Son and of the said Wife and of the Heirs of the body of the said Son The Father dies the Son was become in Ward to the King after which one of the said Councellors dies the King grants over the Wardship of the said Son after which the said Lord Bray by the assent of his Guardian and of the surviving Councellors marries the Daughter of the then Earl of Shrewsbury after which the Husband aliens the same Land to one Butler and dies and upon Action brought by the said Lady against the said Butler for the same land she was barred by Judgment and upon what reason because she was not a person known when the Statute was made which must be in every case of a Freehold in Demesne as well in case of an Use as in case of a Possession And therfore a Lease for years the Remainder to the Heirs of I. S. then living is not good and the same Law of an Vse And so it was agreed by all the Iustices very lately in the case of the Earl of Bedford but in these Cases it remaineth to the Feoffor and because it doth not appear at the time of the assurance who shall be the Wife of the said Son so that there was not any to take the present Free-hold by name of the Wife of the Son she takes nothing by the assurance but this reason makes for our side to wit That if there were none to take the Free-hold in Demesne from the Use when it falleth he shall never take it The other reason in this Case was because she was not married by the consent of all the Counsellors for that one was dead nor according to the power given by the agreement but by the authority of the Guardian that the power which the Father had upon his Son was ceased And Nota That by a Disseisin the contingent Use may be disturbed of his Execution but there by the regresse of the Feoffee oâ— his Heirs when the Contingent happen it may be revived to be executed But by the release of the Feoffee or his Heirs the Contingent in such a case by Popham iâ—â—â—â—red oâ— all possibility at any time to be executed And to that which hath been said that the generall and universall Assurances of men throughout all the Realm at this â—ay arâ— by means of Vses and that it shall be a great deal of danger and inconvenience to draw them now in question or doubt and that it now trembleth upon all the Possessions of the Realm and therfore it shall be too dangerous to pull up such Trees by the roots the Branches wherof are such and so long spread that they overshadow the whole Realm Popham said That they were not utterly against Uses but only against those and this part of them which will not stand with the publike Weal of of the Realm and which being executed shall make such an Estate which cannot stand with Common Law of the Realm or the true purport of the Statute and therfore he said that it was but to prune and cut off the rotten and corrupt branches of this Tree to wit that those which had not their substance from the true Sap nor from the ancient Law of the Realm nor from the meaning of the Statute and so to reduce the Tree to its beauty and perfection The same reason he said might have been made in the time of Edw. 4. against those Arguments which were made to maintain the common Recoveries to bar Estates-tail But if such a reason had been then made it would have been taken for a bare conceit and meer trifle and yet Vses were never more common then Estates-tail were between the Statute of Donis conditionalibus and the said time of Edw 4. But the grave Iudges then saw what great trouble hapned amongst the people by means of Intails and what insecurity happened by means therof to true Purchasors for whose security nothing was before found as we may see by our Books but collaterall Warranty or infinite delay by Voucher and thus did the Iudges of this time look most deeply into it wherupon upon the very rules of Law it was found that by common Recovery with Vouchers these Estates-tail might be barred which hath been great cause of much quiet in the Land untill this day that now it begins to be so much troubled with the cases of Vses for which it is also necessary to provide a lawfull remedy But he said plainly That if the Exposition made on the other side shall take place it will bring in with it so many mischiefs and inconveniencies to the universall disquiet of the Realm that it will cast the whole Common-wealth into a Sea of troubles and endanger it with utter confusion and drowning And to that which was said That a Remainder to the right Heirs of I. S. or to the Heirs of the body of I S. or to the first Son as here are so in the custody of the Law that they cannot be drawn out that therfore no forfeiture can be made by the Feoffment made by him who hath the particular Estate To that he said That a Disseisin made to the particular Estate for life draws out such Remainders to the right Heirs as is proved expresly by 3 H. 6 where it is holden that a collaterall Warranty bars such a Remainder in obeyance after a disseisin And by Gascoigne 7 H. 4. If such a Tenant for life makes a Feoffment in Fee it is a Forfeiture but he conceived that in the life time of I. S. none can enter for it but this is not Law and when by the Feoffment the particular Estate is quite gone in possession and in right also the remainder shall never take
effect by the very rules of Littleton And by 27 H. 7. which is That a Remainder cannot be unlesse there be an Estate upon which it may have dependency which there it cannot but in the case of a Disseisin made to a particular Estate it is otherwise because there the Estate remains in right And to say that it shall not be a Forfeiture because the Feoffment was made to Christopher who then had the Fee-simple which was limited to the right Heirs of Sir Richard Chudleigh this is not so for by 41 E. 3. The Tenant for life himself who also had a Remainder in Fee-simple in himself depending upon a mean Estate-tail in another made a Feoffment and by it committed a Forfeiture to him in the Remainder in tail But if Tenant for life Remainder in tail Remainder in Fee enfeoff him in the Remainder in tail this is a Surrender of his Estate for the immediate Estate which was in him wherupon this Term Judgment was given in the Kings Bench for Fraine the Defendant against Dillon who was Plaintiff And it is entred Hill 31 Eliz. Rot. 65. Baynes Case 10. AT the Sessions holden at Newgate presently after this Term the case was this one Baines with another came in the night time to a Tavern in London to drink and after they had drunk the said Baynes stole a cup in which they drunk in a Chamber of the same House the Owner of the said House his Wife and servants then being also in the House and the cup being the Owners of the said Tavern wherupon he was indited and committed Burglary this matter appeared in the Inditement and agreed by Popham Anderson and Periam with the Recorder and Serjants at Law then being there that this was not Burglary and yet it was such a Robbery whereby he was ousted of the benefit of his Clergy by the Statute of 5. E. 6. Cap. 9. and was â—anged 11. ANd at the Sessions then next ensuing 〈◊〉 holden upon one who had stolen a silver Bason Ewer of the then Bishop of Worcester the sale made openly in the day in a Scriveners shop in London to a stranger the question was demanded of the Court whether the property were changed by this Sale so that the Bishop shall not have his Plate againe because it was alledged that they prescribed that every one of their shops in London are good Markets overt through all London every day in the week but Sunday But agreed by Popham Egerton Anderson Brian and others skilfull in the Law then being there that such a generall custome is not good and that this Sale made there albeit it were openly in the shop so that every one passing by In which case Shops in London are Markets Overt what not might see it shall not bind the property as it shall doe in Market overt for a Scriveners Cutlers Shop or the like is not proper for the Sale of I late nor a place to which men will go to seek for such a thing lost or stole But a Goldsmiths Shop is the proper Shop for it as the Drapers Shop is for Woollen cloath or the Mercers Shop for Silk and the like and to such men will go to seek for things of the like nature that are lost or stolen and not to a Scriveners Shop or the like And they agreed also that a private Sale made in the Shops which are proper to the nature of the thing sold so that the Passers by cannot in reason see it in their passage cannot bind for reason upon which the Law is founded will not admit any such custome Hillary Term 37 Eliz. in the Kings Bench. Westby versus Skinner and Catcher 1. IN Debt by Titus Westby Plaintiff against Thomas Skinner and John Chatcher late Sheriffs of London Defendants for 440 l. upon Nihil debet pleaded and a special Verdict found the Case appeared to be this See this case in Coke 3. Report fol 71. 6. to wit One Anthony Bustard with others were bound in a Recognizance in the nature of a Statute-staple of 440 l. to the Plaintif wherupon the Plaintif sued Execution out of the Chancery against the said Anthony and the other that were bound with him for the Bodies Goods and Lands of the said Obligers which writ of Execution was delivered to the said Defendants the 8th day of Prisoners in execution to be delivered over to the new Sheriff by Indenture and all the executions to be therin moved September 30. Eliz. the Defendants then being Sheriffes of London and the said Anthony being then in Newgate in Execution in the custody of the said Defendants for 240 l. at the suit of one Robert Deighton and that afterwards to wit the 20 th day of October in the same yeer the said Defendants were discharged and removed from their said Offices and Hugh Offeley Richard Saltonstall were then made Sheriffes of London and that the said Anthony being in Execution for the one and the other debt the said Defendant the said 20th day of October by Indenture delivered the said Anthony to the said new Sheriffes in Execution for the said debt of the said Robert Deighton not giving them any noâ—ice of the said Execution made for the Plaintiff and suffered the said Anthony to goe at large And whether the Defendants shall be charged for this escape was the question And the escape was alledged by the Declaration to be suffered by the said Defendants the said 20. day of October 30 Eliz. and it was moved by Tanfield that the new Sheriffs ought to take notice of their Prisoners remaining in the Goal at their coming into their Office at their perill and ought to enquire and search for the causes that then were in custody and not to deliver them of their own head without due course of Law And he put the case That if the old Sheriff had been dead in the mean time before the new Sheriffs had been made shal this be an excuse to the new Sheriffs that they had no notice for what cause this Anthony had been in Prison if they suffer him to escape And he said that it shall not no more here but per Curiam the new Sheriff shall not be charged with this Escape as to the 440 l. of which they had no notice for if this case which was private in the knowledge of the ancient Sheriff only upon a Writ directed to them at the suite of any party the new Sheriffs cannot by intendment have any knowledge unlesse it be given to them by the old Sheriffs to whom the Writ of Execution was directed and delivered And the case of one Dabridgecourt who was Sheriff of Warwick and had one in Execution whom he kept in a private Prison by himself for all his Executions in the Town of Warwick and when he was discharged of his Office and a new Sheriff made Dabridgecourt said to the new Sheriff That he had such a one in Execution
it was not an immediate descent in Deed but upon the operation of Law which gave Wardship and the like but not to prejudice any third person And he said that although the Queen or other Lord upon eviction of the Land descended or the determination of the Estate therof may resort to Lands devised or assured and take a third part therof yet therby the Devise or Assurance remains effectuall against the Heir but this is by a speciall clause in the Statute of 34 H. 8. which gives it to them but no such remedy is given to the Devisee to help him if his part be abridged or evicted And the words are precise to wit If the part left or assigned to the King or to any Lord at any time during their Interest therin be evicted c. that they shall have so much oâ— the two parts residue as shall make a full third part of the remainder not evicted c. Wherby it appeareth that this is given only for the benefit of the Lords and not of the Heir nor of the Devisee fâ—r if after the Interest of the Queen or other Lord be determined this which was left he evicted from the Heir it shall not be helped against the devise but the Devise remains good to the Devisee against the Heir for the whole Land devised wherby it appeareth that it was the very purport and intent of the Statute that the Devise remain as it was at the time of the death of the Devisor without having regard to that which hapneth Ex post facto unlesse for this point helped by this speciall clause of the Statute and this is for the Lord and his Interest only and for no other And by him also cleerly the Statute which is an explanatory Law shall never be taken by equity in the precise point explained to impugne the point of explanation as here the Statute wills that the Estate of Inheritance comprised in the former Statute shall be explained to be Fee-simple it cannot now by any equity be as to the power to make a Devise which is meerly given by the authority of the Statute said to be of any other Estate then Fee-simple of which a Devise may be made And therfore if Land be given to another and his Heirs for the term of another mans life a Devise cannot be made of this because it is not an Inheritance in Fee-simple but only the limitation of a Free-hold And where the Statute saith having a sole Estate we cannot by any equity that it shall be taken of any joynt Estate as to make any disposition of that which she had in Ioynture and therupon the greater part resolved that Iudgment shall be given against the Plaintiff for the Defendants Southwell versus Ward 4. IN a second deliverance between Richard Southwell Esquire Plaintiff and Miles Ward Avowant by Demurrer upon the Avowry the Case appeared to be this That Iohn Prior of the Church of Saint Faiths in Horsham in the County of Norfolk was seised in his Demesne as of fee in the right of his said Priory of 8. Messuages 300. acres of Land 30. acres of Meadow 60. acres of Pasture and 200. acres of Wood with their Appurtenances in Horsham aforesaid And so seised the said Prior with the assent of his Covent by their Deed indented shewn forth bearing date the first day of Ianuary 13 E. 4. and by licence of the King aforesaid granted to William then the Master of the Hospitall of St. Giles in Norwich and to the Brothers of the same Hospitall and to their Successors 200. Fagots and 200. Focalls called Astle-wood yearly to be taken of all the Lands and Tenements of the said Prior and Covent in Horsham aforesaid by the Servants of the said Prior and Covent and their Successors yearly to be carried to the said Hospitall at the costs and expences of the said Prior and Covent and their Successors at the Feast of St. Michael or 20 s. of lawfull money for them at the election of the said Master and Brethren and their Successors to take yearly in the same Lands and Tenements in Horsham to the use of the poor and infirm persons there being or coming So that if it happen the said Fagots and Focalls or the said 20 â— for them to the said Master and Freres in form aforesaid to be arrear in alâ—o part c. then they may distrain in the said Lands and Tenements and the Distresse detain until they be fully satisfied of the said Fagots and Focals or of the said 20 s. for them as is aforesaid with this Proviso further That if at any one or more times the said Master and Brethren have chosen to have the Fagots and Focals yet at any other time they make the 20 s. for them and although they have taken the 20 s. for them once or oftner yet at any other time they may take the Fagots and Focals themselves and that they may so vary tâ—ties quâ—ties and dâ—strain for them accordingly reasonable notice being given of their Election in form aforesaid And the said Master and Brethren granted by the same Deed to the said Prior and Covent and their Successors that they or others sufficiently warranted by them would give sufficient notice of their election yearly the first Sunday of April in the Church of the said Hospital to some Officer of the said Prior and Covent and their Successors if they send any thither for this cause By force of which Grant the said Master and Brethren were seised of the said yearly rent of the said 200. Fagots and 200. Facals called Astlewood accordingly and so being seised they by their sufficient Writing enrolled of Record in the Chancery in the first year of the late King Ed. 6. gave and granted to the same King the said Hospitall all the Lands Tenements and Hereditaments of the said Hospitall To have and to hold to him and his Heirs and Successors for ever wherby the said King was therof and of the said annuall Rent seised accordingly and so seised the 7. day of May in the same year the said King Edw. by his Letters Patents bearing date the same day and year granted the said Hospitall and the rent of the said Fagots and Focals and other the Premisses to the Major Sheriff Citizens and Commons of the City of Norwich and to their Successors for ever and for 1600. Fagots and 1600. Focals of the said annuall rent of 200. Fagots and 200. Focals being arrear at the Feast of S. Michael the Arch-angel 23 Eliz. the said Ward took the Distresse and made Conusance as Bailiff to the said Major Sheriff c. And it was moved that the Avowry was not good first because it being matter of Election which was granted to the Master and Brethren and their Successors to wit the Fuell or the 20 s. it doth not appear that they ever made any election of the one or the other and untill it appeareth that they have
in execution in all Circuits That if a man taken for Felony be examined by a Justice of Peace it appeareth that the Felon is not bailable by the Law and yet the Justices commit him to Goal but as upon suspition of Felony not making mention for any cause for which he is not bailable wherby he is brought before another Justice of Peace not knowing of any matter why he ought not to be bailed wherupon they bail him these Justices ought to be fined by the Statute of 1 2. Phil. Mar. for they offend if they bail him who by the Statute of Westm 1. is not bailable and therfore they at their peril ought so to inform themselves before the bail taken of the matter that they may be well satisfied that such a one is bailable by Law and therfore observe well the Statute of Westm 1. cap. 18. who is bailable and who not by the Law And it seems that no Justice of Peace could have bailed any one for Felony before the Statute of 1 Rich. 3. cap. 3. which is made void by 3 H. 7. cap. 3. for before this he ought to have been bailed by the Sheriff or other Keeper of the Prison where he was in Ward or by the Constable and by no other Officer unlesse Justices of the Kings Bench Justices in Eyre or Justices of Goal-delivery Herbin versus Chard and others 2. IN Trespasse by William Herbin Plaintiff against Chard and others Defendants for a Trespasse made at Pynon Farm in Netherbury and Loder in the County of Dorset the Case upon the Demurrer appeared to be this The Lord Mordant was seised of the Farm in his Demesne as of Fee and so seised demised it to Philip Fernam Elizabeth his wife and Iohn Fernam the eldest Son of the said Philip for term of their lives and of the Survivor of them and the said Eliz. died after which the said Philip his Father demised his part of the Farm by his Deed indented dated 13. Mart. 32. Eliz. to Philip his Son and Toby Fernam his Son for eighty years immediatly after the death of the said Philip the Father if the said Iohn Fernam shal so long live with divers remainders over for years depending upon the life of the said Iohn after which the said Philip the Father died and Iohn survived him and demised the said Farm to the Plaintiff upon whom the Defendants entred in right of the said Philip and Toby and whether their entry were congeable was the question And it was moued by Goodridge of the Middle-Temple that the entry of the Defendant was not lawfull because the said John was now in by the Lessor and not by his joynt Companion And further he had no power to dispose therof beyond his own life for suppose that he makes a Lease therof for years and afterwards grant over his Estate to a stranger and dies the Lease for years is therby determined albeit his joynt Companion be yet living and that his Estate continues And yet he agreed that if had made a Lease for years to begin at a day to come as at Michaelmas following or the like that this had been good for it is an Interest in the Grantee to be granted over for the presumption that it might be executed in his life but in the other case there is not any possibility that he who hath not but for his life can demise it to begin after the Estate made to him is determined But on the other part it was moved that the Demise remains in force for the life of the said John for at the first every one had an interest for the life of the other also and therfore if one Ioynt-tenant for life make a Lease for years in possession and dies the Lease yet continues And Crook the younger alledged that it was adjudged at last Hartf Term If a man possessed of a Term for years in right of his Wife makes a Lease for years of the same Lands to begin after his death dies during the Term without other alteration of it and the Wife survives him that now the Lease made by the Husband is good and that the like case as this by the opinion of Clench and Walmsley was decreed to be good in the Chancery Arton versus Hare 3. IN a second deliverance between Francis Arton Plaintiff and Henry Hare Avowant the case appeared to be this William Cocksey Esquire was seised in his Demesne as of Fee of the Mannor of Wolverton in the County of Worcester and so seised in Octab. Mich. 7 Eliz. levied a Fine of the said Mannor to certain persons to the use of the said William and Alice his Wife and the Heirs of William untill a marriage had between Martin Croft and Anne Wigstone and after this marriage to the use of the said William and Alice his Wife and the Heirs of the body of the said William and for defualt of such Issue to the use of the said Martin Crofts and Anne and the Heirs Males of the body of the said Martin upon the body of the said Anne begotten untill the said Martin should go about to alien sell grant or give the said Mannor or any parcell therof or to suffer any Recovery or levy any Fine therof or make any discontinuance c. And after the Estate of the said Martin and Anne and of the Heirs Males of their bodies to the Premisses by any such attempts determined and finished then to the use of the said Anne for her life and after to the use of the Heirs Males of the body of the said Martin upon the body of the said Anne lawfully begotten and for default of such Issue to the use of the Heirs of the body of the said Martin and for default of such Issue to the use of Giles Croft brother of the said Martin and the Heirs Males of his body untill c. as before and after to the use of the Heirs of the body of the said Giles and for default of such Issue to the use of Edmund Crofts the third brother of the said Martin and of the Heirs Males of his body as is before limited to the said Giles with remainders over afterwards the marriage was had between the said Martin and Alice after which the said Martin and Giles died without Issue without any thing done by the said Martin to determine his Estate or by the said Giles to determine his Estate if any had been And it was agreed by all the Court that as this case is no remainder can enure over to the said Giles without an attempt precedent by the said Martin to determine his Estate because the Estate of Giles is not limited to begin but upon such an attempt precedent And in the same manner Edmund shall have nothing untill the Estate of Giles determine by some attempt made by him if the said Giles had an Estate because the Estate of Edmund depends upon the attempt made by Giles
Execution shall be sued against him as Ter-tenant 2. There is not any lien as Heir for the Iudgment doth not mention the Heir and therfore he cannot be charged unlesse he be expresly bound and in the Record of the Recovery it doth not appear that the first lien shall bind the Heir for he declares that he bound himself and not that he bound himself and his Heirs 3. If the Heir were bound in the Obligation so that he were once bound as Heir yet the Iudgment determines the specialty so that now he is not bound and in the Iudgment the Heir is not mentioned as in 10 H. 4. 21. 24. If an Abbot contract to the use of the house without consent of the Covent this shall bind if he dies but if he takes an Obligation of the Abbot and then he dies this shall not bind the house for the Contract is determined by the Obligation and this is the reason that in the time of E. 3. in a recovery upon debt the Obligation was cancelled 4. Here he cannot be charged as Heir for it appeareth by the Record Where a debt is recorded upon bond the Obligation was cancelled that his Father is living for it is brought against him as Heir apparant which he cannot be but during the life of his Father And as to the objection that in this case he shall have his age and therfore shall be charged as Heir Non sequitur for if execution be sued against the Heir of a Purchasor he shall have his age and yet he is not Heir neither can charged as Heir to the Conusor But because it is a rule in Law that the Heir which hath by discent shall not answer where his Inheritance may be charged during his Nonage Whitlock to the same intent because the Heir is not charged here as Heir but as Ter-tenant wherby his false Plea shall not hurt him with which Jones also agreed and said that he here considered three things 1. That the lien of the Ancestor binds the Heir 2. How the Heir shall behave himself in pleading 3. Our point in question For the first there are two things requisite to bind one as Heir 1. A lien expresse for if one bind himself and not his Heir this shall not bind his Heir in any case 2. A discent of Inheritance for without this he shall not be bound by the act of his Ancestor and he is bound no longer then Assets discend for he alien before the Writ purchased the lien is gone 2. He ought to behave himself truly and plead truly and confesse the assets discended to him when debt is brought against him as heir otherwise his own Lands shall be charged with the debt as it is in Pepys case in Plow Com. But where it is said in Pepys case that upon a Nihil dicit or Non sum informatum c. If the Iudgment passe upon them that it shall be generall I am not of that opinion for the common experience of the Courts is that such a generall Iudgment shall not be given against the Heir unlesse it be upon a false plea pleaded with which agrees Lawsons case Dyer 81. and Henninghams case Dyer 344. where the Iudgment passed by Nihil dicit so that the saying in Plow 440. a. that what way soever the Heir be condemned in debt if he do not confesse the Assets c. that it shall be his proper debt is not now taken for Law And I also hâ—ld that if the Heir plead falsly and there is found more Assets Where upon a false plea by an Heir the Plaintiff may elect to take the Assets in execution or an Elegit of all his Land that yet it is in the election of the Plaintiff to charge him and to take execution of the Assets only or to take an Elegit of all his Land and he is not bound to take an Elegit of all his Land in this case for otherwise this inconvenience may arise If the Heir hath a 100. acres by discent and two by purchâ—se if upon the false Plea of the Heir the Plaintiff cannot have any other execution but an Eligit of the Moyety of his Lands then he by this is prejudiced for otherwise he might have all he Assets in execution and so the Heir by this way shall take advantage of his false plea. 3. He held as Whitlock before and for the same reason Doderidge Iustice How the Heir shall be bâ—und by the act of his Father is worthy of consideration upon which Prima facie the Books seem to disagree but being well considered accord with excellent harmony I have considered this case it was moved at Reading Term and because my Notes are not here I will speak more briefly and will consider 1. Hâ—w an Heir shall be charged upon the Obligation of his Father and as to that in debt against an Heir he is charged as Heir so that at this day it is taken as his proper debt wherby the Writ is in the Debet and Detinet How an Heir shall be charged upon the Obligation of his Father but in the Detinet only against Executors But in former time from the 18. of Ed. 2. till 7 H. 4. if an Executor had Assets the Heir was not chargable but in 7 H. 4. the Law changed in this point for now it is accounted his own debt and debt will lye against his Executor as it is said in Plow Com and so against the Heirs of the Heir to many generations albeit of this Plowden makes a doubt and his plea that he had nothing at the day of the Writ purchased nor ever after is good for if he alien the Assets he is discharged of the debt in regard he is not to wait the action of the Obligee 2. The Heir shall be châ—â—ged upon or Recognisance not as Heir but as Ter-tenant for he is not bound in the Recognisance but only the Conusor grant that the debt shall be levied of all his Lands and Tenements but not against his Heirs And here he is not meerly as Ter-tenant for he shall not have contribution agâ—â—st â—her Ter-tenants but only against those who are Heirs as himself is but to all other intents he is Ter-tenant and so charged Why an Heir is not chargable for debt after he hath fold the assets as 32 E. 3. and 27 H. 6. aâ—â— 3. That upon a Iudgment as our case is the Heir shall be charged as Ter-tenant and not otherwise The Book which hath been cited viz 33 E. 3. Execution 162. is expresse in the point the broken years of Fitzherbert are obsâ—urely reported but by comparing of cases it will appear to be our case exâ—resly 4. That albeit an Heir shall be charged upon the Obligation of his Ancestor where he is particularly bound yet upon his false plea no execution shall be but upon the assets So it seems to me that in the principall case the Iudgment shall be speciall and it seems to be a
shall take effect by Livery where by Jurolist 49 Grants of the King  Where voyd 61 H HEire Where he shall be charged where not 152 153 I JMparlance  Not before a Declaration is entred 150 Imprisonment  Where justifiable 13 Indictments 107 134 210 taken before Coroners Where quashed 202 Upon the Statute of 8. H. 9. of forcible entry of copy-hold Lands 205 Inn-keepers 128 179 may detain a Horse untill he be satisfied for his meat 127 Inquisition  by the Coroner in case of death must bee Super visum corporis per sacramentum proborem legatum hominum where not hood 210 Indiciments  for stopping a Church-way where good 206 For being a Night-walker where good 208 If good in one part shall not be quashed  Joyâ—ture  where it may be waived 88 Joynt-tâ—nants â—6 Justâ—fication 13. 161 Justices of Peace of Gaol delivery and Nisiprius and their power 17 Judgmâ—nts 211. 212 by Nihil dicit 153 Where a Judgment reversed without Errour brought where noâ— 181 Entred in the Book as a Memorandum stayed by a subsequent order of Court 181 L. Lâ—ases 99. 106. 57 Void by Acceptance 9 Where in Reversion good 9 By Tenants for life or years to begin after his death 96 By a Copyholder upon a License 105 Where determined without entry 27. 53. 64. Lessce for life without impeachment â—f Wast may make a Lease excepting the Trees 193 What interest he hath in them ib. Leeâ— 141 Libels  Where a privaâ—e Letter is punishable aâ— a Libell 139 Legacies not payable but upon demand 104 Livery of Seâ—sin 103 Where words spâ—ken upon the 〈◊〉 do amount to a Livery 47 49 Liâ—â—se  〈◊〉 couâ—termandable 151 〈◊〉 a Copâ—holder to make Leaâ—es 150 〈◊〉  〈…〉 by Bargain and Sale by word 48 Lunatick  The Action must be brought in his name 141 M. MAgis dignum continet in se minus 35 Mayhem 115 Market Overt  Where the Sale shall be good where not 48 In a Scriviners Shop of Plate void 84 What kind of Sale alters the property 84 Monstrans of Deeds 113 Melius Inquirendum  Where it shall issue where not and what to be found upon it 54 55 Misnosme 151 In Grains 57 Of a Corporation 58 N. NOtice 37. 151. Of a condition of payment where to be given 12 Taken strongly against the Party 12 Of one Sheriff to another Sheriff of the persons in Execution 85. 86 Where requisite 136. 164 Nusance 166 Errecting a Dove-coat by a Freeholder no Nusance 141 O. OBligation 165. discharged by the act of God 98 not to be avoided by the act of the Obligor himself 40 To the use of a Feme Covert shall go to her Administrator not to the Husband 106 One forfeited revived and good 16 Office and Officers  Where an Office is void Ipso facto 28 Forfeited and by what act 117 Of his own wrong 149 Office Trove 25 26 Where Lands shall be in the King without Office 19 Relates 20 helps the King to the meane profits 30 Countervailes an Entry And where no entry is requisite in case of a common person There needs no Office found for the King 53 Where an Estate shall be devested out of the King without Office 63 Where not 64. without Returne or Monstrans de droit 64 Oyer  Where of a condition where not 202 P. PAtents 16 Where the Patentee shall take advantage of a condition to avoid a Lease 27 Void for the generality in the Grant 61 Void notwithstanding the words Ex certa sciaentia 61 Perjury where not punishable 144 Pleadings 28. 42. 101. 109. 152. 150. 160. 163. 206. Void because double Plea 113. 114 Nul tiel in rerum natura no Plea in appeal of Mayhem 115 Perpetuities 97. not tollerable 80 Plenarty by Induction of a Lay-man 37. Binds not the King 133 Proviso How to be construed 27 For a Limitation 53. 117. 118 119 Where repugnant and void 87 Possessio fratris 35 Principall Accessare 107 Prisoners Must be delivered over at the Gaol 85. 86 Presentation 132 Proofs What Proofs are to be allowed in the Ecclesiasticall Court 59 Priviledges  Grant by the Pope not allowable 157 Prescription 169 For Common for Vicinage good 101 Difference betwixt it and Custome and how to be taxed 201 â—roperty 38 What kind of Sale alters the property 84 â—rohibition 59. 126. 159. 197 For a Seat in the Church 140 Severall Prohibitions in one Cause 156 Prerogative 26 Q. QViâ— juris clamat 63 〈◊〉 warrantâ— 150. 180 Quare Impedit by an Executor for a disturbance in vite Testator 189. 190 191 R. RAvishment of Ward by an Executor 190. 191 Recovery 6. 5 Releaâ—es 28. 132 Exâ—cuted where avoided by Proviso 16 Of all demands will dischaâ—ge a rest in â—uturo 136 Relation 12 Of a Baâ—l 132 Of Entry of Judgement 132 Return of the Sheriff of a Capias upon a day not Dies faci good 205 Request 160. 211. 212 Upon payment upon a Contract is not necessary 211. 212 Remainder 97 in Fee not good upon a Lease for years 4. 82 Must take effect when the particular Estate determines for life wiâ—hout impeachment of Wast whether he may cut Trees duâ—ing the life of Tenant for life 196. 74 Rents  Rent and Pension all one in a Demand in a â—ecovery 23 Where the Executor shall have the rent upon a Lease of the Wâ—ves land 145 Restitution  Of an Alderman to his place 134 Of one put out of his Office 176 Reservatâ—on 145 195. how construed 17 Revivor 167 S. SAvingâ— in an Act of Paâ—liament how construed 17 Scire 〈◊〉  Lâ—es â—â—t against the Bail till a Capiaâ— be awarded of the Principall 186 Seals 161 Scandalum Magnatum 66 Sheriffs Oâ—e Sheriff must deliver over the Prisoners to the other by Indeâ—ture 85. 86 Surplusage  shall not abate a Writ 24 Surrender 9. 31. 84. 110. 125 129 Of the Husband of the land of the Wife no discontinuance 38 39 Of an Infant Copyholder void 39 Of an Alderman of his place 134 Of Tenant for life in remainder good without Deed 137 138 T. TAles  where awarded of Aliens 36 Tender  where not good to avoid a condition 20 Title  where must be made 1 2 Trusts not abridged 8 Their difference from Uses 77 Traverse 1. 101. 103. not necessary where there are two Affirmatives but where they do not agree 67 Traverse upon a Traverse 101 Circumstances not traversable 161 Treason 122 Triall  Of the same person upon another Indictment after Attainder upon a former Indictment 107 Transporting Corn 149 Trespasse 161 Where Vi armis e contr 192 Tithes 140 Where discharged by Prescription or Priviledge 156 De animalibus inutilibus animalibus utrilibus and the difference 197 Of Sheep and their pasturing wool c. 157 V. VErdict 19 void 202 Found for thâ— Deâ—endants because no 〈…〉 â—â—tred for one of them 145 Volenti non fit injuria 9 Use and Uses  What a Use is 71 How to be construed 3 Not to be abridged 8 Void upâ—n a tender 18 Raised by word upon a good consideration where good where not 47 49 Raiâ—ed upon Contracts 48 Considerations to raise Uses 48 49 A bare Covenant writing without consideration will not raise an Use 50 What persons cannot stand seised to Uses 72 Uses contingent not executed by the Statute of 27. H. 8. 72 Uâ—es contingent destroyed by a Feoffment 72 Uses grounded upon fraud 77 Use cannot râ—â—e out of a Uâ—e 81 Uses in contingency barred by a Release of the Feoffees 83 Use upon a Bargain and Sale for years passeth without inrolement of the Deed 38 Use amerced upon a Fine upon render without a Deed 105 W. WAger of Law 127 Words  Where the King shall have a third part of the Land of the Ward and of other land setled upon a marriage 54 Wast 24. 25 47 Damages in Wast 24 Warrants  When a Warrant is returned upon Record in case of the King it is as strong as an Office found 20. 28 29 Warranty  doth bind an Infant if his Entry is not lawfull 71 cannot enlarge an Estate 138 Wills 152 Words which make a condition in Wills 8 Writ  of enquiry of damages 24 Where not abated 24 Originall shall be taken as they are written 101 FINIS